Kirkland-Veenstra v Stuart & Ors

WORDS AND PHRASES - 'person representing the Crown'.

No appearance required for the appellant or third respondent

1 I have had the benefit of reading the reasons of Maxwell P and Nettle JA in draft form.

2 This Court, as an intermediate appellate court,[1] is bound by the decisions in Enever v The King,[2] State of Victoria v Horvath[3] and Jarratt v Commissioner of Police (NSW).[4] As set out in the reasons of Nettle JA, those cases are clear about the nature of the relationship between a police officer and the Crown. I do not consider that the Police Regulation Act 1958, the Appeal Costs Act 1998 or other legislation relevantly changes the nature of that relationship at this time.

3 Whether this area of law is apt for reform is a matter for the legislature. In this regard, I note in passing that, if enacted, the Police Regulation Amendment Bill 2008 will repeal s 123 of the Police Regulation Act and implement provisions such that the situation under consideration here would not arise.

4 In the circumstances, I agree with the reasons of Nettle JA in concluding that the first and second respondents were not representing the Crown within the meaning of s 38 of the Appeal Costs Act. I would, therefore, grant a certificate.

5 On 29 February 2008, the Court allowed the appeal in this matter. The Court held that the first and second respondents, who are police officers ('the officers'), owed duties of care respectively to the appellant and to her husband, now deceased. The appellant is suing the officers for damages for negligence, the alleged breach of duty being their failure to take reasonable steps to prevent her husband from committing suicide.

6 As respondents to a successful appeal, the officers have applied under s 4 of the Appeal Costs Act 1998 for an indemnity certificate in respect of their costs of the appeal. The only question which arises for determination on this application is whether the grant of a certificate is precluded by s 38 of the Act, which provides:

A court must not grant an indemnity certificate in favour of the Crown or any person representing the Crown.

7 A similar question arose in Applicants A1 and A2 v Brouwer (No 2).[5] In that case, the Chief Commissioner of Police was a respondent to a successful appeal in a civil proceeding. The Court ruled that the Chief Commissioner was a 'person representing the Crown' for the purposes of s 38, and that s 38 operated to preclude the grant of the certificate sought. The Court expressly left open the question whether an ordinary member of Victoria Police was a person representing the Crown for the purposes of s 38.

8 The submission for the officers is that a police officer does not 'represent the Crown' and, hence, that s 38 does not preclude the grant of the certificate they seek. It is argued that, since the 1906 decision of the High Court in Enever v The King:[6]

[I]t has been accepted that at common law, police officers are statutory officeholders exercising independent and original discretions, who are personally liable for tortious acts or omissions committed in the course of their duties.

Reliance is also placed on the statement by this Court in Horvath v Victoria[7] that

[Police] officers are still recognised in this State as exercising powers and duties on their own responsibility.

9 It is submitted for the officers that this Court should adopt the approach taken, and affirm the conclusion reached, by Gillard J in Kirsch v Dolman.[8] In that case, a police officer had made application to a magistrate, pursuant to s 464T(1) of the Crimes Act 1958, for an order that Mr Kirsch undergo a compulsory procedure. In breach of the express requirements of the Crimes Act 1958, the order was made in the absence of Mr Kirsch, who successfully applied to the Supreme Court for an order in the nature of certiorari to quash the order.

10 The police officer was the respondent to the proceeding, and applied under s 4 for an appeal costs certificate. Gillard J held that s 38 of the Act did not preclude the grant of a certificate, because:

[A] member of the [police] force who is investigating a crime is not acting in any capacity as the Crown or representing the Crown. It is not until the filing of a presentment that the Crown becomes involved in any prosecution.

