Court of Appeal (ACT)|2003-02-21|Before: Higgins CJ, Gyles JJ

Mensinga v DPP [2003] ACTCA 1 (21 February 2003)

NICOLE MAREE MENSINGA and GAIL MAREE MENSINGA v DIRECTOR OF PUBLIC PROSECUTIONS [2003] ACTCA 1 (21 February 2003)

NEGLIGENCE - appeal from Master - duty of care - whether Director of Public Prosecutions owes duty of care in relation to the exercise of the discretion to prosecute - whether statutory duty imposed on Director of Public Prosecutions for breach of which action lies against the Director of Public Prosecutions by victims of crime - .

Administrative Decisions Judicial Review Act 1989

Do Carmo v Ford Excavations Pty Ltd [1984] HCA 17; (1984) 154 CLR 234

Sullivan v Moody (2001) 207 CLR 562

Byrne v Australian Airlines Ltd [1995] HCA 24; (1995) 185 CLR 410

X (Minors) v Bedfordshire County Council [1995] UKHL 9; [1995] 2 AC 633

Crimmins v Stevedoring Industry Finance Committee [1999] HCA 59; (1999) 200 CLR 1

Pyrenees Shire Council v Day [1998] HCA 3; (1998) 192 CLR 330

Crimmins v Stevedoring Industry Finance Committee (2000) 8 Torts LJ 133: Professor Martin Davies

Caparo Industries Pty Ltd v Dickman [1990] UKHL 2; [1990] 2 AC 605

Hill v Chief Constable of West Yorkshire [1989] 1 AC 53

Doe v Board of Commissioners of Police for Metropolitan Toronto (1989) 58 DLR (4th) 396

Edwards, The Law Officers of the Crown (1964) 230

Elguzouli-Daf v Commissioner of Police [1994] EWCA Civ 4; [1995] QB 335

Emanuele v Hedley & Ors [1997] ACTSC 13; (1997) 137 FLR 339

Courtney v State of Tasmania [2000] TASSC 83

Reg v Thompson (1991) 58 A Crim R 81

Barton v The Queen [1980] HCA 48; (1980) 147 CLR 75

Jane Doe v Board of Commissioners of Police for Municipality of Metropolitan Toronto et al (1990) 72 DLR (4th) 580

APPEAL FROM THE MASTER OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

AUSTRALIAN CAPITAL TERRITORY ) No. SCA 46 of 2001

ON APPEAL FROM THE MASTER OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN: NICOLE MAREE MENSINGA and GAIL MAREE MENSINGA

AUSTRALIAN CAPITAL TERRITORY ) No. SCA 46 of 2001

ON APPEAL FROM THE MASTER OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN: NICOLE MAREE MENSINGA and GAIL MAREE MENSINGA

This is an appeal against an order of the Master striking out a statement of claim accompanying an originating application as disclosing no reasonable cause of action in so far as it affected the respondent.

On 24 December 1999, the first appellant, Nicole Maree Mensinga, and the second appellant, Gail Maree Mensinga, by originating application, commenced proceedings against The Commissioner, Australian Federal Police as the first defendant and The Director of Public Prosecutions as the second defendant (the respondent in these proceedings).

Those proceedings alleged negligence and breach of statutory duty against both defendants arising from an alleged abduction and rape of the first appellant on 26 December 1993. The second appellant is the first appellant's mother and damages are claimed in respect of both appellants for injuries in the nature of shock, emotional distress, anxiety and post traumatic stress disorder said to be consequent upon the failure properly to investigate and prosecute the perpetrator of the crimes said to have been committed against the first appellant.

The statement of claim accompanying the original application is deficient in alleging the facts upon which the claims are made. Something of what those facts might be can be gleaned from a chronology that was lodged with this Court the day before the hearing of this appeal. From that document it seems that complaint is being made about the investigation conducted by the Commissioner, Australian Federal Police rather than any specified acts of the respondent to this appeal. The only factual allegation made in the statement of claim is that during 1994 the appellants discussed the circumstances relating to the alleged abduction and rape of the first appellant with a prosecutor employed by the respondent who apparently advised in words to the effect "that the first appellant would have a slim chance in a criminal court". By implication, it seems that what is alleged is an omission on the respondent's part to act by instituting proceedings against the alleged perpetrator.

