Plaintiff v Defendant

1 On 9 June 2015, the plaintiffs, a mother and her three children, commenced claims of negligence against the defendant, the State of Victoria.[1] Pseudonym orders protect their identities, and I will refer to them as Smith, Jasmine, Tegan and Imogen. The children are, and identify as, aboriginal. From the conduct of certain members of Victoria Police in relation to repeated instances of family violence, the plaintiffs allege three duties of care.[2] The perpetrator of the family violence was the biological father of the children, whom I will refer to as 'the father', with whom Smith had a relationship between 2003 and 2012.

2 The claims alleged are 'police tort claims' within the meaning of s 73 of the Victoria Police Act 2013 (Vic), such that if established, the defendant is liable.[3]

3 The defendant sought summary dismissal of the proceeding pursuant to ss 62 and 63 of the Civil Procedure Act 2010 (Vic). Alternatively, relying on r 23.02 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic), the defendant sought a strike out of the allegations of a common law duty of care pleaded in paragraphs 89, 90, 101, 102 and 103 of the plaintiffs' amended statement of claim,[4] on the basis that they do not disclose a cause of action.

4 For the reasons that follow I have concluded that the defendant's application should be dismissed.

5 Assuming, for the purposes of the application, that the plaintiffs can establish the pleaded facts at trial, the following factual matrix is the basis for the allegations of common law duties of care.

6 Since no later than 1987 in Victoria, legislation has governed the commission of 'family violence'. By that legislation, the Parliament recognised that victims of family violence requires special protection, including by means of intervention orders and the creation of offences for contravention of intervention orders by respondents to them.[5] The legislation provided special protection from family violence for children, including protection from the harm that may be done when children are subjected to, witness, or hear violence perpetrated by family members against other family members.

7 In 2008, the Parliament stated a number of core objectives of the Family Violence Protection Act 2008 that included:

(a) non-violence is a fundamental social value that must be promoted;

(b) family violence is a 'fundamental violation of human rights and is unacceptable in any form';

(c) family violence is not acceptable in any community or culture;

(d) that in responding to family violence and promoting the safety of persons who have experienced family violence, the justice system should treat the views of victims of family violence with respect;

(e) family violence is predominantly committed by men against women, children and other vulnerable persons; and

(f) children who are exposed to the effects of family violence are particularly vulnerable and exposure to family violence may have a serious impact on children's current and future physical, psychological and emotional wellbeing.

8 Since no later than 2004, Victoria Police has operated under Codes of Practice and Policy Rules that are contained in the Victoria Police Manual. Police officers are required to abide by and implement behavioural, operational and administrative standards when reporting, responding to and monitoring family violence. The plaintiffs have particularised three editions of the Family Violence Code of Practice, the Victoria Police Manual (VPM), the Family Violence Procedures and Guidelines and the VPM Family Violence Policy Rules, contending that these codes of operational practice and policy require that police give priority to principles of risk assessment and risk management when responding to family violence. Further, these policies provide that a police function in responding to family violence is to maximise the safety and support to those involved, identify and investigate incidents of family violence, prosecute offenders, and assist in the prevention and deterrence of family violence in the community by responding to family violence appropriately.

9 These policies require police to complete a family violence risk assessment and management report for each family violence incident reported to the police. Further, family violence policies were now based on a principle of being 'pro-arrest' and 'pro-charge', requiring police to investigate and respond appropriately to all family violence incidents reported to them. Since at least 2008, police have been required to send a copy of all intervention orders to Victoria Police Central Data Entry Bureau.

10 Since no later than 2008, these policies have required police to identify recidivist family violence offenders and to adopt 'recidivist strategies', designed to reduce the likelihood of family violence reoccurring, that focus on targeting, monitoring, and case managing recidivist family violence offenders.

11 Finally, these policies have imposed responsibilities on senior police to supervise and monitor adherence to them by operational police under their supervision. Senior police are obliged to monitor the appropriateness of the police response to an investigation of family violence.

12 Between about 2005 and January 2014, the father perpetrated many repeated incidences of family violence against the plaintiffs. The plaintiffs identified nineteen separate incidents of family violence by the father, occurring over nine years at four different premises where the plaintiffs resided in Bairnsdale and Ballarat. Each instance of family violence, and the police response to it is particularised, often identifying the responding or investigating police officer. In summary, the father was invariably intoxicated, at the plaintiffs' home, and the family violence included physical violence, threats including to kill, and property damage[6] directed at Smith in the presence of some or all of her daughters.