It is clear law that when a police officer lays a charge, he is not acting for or on behalf of the Crown but acting purely and simply on his own decision. In my view, a member of the force, when investigating a crime and applying for a statutory order that a suspect provide a sample, is not acting as the Crown or representing the Crown.[9]

11 Counsel for the officers submits that this decision should be preferred to the conflicting decision of Crawford J in the Supreme Court of Tasmania in Smith v Visser (No 2).[10] In that case, a police officer sought an indemnity certificate in respect of a successful motion to quash a sentence imposed by a lower court. The officer had been the informant in the prosecution. Crawford J refused the application on the basis that the grant of a certificate was precluded by s 19(2) of the Tasmanian appeal costs legislation, which prohibited the grant of an indemnity certificate 'in favour of the Crown'. His Honour expressed the view that:

... although not in the sense of master and servant, a police officer is a servant or officer of the Crown but not of the Government.[11]

in any event need very strong reasons before exercising the discretion to grant an indemnity certificate when only the Government could benefit from it. If the Government wants to benefit from the Appeal Costs Fund in the way private litigants sometimes do, it should be required to contribute to the fund in the way private litigants are required to do.[12]

According to the officers' submission, his Honour was here impermissibly equating a police officer with the Government.

12 As will appear, I consider that in this legislative context the equating of the two accords with Parliament's intention, and that the approach of Crawford J is to be preferred.

13 The question which arises is one of statutory interpretation. The phrase 'person representing the Crown' has no fixed meaning. Axiomatically, the words must be construed in their statutory context and having regard to the purpose of the legislation. The question is whether, for the purposes of the Appeal Costs Act and s 38 in particular, the officers should be regarded as 'persons representing the Crown'.

14 In Wynyard Investments Pty Ltd v Commissioner of Railways (NSW),[13] the High Court was concerned with a statutory provision deeming the Commissioner for Railways to be 'a statutory body representing the Crown'. The Commissioner had sought to invoke Crown immunity under a particular statute. In his dissenting judgment, Kitto J said:

The question in such a case is not fully stated by asking, as often is asked, does the particular subject "represent" the Crown. The question is really not one of attributing to the subject the status of a representative of the Crown; for, even where "representative" is an apt word to use, representation of the Crown generally is not what such a contention must be understood as necessarily asserting. The question concerns only the relationship to the Crown in which the individual stands in respect of the particular matter in which the impact of the relevant provisions is incurred.[14]

This passage was adopted with approval by McHugh, Gummow and Heydon JJ in McNamara v Consumer Trader and Tenancy Tribunal.[15]

15 The present case does not concern Crown immunity. But Kitto J's analysis in Wynyard Investments helpfully elucidates the nature of the inquiry. To decide whether the officers 'represent the Crown' for the purposes of s 38, it is necessary to consider 'the relationship to the Crown in which the [officers] stand in respect of the particular matter in which the impact of the relevant [provision] is incurred'. The 'particular matter' in which s 38 has 'impact' is the appeal in which the officers were respondents. For reasons which follow, I consider that in respect of that matter the officers are properly to be regarded as 'representing the Crown.' A different statutory context might call for a different conclusion.[16]

16 The statutory context of s 38 is as follows. The success of an appeal depends upon error being shown in the decision below.[17] Ex hypothesi, the respondent to a successful appeal has been put to the expense of fighting the appeal because of the error of the judicial officer (or tribunal) at first instance. The policy underpinning the Appeal Costs Act is that the respondent should be able to seek reimbursement of that expense out of the public purse, the judicial (or tribunal) error being treated as a failure in the justice system as an arm of government.

17 Seen in this context, the purpose of the bar which s 38 creates is plain enough. It is that the Appeal Costs Fund should not be available to a government respondent, whose costs of defending a successful appeal are assumed to be borne by the public purse. The evident policy of s 38 is that the costs which a government respondent incurs in resisting a successful appeal, being costs occasioned by a failure elsewhere in the government system, should lie where they fall.

18 In my view, the officers are properly to be regarded as government respondents for this purpose. They have not been sued in their capacity as private citizens but in their official capacity as police officers. The proceedings have been defended on the basis that their conduct was wholly consistent with the proper discharge of their duties as police officers. Relevantly, their defence has been conducted - at public expense - by the Victorian Government Solicitor, itself an agency of government. This is unsurprising, given that the questions raised in the litigation have implications for Victoria Police as a whole. As is apparent from the reasons for judgment in the appeal,[18] one of the principal arguments advanced on behalf of the officers concerned the ramifications for the discharge of police duties if a duty of care were held to exist in such circumstances. The power of intervention which s 10 of the Mental Health Act confers is exercisable by any police officer who finds himself or herself in circumstances calling for the exercise of the power.