The chronology goes on to make a number of allegations mainly directed to the first defendant's activities and other matters not apparently relevant to the case sought to be made against the respondent.

The function of a statement of claim is to set out a cause or causes of action which gives or give rise to legal liability for (in respect of) the relief claimed against that defendant. It is the fact or combination of facts which gives rise to a right to sue (Do Carmo v Ford Excavations Pty Ltd [1984] HCA 17; (1984) 154 CLR 234, at 245 per Wilson J).

"It was the duty of the [respondent] to properly conduct the prosecution of the perpetrator of the abduction and rape of the first plaintiff and to exercise reasonable skill and care in the performance of its functions."

The particulars of negligence and breach of statutory duty ("the particulars") which follow this allegation make it clear that it is not the conduct of a prosecution that is in issue but the failure to institute a prosecution that is the gravamen of the appellants' complaint against the respondent. There is no allegation made of a duty to institute a prosecution or a pleading of facts which might give rise to such a duty except an allegation that "during 1994 [the appellants] discussed the circumstances relating to the abduction and rape of the [first appellant]".

Unhelpfully, the particulars are framed in the same terms as the appellants' particulars applicable to the first defendant in the proceedings except, in the case of some of them, where there is an interchange made between the concept of prosecution and the concept of investigation. It is alleged that both the first defendant and the respondent "failed to institute any criminal prosecution against the perpetrator of the abduction and rape of the [first appellant]." In the case of the respondent, the particulars also assert a failure to properly investigate or exercise reasonable care in the investigation of circumstances relating the abduction and rape of the first plaintiff, without the allegation of a corresponding duty on the respondent or an allegation of the factual circumstance that might indicate that the respondent had that duty.

Foreshadowed amendments of the statement of claim

The appellants seem to have recognised some of the deficiencies in the pleadings. In their written submissions before the Master, they sought to meet objections to the form of their pleadings. Should their pleading in respect of the Director of Public Prosecutions as a defendant be defective, they foreshadow substituting the office holder personally, or the Australian Capital Territory, as the proper party. Further, they refer to possible amendment of the statement of claim "should further particularisation be necessary".

An obstacle to their claim that the appellants seem to have recognised in their written submissions to the Master was the existence of s 33A(1) of the Director of Public Prosecutions Act 1990. That provides:

"No action, suit or proceeding lies against a person who is or has been - (a) the Director; or (b) a member of the staff of the Office; or (c) a person acting under the direction or authority of the Director or a member of the staff of the Office; in relation to an act done or omitted to be done in good faith in the exercise or purported exercise of a power, or the performance or purported performance of a function or duty, of the Director under this Act or any other law."

That provision came into effect on 5 September 1995. Proceedings were not instituted until 24 December 1999. Whilst the only act referred to in the chronology and referable to the respondent occurred before s 33A took effect, if an omission is to be alleged, it may well be that it occurred or, at least, continued, after s 33A took effect. The appellants did assert that s 33A does not preclude a private right of action but that proposition was not further argued. In the appellants' written submissions to the Master, they also foreshadow "further particularisation of this aspect of the claim", presumably in relation to allegations that might be made as to lack of good faith.

In any event, in the proceedings before this court, the appellants did not put forward any proposed or draft amendments which might be sought to be made to the statement of claim. On behalf of the appellants, Mr David Rowe sought, and was granted, leave to appear for the appellants. In his oral submissions he raised possible issues relating to bad faith and misfeasance in public office. Mr Rowe is not legally qualified and frankly admitted his lack of knowledge in the law and understanding of the structure of proceedings.