13 From 29 March 2006 to 1 February 2013, from time to time the father was respondent to four intervention orders, naming one or more of the plaintiffs as affected family members who were therefore protected by its terms. For present purposes, it is unnecessary to set out the precise terms of the restraint imposed by these intervention orders. Generally the father was prohibited from assaulting, harassing, molesting, threatening or intimidating one or more of the plaintiffs, from approaching, telephoning or contacting them when affected by intoxicating liquor or drugs, from knowingly being at or within 100 metres of their home when affected by intoxicating liquor and drugs, causing damage to property or causing another person to engage in the prohibited conduct. After 2008, the form of the third and fourth intervention orders more closely followed the terms of the legislation.

14 Smith did not seek to restrain contact between the father and his daughters when he was not intoxicated, which caused some conflict with police who appeared to prefer a blanket prohibition on the father attending the plaintiffs' residence.

15 The plaintiffs alleged in detail the conduct of police officers, named and unnamed,[7] when responding to complaints who were based at Bairnsdale Police Station and Ballarat Police Station. Police officers attended, investigated and reported on a family violence incident and recorded those details in the LEAP database. On occasion the same police were involved in subsequent incidents, but police documented nearly all incidents in the LEAP database providing other police with the history. Save for one occasion police did not refer the plaintiffs to family violence services.

16 An early family violence incident (the fourth reported to police) occurred on 24 March 2006 when the father was extremely intoxicated. Police used OC spray on him and he was removed to a 'sobering up centre'. On this occasion police first recommended that Smith obtain an intervention order and on 29 March 2006 Constable Michael successfully applied for the first intervention order.

17 The first intervention order was in force from 29 March 2006 and named Smith and Jasmine as affected family members.

18 The father breached it approximately one month later when he went to the plaintiffs' home. A police officer, who was aware of the intervention order and in particular the limitation on the father coming within 100 metres of the plaintiffs' residence, gave him a lift in a police vehicle dropping him off approximately 140 metres from the plaintiffs' premises in the expectation that he would walk the remaining distance. On a second occasion soon after, police dropped the father while intoxicated at the plaintiffs' residence where he committed family violence against Smith in the presence of Jasmine. Smith complained to a police supervisor at the Bairnsdale Police Station about this conduct in returning the father to the premises.

19 On 14 May 2006, the father verbally threatened Smith over the phone in a raised and intoxicated voice, demanding money and cigarettes and threatening physical violence. Smith immediately reported the incident to police who replied that nothing could be done unless the father attended the property. Around 6.30pm that evening, whilst Smith was still on the phone to police, the father attended Smith's mother's premises in an intoxicated state and committed family violence.

20 Police did attend after Smith called 000, investigated this incident and recorded it in the LEAP database. It had taken police approximately 20-30 minutes to respond to the 000 call. Smith complained to a sergeant at the Bairnsdale Police Station some days later about that delay. The LEAP database recorded, in some detail, Smith's attitudes and what she sought from police and a police officer, Constable Mitchell applied to the Magistrates' Court in Bairnsdale to vary the first intervention order to extend it to exclude the father from Smith's mother's premises where the above incidents had occurred, but the variation was refused.

21 The first intervention order expired on 29 March 2007.

22 The father's next act of family violence was on 2 February 2008 when, intoxicated, he attended at the plaintiffs' home. Smith was able to leave the premises with her daughters and called 000 to report the incident. There was no substantive response. The father ransacked the premises after Smith and her daughters left. A few days later, Smith complained at the Bairnsdale Police Station in relation to this incident. She believed that it was a contravention of the first intervention order, unaware that it had expired. The report was taken and recorded in the LEAP database although Smith subsequently withdrew the complaint, fearful of reprisals and inadequate protection of her safety by the police.

23 Following a similar family violence incident on 17 November 2008, a second intervention order was made on 26 November 2008, naming Smith as the affected family member.

24 This order was breached on 11 December 2008 when the father attended Smith's home while intoxicated. Uniformed police officers attended the incident and duly recorded it in the LEAP database.

25 The second intervention order expired on 25 November 2009.

26 In October 2010, Smith applied for interim intervention order pursuant to the Family Violence Protection Act 2008 (Vic). When the father was served with a copy of the application he committed family violence against Smith by attending her Bairnsdale home late at night while intoxicated. Although the incident was immediately reported to police, who attended at the residence, the police did not take action believing no offence had been committed because the application for an intervention order appeared not to have been served.