19 No occasion arises in this statutory context to consider the common law doctrine that a police officer while on duty is to be regarded as exercising a personal or 'original' discretion for which he/she alone is responsible. As is apparent from both Enever and Horvath, the context in which that peculiarity of the relationship between a police officer and the Crown becomes relevant is the quite different context of vicarious liability and, in Victoria, s 123 of the Police Regulation Act. No question of that kind arises here.

20 So far I have concentrated on the position of the officers as respondents to the appeal, for it is their participation in the appeal which gives rise to the s 38 question. But, to the extent that it is relevant to consider more generally the relationship between police officers and the Crown, what was said in Applicants A1 & A2 leads to the same conclusion.

21 In that case, the Court (Maxwell P, Neave and Redlich JJA) held that -

• 'The Crown' in s 38 means the executive branch of government.
• Victoria Police is an agency of the executive government. Its members perform important governmental functions.[19]
• Police officers are servants of the executive government and hence - by

I would add that, when carrying out duties as a member of the police force, each police officer is bound by the oath taken in accordance with s 13(1) of the Police Regulation Act 1958 - that he/she 'will well and truly serve our Sovereign Lady the Queen as a member of the Police Force of Victoria.'[20] In other words, when acting as a member of Victoria Police, the officer is serving the Crown.[21]

22 Viewed in this way, a police officer while on duty is as much a public servant - a representative of the Crown - as is any other officer of the executive government when discharging the functions of his/her office. That is presumably the basis on which the actions of police officers are treated as amenable to judicial review.[22]

23 This characterisation of police employment is consistent with the approach taken by the High Court in Jarratt v Commissioner of Police (NSW).[23] That is, it is appropriate to view the relationship between the officers and the Crown for the purposes of s 38 as governed not by a 'pristine common law principle'[24] but by 'a statutory scheme of office-holding and employment' and by 'modern conceptions of government employment and accountability.'[25]

24 For these reasons, I would refuse the officers' application for a certificate.

25 On 29 February 2008, the Court allowed an appeal from a judgment of a County Court judge to dismiss the appellant's claim against the respondents. The

first and second respondents are members of the Victoria Police and in essence the appellant's claim against them is that they failed in their capacities as police officers to do sufficient to prevent the appellant's husband's suicide. Having lost the appeal, the first and second respondent now seek an indemnity certificate in respect of costs pursuant to s 4 of the Appeal Costs Act 1998. A question has arisen, however, as to the application of s 38 of the Act, which provides that:

A court must not grant an indemnity certificate in favour of the Crown or any person representing the Crown.

26 In allowing the appeal, the majority of the court held that where the first and second respondents in the course of a routine police patrol found the deceased in a depressed condition, it was reasonably foreseeable that, if they did not apprehend the deceased under s 10 of the Mental Health Act 1986 and either take him to a hospital or wait for medical attention, it would result in injury to the deceased. Section 10 of the Mental Health Act 1986 provides that:

1. A member of the police force may apprehend a person who appears to be mentally ill if the member of the police force has reasonable grounds for believing that -
   1. the person has recently attempted suicide or attempted to cause serious bodily harm to herself or himself or to some other person; or
   2. the person is likely by act or neglect to attempt suicide or to cause serious bodily harm to herself or himself or to some other person.

27 The question, therefore, for present purposes is whether a police officer on routine police patrol, who determines not to exercise the power of apprehension conferred by s 10 of the Mental Health Act, is representing the Crown.