To make allegations of the nature alluded to by Mr Rowe in his oral submissions, is a serious matter. They are allegations which should only be made after professional legal advice has been obtained upon a proper factual foundation which has an evidential basis. Mr Rowe appeared to accept this proposition and those matters were not taken any further.

Accordingly, this Court is only called upon to consider the decision of the Master to strike out the statement of claim as pleaded against the respondent. The case as pleaded in respect of the respondent alleges that the respondent "acted negligently and failed to perform its statutory functions". Attempting to determine on the matters as pleaded what might constitute such a cause of action is not an easy task and requires the court to make assumptions as to what the appellants might say was the duty of care owed by the respondent to them: In Sullivan v Moody (2001) 207 CLR 562 at 576 Gleeson CJ, Gaudron, McHugh, Hayne and Callinan JJ said:

"A defendant will only be liable, in negligence, for failure to take reasonable care to prevent a certain kind of foreseeable harm to a plaintiff, in circumstances where the law imposes a duty to take such care."

In the present case, no issue has been raised thus far as to the question of foreseeable harm. Although, for the purposes of determining this matter, it may be assumed in respect of the first appellant, its assumption is not really warranted as far as any case that the second appellant may have. However, the matter has proceeded so far on the basis of the assumption that this issue need not be further explored.

The statement of claim only alleges that the second defendant had a duty "to conduct the prosecution of the perpetrator of the abduction and rape of the [first appellant]". The appellants' written submissions that were put before the Master state:

"The statutory duty upon which the claim relates arises from the obligations imposed by sections 4 and 5 of the Victims of Crime Act 1994 and obligations imposed under the Director of Public Prosecutions Act referred to at clauses 14(c) and 14(h) of the Statement of Claim. In this regard particular significance is attached to sub section 4(1) of the Victims of Crime Act 1994 which provides: '(a) a victim should be dealt with at all times in a sympathetic, constructive and reassuring manner and with due regard to his or her personnel [sic] situation, rights and dignity;'."

Clauses 14(c) and 14(h) of the statement of claim state as particulars of the asserted negligence and breach of statutory duty:

"(c) failing to comply with the obligations imposed by the Director of Public Prosecutions Act ... (h) failing to instruct prosecutors to take into account when prosecuting criminal conduct the needs of victims and provisions of the Victims of Crime Act 1993."

The obligations that the appellants say are imposed by the Director of Public Prosecutions Act 1990 are not specified and from the provisions of that Act it would appear that the "obligation" is derived from the function that s 6(1) of the Act gives to the Director in relation to indictable offences, being the function to institute and conduct prosecutions on indictment. The Director is given no power to investigate offences but s 14(1) of that Act permits the Director to request the chief police officer "for the assistance of police officers in the investigation of matters specified in that subsection".

As no prosecution had been instituted, it cannot be said that there was any breach of a duty properly to conduct the prosecution of the perpetrator of the alleged crimes (assuming that either at common law or under the Act there is such a duty). In other words, as pleaded, if there is a duty of care, it arises because the respondent has not instituted a prosecution against the alleged perpetrator for the commission of the crime alleged by the first appellant as having been committed against her.

The duty that the appellants seem to be contending for, however, is not described in that way in the passage that we have referred to in the appellants' written submissions before the Master. Those submissions seem to seek to include within the scope of the duty said to be owed by the respondent the provisions of s 4 and s 5 of the Victims of Crime Act 1994. Those sections provide:

"4 Governing principles In the administration of justice, the following principles shall, as far as practicable and appropriate, govern the treatment of victims: (a) a victim should be dealt with at all times in a sympathetic, constructive and reassuring manner and with due regard to his or her personal situation, rights and dignity; (b) a victim should be informed at reasonable intervals (generally not exceeding 1 month) of the progress of police investigations concerning the relevant offence, except where such disclosure might jeopardise the investigation, and, in that case, the victim should be informed accordingly; (c) a victim should be informed of the charges laid against the accused and of any modification of the charges; (d) a victim should be informed of any decision concerning the accused to accept a plea of guilty to a lesser charge or a guilty plea in return for a recommendation of leniency in sentencing; (e) a victim should be informed of any decision not to proceed with a charge against the accused; (f) where any property of a victim is held by the Crown for the purposes of investigation or evidence - inconvenience to the victim should be minimised and the property returned promptly; (g) a victim should be informed about the trial process and of the rights and responsibilities of witnesses; (h) a victim should be protected from unnecessary contact with the accused and defence witnesses during the course of the trial; (i) a victim's residential address should be withheld unless the court directs otherwise; (j) a victim should be relieved from appearing at preliminary hearings or committal proceedings unless the court directs otherwise; (k) a victim should be given an explanation of the outcome of criminal proceedings and of any sentence and its implications; (l) a victim who is known to have expressed concern about the need for protection from an offender should be informed of the offender's impending release from custody. 5 Observance of principles A person who performs a function in the administration of justice shall, in addition to any other matter that is relevant, have regard to the governing principles referred to in section 4."

In addition, s 3(2) of that Act provides:

"A reference in this Act to the performance of a function shall, unless the contrary intention appears, be read as including a reference to the performance of a duty and the exercise of a power."

It can be readily said that the respondent, in performing a duty or exercising a power under the Director of Public Prosecutions Act 1990, is required to have regard to the governing principles set out in s 4 but the failure to have regard or to give effect to those principles may be an aspect of, but is not determinative of, the duty or power being exercised. It is difficult to see how those matters can be said to give content to a duty to institute proceedings.

In their written submissions on appeal, the appellants also refer to s 5 of the Children's Services Act 1986. Although that Act is now replaced by the Children and Young People Act 1999, it was in force during the relevant time and it is said it affects the respondent's duty of care to the first appellant. Section 5 provided:

"5 Matters to be considered concerning children (1) In any proceedings in a court having jurisdiction in the Territory, whether the proceedings are under this Act or under some other law, being proceedings against or concerning or affecting a child, the court shall, in the exercise of its jurisdiction or powers, seek to procure for the child such care, protection, control or guidance as will best lead to the proper development of the personality of the child and to the child's becoming a responsible and useful member of the community. (2) In the exercise of a power, whether under this Act or under some other law of the Territory, by a body, authority or person, being a power the exercise of which affects or concerns a child, the body, authority or person shall seek to procure for the child the matters referred to in subsection (1). (3) Subject to subsection (4), for the purpose of subsections (1) and (2), the court, body, authority or person shall have regard to such matters as seem to it or the person to be appropriate and, in particular, to such of the following as are appropriate: (a) the need to strengthen and preserve the relationship between the child and his or her parents and other members of his or her family; (b) the desirability of leaving the child in his or her own home; (c) the desirability of allowing the education, training or lawful employment of the child to be continued without interruption or disturbance; (d) the desirability of ensuring that the child is aware that he or she must bear responsibility for anything that he or she does that is contrary to law; (e) the need to protect the community or a particular person from the violent or other unlawful acts of the child. (4) For the purposes of subsections (1) and (2), the court, body, authority or person shall regard the best interests of the child as the paramount consideration. (5) In subsection (4) - "interests", in relation to a child, includes matters related to the care, welfare or development of the child."

As the first appellant had not attained the age of 18 years at the relevant time, it is said that the exercise by the respondent of functions under the Director of Public Prosecutions Act 1990 should comply with that section. Again, it is difficult to see how that provision can be said to give content to the suggested duty of care owed by the respondent.

The appellants' contention appears to be that obligations arise under these Acts for the protection and benefit of a particular class of persons (victims or children) and a combination of those Acts with the Director of Public Prosecutions Act 1990 creates a cause of action. The appellants refer to the principle stated by Brennan CJ, Dawson and Toohey JJ in Byrne v Australian Airlines Ltd [1995] HCA 24; (1995) 185 CLR 410 at 424.