27 The third intervention order was made on 7 October 2010. It named Smith, Jasmine and Tegan as affected family members.

28 On 7 May 2011, the father committed family violence against Smith at her premises in contravention of the third order. There was a dispute and Smith was assaulted in the presence of her three daughters. She contacted Bairnsdale Police. The incident was recorded in the LEAP database. Police referred her to Gippsland Lakes Community Health who reported to the police that she had declined family violence outreach support. Smith withdrew her complaint, signing a written statement prepared for her by police. She did not want to pursue charges against the father because she and her daughters were not receiving effective protection from his violence. Further, his family were providing culturally appropriate support and they did not support the involvement of the Police.

29 Soon after, police informed Smith they intended to apply to the Magistrates' Court to vary the terms of the third intervention order so that it would exclude the father from her home at all times. Smith did not want this change and wished to keep the intervention order in its original terms to permit the father's access to his daughters when he was sober. However, on 11 May 2011 without Smith's knowledge, the third intervention order was revoked by a Magistrate, although Smith did not become aware of the revocation until around mid-2012. She erroneously believes that on 11 May 2011 another 12-month intervention order had been made for the protection of her and her daughters.

30 On 10 June 2012 the father committed two family violence incidents against Smith. She reported the first of them to the Police who erroneously informed her that there was in fact an active intervention order in place. No LEAP report about this incident was entered.

31 Shortly after Smith left the Bairnsdale Police Station having made that report, the father located her and committed further family violence that included choking and kicking her. Because of the lack of response from police to her earlier complaint and being fearful of the father, Smith made no complaint notwithstanding the seriousness of the family violence on this occasion.

32 On 23 June 2012, the father again committed acts of family violence against Smith in the presence of their daughters involving damage to property and verbal threats. This incident was reported to police and recorded in the LEAP database. As there was in fact no intervention order in place at the time, charges against the father were not pressed.

33 On 2 August 2012, the fourth intervention order was made and it continued in force until 1 February 2013 naming Smith, Jasmine, Tegan and Imogen as affected family members. This intervention order was soon breached. In September 2012, the father contacted Smith announcing his intention to come around to her house. She left. When she returned, the premises had been extensively damaged. Her belongings, and garbage, were strewn over the bedroom. The house phone had been ripped off the wall and holes had been punched in walls.

34 Smith reported the incident to police who attended, investigated, and recorded it in the LEAP database. Smith alleged that she was embarrassed, humiliated and demeaned by the conduct of the investigating detective. Police doubted that the father had committed the crime or could be prosecuted because he had willingly been invited onto the premises from time to time. She was informed that the incident would not be further investigated.

35 In January 2013, Smith investigated housing properties in Ballarat intending to relocate there to live. When she returned to Bairnsdale the father threatened if she took the children away, he would burn down her mother's house and he threatened her person. The father did not actually attend her property when making these threats. The incident was reported to police, who said there was nothing they could do unless the father did attend the property.

36 Between January 2013 and December 2013 the plaintiffs resided in Ballarat. Over this period on approximately 4 or 5 occasions, the father attended her residence uninvited, stayed a number of days and committed family violence by being verbally and physically abusive. He coerced Smith into sexual relations with him which she complied with to avoid him committing further family violence. She did not report these incidents to the police because she was fearful if she involved the police she would be in greater danger while the police involvement would be both ineffective and would threaten her continuing support from the father's family.

37 In January 2014, the plaintiffs moved to Melbourne. On 31 January 2014, Smith returned to Ballarat to complete packing up and moving the plaintiffs' possessions to Melbourne. At the Ballarat premises there were empty beer cans, the house smelled of tobacco and marijuana, and the back door was open. Smith believed that the father had attended the Ballarat premises in her absence and was responsible for its state. While she was there the father arrived in an intoxicated state. He verbally abused her and he damaged the premises. He then drove off her car. Smith contacted the police on 000, then the father returned with the car. She was out in the street. Smith believed, from the way he drove the car, that he intended to run her over. When he abandoned the car she reclaimed it and drove away in a fearful and panicked state, she rang 000 again.