28 In my view, a police officer in that position is not representing the Crown. At least as the law stands, the powers of a constable, whether conferred by common law or statute, are exercised as a matter of original authority and not on behalf of the Crown. As Griffith CJ explained in Enever v The King:[26]

In considering whether a master is liable for the acts of his servant the test is, as stated by Crompton, J., in Sadler v. Henlock,[27] quoted with approval by Bowen,L.J., in Donovan v. Laing, Wharton, and Down Construction Syndicate,[28] whether the party sought to be made responsible retained the power of controlling the act. Now, the powers of a constable, _qu_â peace officer, whether conferred by common or statute law, are exercised by him by virtue of his office, and cannot be exercised on the responsibility of any person but himself. If he arrests on suspicion of felony, the suspicion must be his suspicion, and must be reasonable to him. If he arrests in a case in which the arrest may be made on view, the view must be his view, not that of someone else. Moreover, his powers being conferred by law, they are definite and limited, and there can be no suggestion of holding him out as a person possessed of greater authority than the law confers upon him. I am disposed to think that this is a sounder basis for the rule of the immunity of those who appoint constables for their acts than that suggested by Wills J. A constable, therefore, when acting as a peace officer, is not exercising a delegated authority, but an original authority, and the general law of agency has no application.[29]

29 To the same effect, the Privy Council said in Attorney-General for New South Wales v Perpetual Trustee Company (Limited):[30]

Their Lordships can now express their final opinion upon the case. They repeat that in their view there is a fundamental difference between the domestic relation of servant and master and that of the holder of a public office and the State which he is said to serve. The constable falls within the latter category. His authority is original not delegated and is exercised at his own discretion by virtue of his office: he is a ministerial officer exercising statutory rights independently of contract.

30 Recently, in Jarratt v Commissioner of Police (NSW),[31] the High Court confirmed that what was said in Enever remains the law.

31 In State of Victoria v Horvath[32] this court considered the effect of s 123 of the Police Regulation Act 1958 which so far as is relevant provides that:

(1) A member of the force ... is not personally liable for anything necessarily or reasonably done or omitted to be done in good faith in the course of his or her duty as a member of the police force ...

(2) Any liability resulting from an act or omission that, but for sub-section (1), would attach to a member of the force ... attaches instead to the State ...

The court held that the purpose of the section is to provide an indemnity in favour of police officers acting reasonably and in good faith in the exercise of independent discretion in the course of their duties.[33] But, as was also held, the section does not alter the relationship between police officers and the Crown or render the Crown vicariously liable for the actions and omissions of police officers in the exercise of independent discretion. Rather the position is that:

...unlike some States and Territories, the terms of s 123 of the Victorian Act do not make the State vicariously liable for the torts of police officers committed in the exercise of their independent discretion. Such officers are still recognised in this State as exercising powers and duties on their own responsibility. Although the provisions of s 123 are undoubtedly designed to be protective of police officers and, thus, to be given no narrow construction they are nevertheless intended to operate so as to attach liability to the State only where that liability has been incurred for things necessarily or reasonably done in good faith in the course of duty. In other words, it seems to us that subs (1) of s 123 is intended to 'carve out' an area of conduct of police officers in respect of which they will be immune from personal liability and - despite imperfections of drafting - subs (2) is intending to attach to the State the liability against which the police officer is immunised by subs (1). If that is the intention of the section, as we think it is, then it does not transfer liability for conduct warranting an award for exemplary damages because, as we have already said, such conduct must necessarily be the antithesis of conduct for which subs (1) provides immunity.[34]

32 No doubt there are some functions of police officers in which the officer may act as the agent of the Crown and thus represents it. As O'Connor J observed in Enever,[35] a police officer is in a general sense the servant of the Crown. The officer holds office under the Police Regulation Act, which gives the government power to employ, pay and dismiss him or her, and the officer is probably required to perform many duties besides those imposed upon a constable at common law or by statute, in the performance of which he or she will be the servant of the Government and they will be directly liable for any neglect or default committed by the officer in the course of his or her employment. One example, to which the Chief Justice referred in argument in this case, is of a police officer who is employed as an examiner of firearms. Another which comes to mind is a police officer employed in keeping records. In each of those case the officer would be subject to the direction and control of the Crown in the performance of duties and the Crown would be vicariously liable for the officer's neglect or default. But as O'Connor J also explained, where a power is vested by common law or statute in a police officer as such, and is exercisable by him or her regardless of Government direction, the police officer cannot be said to be acting on behalf of the Crown in the exercises that power. It is rather his or her own act done in the exercise of a duty as a police officer.