"A cause of action for damages for breach of statutory duty arises where a statute imposes an obligation for the protection or benefit of a particular class of persons is, upon its proper construction, intended to provide a ground of civil liability when the breach of the obligation causes injury or damage of a kind against which the statute was designed to afford protection."

They also refer to what Lord Browne-Wilkinson said with the concurrence of the other members of the House of Lords in X (Minors) v Bedfordshire County Council [1995] UKHL 9; [1995] 2 AC 633 at 731:

"The basic proposition is that in the ordinary case a breach of statutory duty does not, by itself, give rise to any private law cause of action. However a private law cause of action will arise if it can be shown as a matter of construction of the statute, that the statutory duty was imposed for the protection of a limited class of the public and that Parliament intended to confer on members of that class a private right of action for breach of the duty."

These general principles are not in contention; their application to this particular case is.

The approaches to establishing the duty of care

The High Court cases Crimmins v Stevedoring Industry Finance Committee [1999] HCA 59; (1999) 200 CLR 1 and Pyrenees Shire Council v Day [1998] HCA 3; (1998) 192 CLR 330 were relied on extensively by the appellants in their written submissions to the Master. Those cases demonstrate different approaches by justices of the High Court in determining whether statutory bodies have a common law duty to exercise their powers and as to the existence of a duty of care in particular (see the discussion by Professor Martin Davies "Common Law liability of statutory authorities: Crimmins v Stevedoring Industry Finance Committee (2000) 8 Torts LJ 133").

In a later case, Sullivan v Moody (supra), the five judges who comprised the court, Gleeson CJ, Gaudron, McHugh, Hayne and Callinan JJ, were agreed on the approach to be taken in respect of a statutory scheme imposed upon professional persons in the investigation and reporting upon allegations of sexual abuse and the claimed imposition upon those persons of a legal duty to protect persons who were suspected of that abuse. In doing so, the Court expressly said that the approach of foreseeability, proximity and what is fair, just and reasonable espoused by Lord Bridge of Harwich in Caparo Industries Pty Ltd v Dickman [1990] UKHL 2; [1990] 2 AC 605 at 617-618 (and upon which the appellants relied before the Master) did not represent the law in Australia (at 579-80 [50]).

"Different classes of case give rise to different problems in determining the existence and nature or scope, of a duty of care. Sometimes the problems may be bound up with the harm suffered by the plaintiff, as, for example, where its direct cause is the criminal conduct of some third party (eg, Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 CLR 254). Sometimes they may arise because the defendant is the repository of a statutory power or discretion (eg, Crimmins v Stevedoring Industry Finance Committee (1999) 200 CLR 1; Brodie v Singleton Shire Council (2001) 206 CLR 512). Sometimes they may reflect the difficulty of confining the class of persons to whom a duty may be owed within reasonable limits (eg, Perre v Apand Pty Ltd (1999) 198 CLR 180). Sometimes they may concern the need to preserve the coherence of other legal principles, or of a statutory scheme which governs certain conduct or relationships (eg, Hill v Van Erp (1997) 188 CLR 159). The relevant problem will then become the focus of attention in a judicial evaluation of the factors which tend for or against a conclusion, to be arrived at as a matter of principle."

Whether there is a private law cause of action under the Director of Public Prosecutions Act 1990

The existence of a private law cause of action such as the appellants contend, involves a construction of the Director of Public Prosecutions Act 1990 that would infer that parliament intended to confer such a right or, if it could be shown that such a right was available at common law, that it was not excluded.

In Crimmins (supra) at 19 [27], Gaudron J said:

"Legislation establishing a statutory body may exclude the operation of the common law in relation to that body's exercise or failure to exercise some or all of its powers or functions. Even if the legislation does not do so in terms, the nature or purpose of the powers and functions conferred, or of some of them, may be such as to give rise to an inference that it was intended that the common law should be excluded either in whole or part. ... Where it is contended that a statutory body is not subject to a common law duty in relation to the exercise or non-exercise of a power or function because of the nature or purpose of that power, what is being put is that, as a matter of implication, the legislation reveals an intention to exclude the common law in relation to the exercise or non-exercise of that power (see Sutherland Shire Council v Heyman [1985] HCA 41; (1985) 157 CLR 424 at 500, per Deane J)."