38 This incident was reported to police when they arrived at the premises and was the subject of a family violence safety notice, recorded in the LEAP database. The police who attended the incident negotiated for the father to take a train back to the Latrobe Valley but Smith was required to provide him the money for the train fare. The police took the father to the station.

39 The family violence safety notice, which came into immediate force, served as an application for an intervention order that was listed for hearing in Ballarat Magistrates Court on 4 February 2014, but no intervention order was ultimately sought or obtained. Smith had commenced a new job in Melbourne and was unable to attend court in Ballarat. The police told Smith it was not possible to transfer the application to Melbourne or to proceed with it in her absence, advising her to apply herself for an intervention order in Melbourne. When Smith contacted the Melbourne Magistrates' Court, she was advised that this information was incorrect and that she should follow it up with the Ballarat police, but she decided not to proceed any further given the conflicting information that was being provided.

40 The plaintiffs allege police officers and senior officers owed duties of care to them as victims of family violence. They claim that as a result of breaches of those duties, they have suffered psychological harm. Additionally, the plaintiffs assert that the police officers, officers in charge and senior officers acted in breach of the plaintiffs' human rights and obligations as public authorities under the Charter of Human Rights and Responsibilities Act 2006 (Vic) ('the Charter').[8]

41 The defendant disputed the existence of the alleged duties of care, submitting that the alleged duties cannot arise at law and the proceeding should be summarily dismissed. The plaintiffs contended the current state of the law did not go that far and they were entitled to a trial as it would be open to a court to find the duties as alleged. In any event, disposing of the proceeding summarily would not be in the interests of justice.

42 The plaintiffs intend to adduce evidence at trial in a number of categories that will be relevant to the pleaded allegations, including: the legislative and policy context in Victoria in which police respond to family violence events; the circumstances in which the relevant intervention orders were made; the role played by particular police officers in applying for the intervention orders and the process adopted in relation to service; the recording of incidents and orders in the LEAP database; and, responses by police officers to Smith's complaints of breach and threatened breach of those orders.

43 Additionally, on the issues of conflicting duties and standard of care, the plaintiffs intend to adduce evidence of the applicable police policies and practice, as informed by the Victoria Police Manual. Consideration at trial of the evidence outlined will provide a more detailed analysis of both the existence and scope of the duty of care than emerges from a bare consideration of the pleadings. In light of the full body of evidence, it is the plaintiffs' intention to urge the court to accept the dissenting lines of authority from the United Kingdom.

44 The parties agreed on the applicable principles and they may be briefly stated. The power to summarily dismiss a civil proceeding is found in s 63 of the Civil Procedure Act 2010 if the court is satisfied that a claim in the proceeding 'has no real prospect of success'.

45 In Lysaght Building Solutions Pty Ltd v Blanalko Pty Ltd, Warren CJ and Nettle JA determined as follows:

(a) the test for summary judgment under s. 63 of the Civil Procedure Act 2010 is whether the respondent to the application for summary judgment has a "real" as opposed to "fanciful" chance of success;

(b) the test is to be applied by reference to its own language and without paraphrase or comparison with the "hopeless" or "bound to fail test" essayed in General Steel;

(c) it should be understood, however, that the test is to some degree a more liberal test than the "hopeless" or "bound to fail" test essayed in General Steel and, therefore, permits of the possibility that there might be cases, yet to be identified, in which it appears that, although the respondent's case is not hopeless or bound to fail, it does not have a real prospect of success;

(d) at the same time, it must be borne in mind that the power to terminate proceedings summarily should be exercised with caution and thus should not be exercised unless it is clear that there is no real question to be tried; and that is so regardless of whether the application for summary judgment is made on the basis that the pleadings fail to disclose a reasonable cause of action (and the defect cannot be cured by amendment) or on the basis that the action is frivolous or vexatious or an abuse of process or where the application is supported by evidence.[9]

46 In the event that a claim has no real prospects of success, a court may nevertheless order that the matter proceed to trial if it is satisfied that it is not in the interests of justice to dispose of the matter summarily, or the dispute is of such a nature that only a full hearing on the merits is appropriate. [10]

47 In Trkulja v Google LLC, the High Court observed, in a proceeding concerned with the test for determination of an application to set aside service of a proceeding out of Australia:

In Victoria, the test for summary judgment is prescribed by s 62 of the Civil Procedure Act: whether the plaintiff's claim has "no real prospect of success". Consistently with Spencer, the view taken in Victoria is that the power to dismiss an action summarily is not lightly to be exercised but that, like the test applicable to s 31A of the Federal Court of Australia Act, the "no real prospect of success" test is to some degree more liberal than Dey and General Steel. It permits of the possibility of cases in which, although the plaintiff's case is not "hopeless" or "bound to fail", it does not have a real prospect of succeeding.[11]

48 The plaintiffs pleaded three duties of care being:

(a) a duty of care to affected family members named in extant intervention orders to prevent breach of intervention orders;

(b) a duty of care to women and children to prevent family violence by repeat offenders;

(c) a duty of care owed by identified senior officers at particular police stations to the plaintiffs, as affected family members named in extant intervention orders, to ensure compliance by police within their line of command with Victorian family violence policies.

49 As set out in the amended statement of claim (ASOC), the duties are (excluding particulars):

89. At all relevant times, the police officers owed a duty to take reasonable care to prevent breach of the terms of those extant Intervention Orders by the named respondents thereto (duty of care to prevent breach of intervention orders).

90. At all relevant times, the police officers owed to the plaintiffs a duty of care to prevent a breach of the First, Second, Third and Fourth Intervention Orders by the father, by reason of the fact that there was a relationship of proximity between the plaintiffs and the police officers, which arose because of the following salient features:

(a) the class of persons constituted by all affected family members named in extant Intervention Orders constitute an ascertainable class of persons in the Victorian community.

(b) [the first plaintiff] and her children were named as affected family members in the First, Second, Third and Fourth Intervention Orders in force on dates between 29 March 2006 and 1 February 2013.

(c) it was reasonably foreseeable generally, and in particular to the police officers, that the plaintiffs required protection from breaches of the extant Intervention Orders by the father, and that any failure to so protect the plaintiffs may result in injury to them.

(d) the police officers knew or ought to have known the terms of the extant Intervention Orders.

(e) the police officers exercised control and/or had the capacity to exercise control with respect to the compliance by the father with the terms of the extant Intervention Orders.

(f) the plaintiffs were vulnerable to the consequences of any failure by the police to enforce the extant Intervention Orders and to any breach of the extant Intervention Orders by the father.

(g) Victoria Police represented, by reason of the terms of their Victorian family violence policies, that police officers would protect women and children from the commission of family violence;

(h) as a result of those representations, the plaintiffs relied on the police officers to enforce compliance by the father with the extant Intervention Orders and to prevent any breach of the extant Intervention Orders by the father.

(i) the police officers were responsible for enforcing compliance with the extant Intervention Orders by the father.

1. There exist no countervailing policy reasons which militate against the imposition of a duty of care on the police officers to prevent breach of intervention orders:

(a) Imposition of a duty of care to prevent breach of intervention orders does not give rise to inconsistent or conflicting duties for police officers; and

(b) No incoherence in the law is created by the imposition of a duty of care on police officers to prevent breach of intervention orders.

...

1. At all relevant times, the police officers owed a duty to women and children to take reasonable care to prevent the commission of family violence by repeat family violence offenders (duty of care to prevent family violence by repeat offenders).

102. At all relevant times, the police officers owed a duty to the plaintiffs to take reasonable care to prevent family violence by the father, who was (by no later than 29 March 2006) a repeat family violence offender.

1. The duty of care to prevent family violence by the father (a repeat offender) was owed by the police officers to the plaintiffs by reason of the facts that:

(a) the police officers knew or ought to have known that the father was a repeat family violence offender because the police officers had responded to the family violence incidents committed by the father on each of 16 March 2005, 28 August 2005, 13 November 2005 and 24 March 2006;

(b) Smith and her children were named as affected family members in the First, Second, Third and Fourth Intervention Orders in force on dates between 29 March 2006 and 1 February 2013;

(c) on 29 March 2006, Constable Michael made application for the First Intervention Order by reason of the previous family violence incidents;

(d) it was reasonably foreseeable generally, and in particular to the police officers from no later than 24 March 2006, that the plaintiffs required protection from breaches of the extant Intervention Orders by the father and that any failure to so protect the plaintiffs may result in injury to them;

(e) the police officers knew or ought to have known the terms of the extant Intervention Orders;

(f) the plaintiffs were vulnerable to the consequences of any failure by the police to protect them from the commission of family violence by the father;

(g) the police officers assumed the responsibility of preventing the commission of family violence by the father;

(h) the police officers exercised control and/ or had the capacity to exercise control with respect to the commission of family violence by the father;

(i) Victoria Police represented, by reason of the terms of their Victorian family violence policies, that police officers would protect women and children from the commission of family violence by repeat offenders;

(j) as a result of those representations, the plaintiffs relied on the police officers to prevent commission of family violence by the father.