33 As it appears to me, s 10 of the Mental Health Act 1986 is in terms such that it vests the power of apprehension to which it refers in a police officer as such and not in the Crown. If so, it is not to be exercised on behalf of the Crown. As with other powers of arrest and apprehension, a police officer is in the first instance responsible to the public for the proper exercise of the power vested in him or her by Parliament, and if the Crown were to interfere with the police officer in the exercise of the power, it would be no answer to a prosecution by a member of the public for neglect of duty that the police officer had been commanded by the Crown to abstain from exercise of the power.[36]

34 It follows, in my view, that the exercise or failure of a police officer to exercise the power of apprehension conferred by s 10 of the Mental Health Act 1986 is not something in which the police officer concerned represents the Crown within the meaning of s 38 of the Appeal Costs Act.

[1] Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22; (2007) 230 CLR 89, [135].

[2] [1906] HCA 3; (1906) 3 CLR 969.

[3] [2002] VSCA 177; (2002) 6 VR 326.

[4] [2005] HCA 50; (2005) 224 CLR 44.

[5] [2007] VSCA 269.

[6] [1906] HCA 3; (1906) 3 CLR 969.

[7] [2002] VSCA 177; (2002) 6 VR 326, 350 [62] (Winneke P, Chernov and Vincent JJA).

[8] [2001] VSC 234; (2001) 123 A Crim R 331.

[10] [2001] TASSC 118; (2001) 10 Tas R 115.

[13] [1955] HCA 72; (1955) 93 CLR 376.

[15] [2005] HCA 55; (2005) 221 CLR 646, 659 [37].

[16] See Commonwealth v Rhind [1966] HCA 83; (1966) 119 CLR 584, 600 (Barwick CJ); Townsville Hospitals Board v Townsville City Council [1982] HCA 48; (1982) 149 CLR 282, 288-9 (Gibbs CJ).

[17] See Norbis v Norbis (11986) [1986] HCA 17; 161 CLR 513, 519 (Mason & Deane JJ).

[18] See [24]-[29] and [106]-[116].

[19] "... [T]he administration of justice, both criminal and civil, and the preservation of order and the prevention of crime ... are among the most important functions of government ...": A-G for New South Wales v Perpetual Trustee Co Ltd [1955] HCA 9; (1955) 92 CLR 113, 120 (Privy Council).

[21] Police Regulation Act s 13(3) provides that the officer, having taken the oath, is deemed to have thereby entered into a written agreement with the Crown.

[22] See Mark Aronson, Bruce Dyer and Matthew Groves, Judicial Review of Administrative Action (3rd ed, 2004) 301-2.

[23] [2005] HCA 50; (2005) 224 CLR 44.

[24] Ibid 50 [7] (Gleeson CJ). In that case, the common law principle was that Crown servants held office at the Crown's pleasure.

[26] [1906] HCA 3; (1906) 3 CLR 969.

[27] [1855] EngR 106; 4 E & B 570.

[28] [1893] 1 QB 629, 634.

[29] [1906] HCA 3; (1906) 3 CLR 969, 977.

[30] [1955] HCA 9; (1955) 92 CLR 113, 129.

[31] [2005] HCA 50; (2005) 224 CLR 44, 65 [70] (McHugh, Gummow and Hayne JJ), 81 [119] (Callinan J).

[32] [2002] VSCA 177; (2002) 6 VR 326.

[34] Ibid, 350 [62], citations omitted (emphasis added).

[35] [1906] HCA 3; (1906) 3 CLR 969, 990; cf Smith v Visser [2001] TASSC 118; (2001) 10 Tas R 115, 127 [32] (Crawford J).

[36] Enerver v The King [1906] HCA 3; (1906) 3 CLR 969, 993 (O'Connor J).