On the other hand, in the same case at 59 [159], Gummow J said:

"To determine the manner of interaction between a particular statute and the common law of negligence, it is necessary to comprehend the legislative scheme. The starting point will commonly lie, as in the present appeal, in the terms of the statute and a determination of the scope of its operation. It obscures rather than illuminates the scheme established by the legislature to posit a common law duty of care and then determine whether the existence of that duty has been negatived by the statute, or other factors. Such reasoning may fail to clearly elucidate the interaction between the common law and statute. This lack of clarity will afford decision-makers, in both the judicial and legislative branches of government, little guidance, in particular where, as here, the statute establishes relationships, conduct or other subject matter which are not previously known to the common law and whose origins lie wholly within the four walls of the statute."

In cases concerning the activities of police in investigating crime, the common law duty has been said to be a duty to enforce the criminal law. This may be said to include the functions of controlling and keeping down the incidence of crime and to open up the question in carrying out these functions of owing a duty of care to individual members of the public who may suffer injury to person or property through the activities of criminals such as to result in liability in damages on the ground of negligence (Hill v Chief Constable of West Yorkshire [1989] 1 AC 53 at 59 per Lord Keith). Statutory duties which have been said to reflect the common law have included protecting the public and prosecuting and aiding the prosecution of offenders (Doe v Board of Commissioners of Police for Metropolitan Toronto (1989) 58 DLR (4th) 396 at 405. Duties of that kind are not reflected in the Director of Public Prosecutions Act 1990, which provides that the relevant function of the Director of Public Prosecutions is to institute and conduct proceedings for indictable offences. The Act does not impose or recognise duties of the nature referred to in the two cases cited. What is generally recognised is the public interest component in the Director's function which is referable to society as a whole not to any particular class or interest group.

The very nature of the function conferred does not readily give rise to the considerations referred to by Brennan CJ in Pyrenees Shire Council v Day (supra) at 347 [24] and [25] where he said:

"Thus a duty to exercise a power may arise from particular circumstances, and may be enforceable by a public law remedy. Where a purpose for which a power is conferred is the protection of the person or property of a class of individuals and the circumstances are such that the repository of the power is under a public law duty to exercise the power, the duty is, or in relevant respects is analogous to, a statutory duty imposed for the benefit of a class, breach of which gives rise to an action for damages by a member of the class who suffers loss in consequence of a failure to discharge the duty. The general principles of public law establish the existence of the statutory duty to exercise the power and the statute prescribes the class of individuals for whose benefit the power is to be exercised. Where the power is a power to control 'conduct or activities which may foreseeably give rise to a risk of harm to an individual' (to use a criterion stated by McHugh JA in Parramatta City Council v Lutz (1988) 12 NSWLR 293 at 328) and the power is conferred for the purpose of avoiding such a risk, the awarding of compensation for loss caused by a failure to exercise the power when there is a duty to do so is in accordance with the policy of the statute. An individual who is among the class whose interests are intended to be protected by exercise of the power has both locus standi to seek a public law remedy (Onus v Alcoa of Australia Ltd [1981] HCA 50; (1981) 149 CLR 27; Shop Distributive and Allied Employees Association v Minister for Industrial Affairs (SA) (1995) 183 CLR 552 at 557-558) and a right to compensation for damage suffered as the result of any breach of the duty to exercise the power in protection of that individual's person or property."

The Director of Public Prosecutions Act 1990 confers the function of instituting proceedings for prosecution but it provides in s 12 for the giving of directions and the furnishing of guidelines in relation to prosecutions. Those directions and guidelines can, and in fact do, affect the considerations upon which prosecutions may be instituted. A specific power is given by s 20 to the Attorney-General to give a direction or guideline relating to the circumstances in which the director should institute or conduct prosecutions for offences. Provisions of this kind are quite incompatible with the Director of Public Prosecutions owing a private duty to any person in respect of the decision to institute or not a prosecution.

In so far as the Victims of Crime Act and Children's Services Act bear upon this aspect of the respondent's function, they create the potential for conflicting claims or obligations which militates against the existence of a duty. If, as the appellants contend, these acts create separate classes of persons to whom the exercise of the function might apply, that would certainly give rise to conflicting interests in its exercise. As the Court said in Sullivan v Moody (supra) at 582 [60]:

"Similarly, when public authorities, or their officers, are charged with the responsibility of conducting investigations, or exercising powers, in the public interest, or in the interests of a specified class of persons, the law would not ordinarily subject them to a duty to have regard to the interests of another class of persons where that would impose upon them conflicting claims or obligations."

There is no authority for the existence at common law of a duty of care by those who institute prosecutions. Indeed, the existence of the specific tort of malicious prosecution indicates the private law remedy in respect of the action of improperly instituting criminal proceedings.

The Attorney-General, as the chief legal representative of the Crown in all court proceedings to which the Crown is a party, has been said to be vested with a number of wide common law powers and in criminal matters they include the filing of ex officio informations and the entering of a nolle prosequi to discontinue proceedings including where the indictment is preferred by a private individual (Edwards, The Law Officers of the Crown (1964) at 230). In Clyne v Evans [1984] FCA 263; (1984) 2 FCR 515, the Full Court of the Federal Court (MacGregor, Fisher and Neaves JJ) were not able to discern in s 71 of the Judiciary Act 1903 (Cth), which refers to the Attorney-General's power to decline to proceed further in a prosecution, a legally enforceable duty to consider an application by a person that no further proceedings be taken.

There is authority, however, that no duty of care is owed by prosecuting authorities to those whom it prosecutes: Elguzouli-Daf v Commissioner of Police [1994] EWCA Civ 4; [1995] QB 335, Emanuele v Hedley & Ors [1997] ACTSC 13; (1997) 137 FLR 339, Courtney v State of Tasmania [2000] TASSC 83. A significant policy consideration for such an approach is that referred to by Steyn LJ in Elguzouli-Daf (supra). It is the inhibiting effect that such a policy would have on the exercise of the prosecutorial function. That consideration applies equally to the decision not to prosecute and it is not at all apparent that in giving the respondent the function of instituting proceedings that a private law duty of care is assumed.

The appellants, in their written submissions before the Master said:

"...as section 33A of the Director of Public Prosecutions Act does not preclude a private right for breach of ... duty it can be inferred that parliament intended a private right of action to exist."

Section 33A gives immunity in actions, suits or proceedings for acts of the Director and his staff for acts and omissions done in good faith. The provision, which was an amendment to the original Act, does not contain the inference for which the appellants contend. Rather, it confirms the implication that the exercise of powers and functions are not subject to the duty of care for which the appellants contend by further excluding all possible causes of action including those that could not be said to have been impliedly excluded by the legislation such as defamation and injurious falsehood.

It was also contended that as the Act does not contain any detailed mechanisms for redress in respect of decisions, that factor indicates that a private right of action might be maintained. However, as the appellants themselves assert, the Administrative Decisions Judicial Review Act 1989 may apply to permit judicial review of the respondent's decisions. That Act was in place before the enactment of the Director of Public Prosecutions Act 1990. The absence of mechanisms for redress in the Director of Public Prosecutions Act 1990 therefore does not have the significance it might otherwise have.

It should be noted that the function of instituting proceedings is not exclusive to the Director. Any person can commence a prosecution if the breach of the law is of a public nature and this right is not displaced except by clear words in a particular statute or statutory instrument: Reg v Thompson (1991) 58 A Crim R 81 at 84 per Priestley JA. As has been said, there is no authority for the existence at common law of a duty of care by those who institute prosecutions. The exercise by the Attorney-General of the statutory and common law power vested in that officer to present an indictment has been held to be an unexaminable discretion not reviewable by the courts (Barton v The Queen [1980] HCA 48; (1980) 147 CLR 75) as has the power to proceed further (Clyne v Evans (supra)). Similar considerations may be said to apply to the discretion given to the Director of Public Prosecutions in the exercise of the function of instituting proceedings conferred by the Director of Public Prosecutions Act 1990.

At the conclusion of their written submissions, the appellants submitted that the Master had a conflict of interest in hearing this matter. They refer to the Master holding office as Attorney-General at the time of the offence. They further asserted that they had complained to the Master, as a Member of the Legislative Assembly "of the seriousness of the offences and the misconduct that followed the notification to the first defendant (the Commissioner, Australian Federal Police). It is not at all apparent how it is said that these facts give rise to "a conflict of interest". The matter was not raised in the hearing before the Master and not pressed in this Court.

The appellants placed considerable weight on the decision of Henry J in the Ontario High Court in Doe v Board of Commissioners of Police for Metropolitan Toronto (supra). That case was concerned with police duties to the public but in circumstances where there could be said to be a special relationship of proximity. The approach taken by the court in that case was based on concepts of foreseeability of risk and that special relationship of proximity (see the decision on appeal Jane Doe v Board of Commissioners of Police for Municipality of Metropolitan Toronto et al (1990) 72 DLR (4th) 580 at 585). The case does not assist in establishing whether there has been a breach of a statutory duty on the part of the respondent in this case nor whether, on its proper construction, the Director of Public Prosecutions Act 1990 permits a private law cause of action in making provision for the respondent to exercise the functions of instituting and conducting prosecutions.

For the foregoing reasons, the appellants cannot establish that there is a duty owed to them by the respondent on the most beneficial construction that can be put on the statement of claim in these proceedings. Their appeal against the Master's decision striking out the statement of claim, in so far as it effects the respondent, is dismissed.

I certify that the preceding forty-two (42) numbered paragraphs are a true copy of the Reasons for Judgment herein of their Honours, Chief Justice Higgins and Justice Gray.

AUSTRALIAN CAPITAL TERRITORY ) No. SCA 46 of 2001

ON APPEAL FROM THE MASTER OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN: NICOLE MAREE MENSINGA and GAIL MAREE MENSINGA

I have had the advantage of reading the judgment of Higgins CJ and Gray J in draft. I agree that the appeal ought to be dismissed with costs for the reasons given in that judgment and those given by the learned Master in the judgment under appeal.

The point which arises for decision is important, but limited in scope. It concerns an action for damages. It does not involve any administrative law remedies. It relates to a particular office and a particular statute. It does not involve the police. It is not an action by a person who has been prosecuted or who will be prosecuted.

As the proceeding will continue against the other defendant, the Canadian case of Jane Doe v Board of Commissioners of Police for Municipality of Metropolitan Toronto et al (1990) 72 DLR (4th) 580 will no doubt be the subject of further analysis. Suffice to say that, apart from the fact that it relates to the police in a very different factual and statutory setting from the present, Canadian authorities on tort need to be scrutinised carefully as they are based upon some English authorities not accepted by the High Court.

I certify that the preceding three (3) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Gyles.

Appearing for the appellants: Mr D Rowe (appearing in person by leave) and Ms Gail Mensinga (the second appellant in person)

Solicitor for the Respondent: ACT Government Solicitor's Office

Public Prosecutions Act 1990

Children's Services Act 1986

Young People Act 1999

Decisions Judicial Review Act 1989

Victims of Crime Act 1993

Mensinga v DPP [2003] ACTCA 1

At a glance

Court

Decision date

Before

Source

Judgment (106 paragraphs)

Mensinga v DPP [2003] ACTCA 1 (21 February 2003)

Foreshadowed amendments of the statement of claim

The approaches to establishing the duty of care

Whether there is a private law cause of action under the Director of Public Prosecutions Act 1990

Parties

Legislation Cited (7)

Cases Cited (16)