1. There exists no countervailing policy reasons which militate against the imposition of a duty of care to prevent family violence by repeat offenders, by reason of the facts that:

(a) Imposition of such a duty of care does not give rise to inconsistent or conflicting duties; and

(b) No incoherence in the law is created by the imposition of a duty of care on police officers to prevent family violence by repeat offenders.

...

121. At all relevant times, the officers in charge from time to time at the Ballarat Police Station and the Bairnsdale Police Station, and the Assistant Regional Commissioners for the Western Region and the Eastern Region (the senior officers) owed a duty to the plaintiffs, as affected family members named in extant Intervention Orders, to exercise reasonable care to ensure that all police officers under their line of command and /or in their police service area were complying with the Victorian family violence policies, in particular by:

(a) adopting a pro arrest and pro charge approach to responses to family violence;

(b) completing a VP L17 Form with respect to every incident of family violence reported to police;

(c) conducting risk assessments for affected family members;

(d) devising risk management strategies for the protection of the safety and welfare of affected family members.

(duty of care to ensure compliance with Victorian family violence policies).

50 With respect to each duty, the pleading alleged the standard of care applicable to the duty and the breach of that duty, but those matters are not pertinent to this application and need not be presently set out or analysed.

51 The plaintiffs submitted that, given the nature of the topics of evidence, the proceeding ought not be dismissed, emphasising the caution required in determining summary dismissal applications,[12] and the risk of stifling development of the law.[13]

52 Ultimately, in the event that the test for summary dismissal was met, the plaintiff submitted that the proceeding is one in which the residual discretion in s 64(b) of the CPA would apply,[14] given the nature, quality and importance of the evidence to be adduced.

53 The defendant first took issue with the form of the pleading of the duties in paragraphs [89] and [90] of the ASOC, submitting that the duties pleaded were too broad. The submission was that these duties were that, 'every police officer owes such a duty to every affected family member named in any and every extant intervention order in the State of Victoria'. Further, the duty would arise when the intervention order was made, and was framed around prevention of domestic violence rather than steps taken in response to a breach of an intervention order.

54 Citing Hayne J in Modbury Triangle Shopping Centre Pty Ltd v Anzil,[15] the defendant submitted said that the 'content of the duty must consist of steps that are capable of directly achieving satisfaction of the duty'. What the plaintiffs pleaded as the standard of care were procedural steps that can 'hardly be sufficient or apt to prevent breach'.

55 Moreover, achieving satisfaction of the duty in the terms suggested by Hayne J, would involve steps including detention and arrest, permanent monitoring or perhaps protective presence. Anything short of steps capable of prevention really amounts to an alleged duty to follow procedures, and the Victoria Police manual 'does not give rise to a duty owed to any particular plaintiff to follow the manual'.[16]

56 The duty pleaded in paragraph [102] was an application to the plaintiffs of the broad duty alleged in paragraph [101], and was exposed to the same objection. In accordance with the relevant legislation, family violence could extend, for example, to economic abuse,[17] which would then be encompassed within the duty alleged in paragraph [101].

57 The defendant claimed that the plaintiffs retrospectively formulated the duty in paragraph [121] to avoid the particular omission of inadequate supervision, and wrongly conflated duty with breach.[18]

58 The plaintiffs replied that the defendant mischaracterised the nature of the alleged duties in suggesting that they were owed to the world at large. Rather, the duties were framed as 'owed by police officers based at stations local to the plaintiffs' homes, by reason of their status as family violence victims named in extant intervention orders which applied to the father'.[19] Alternatively, the duties were 'owed to the plaintiffs as victims of a recidivist family violence offender known to police'.[20] The ASOC alleged the plaintiffs and the father were in contact with named or described police officers, or directed the allegations to senior officers with responsibility for supervising those officers. Accordingly there was a special relationship between the plaintiffs and police in which the duties alleged arose.

59 I accept the plaintiffs' submission that the duty has not been pleaded in unnecessarily broad terms. The applicable standard of care is stated with some precision, ascertained by reference to the requirements imposed by the Victorian family violence policies in force from time to time.

60 In contending that the alleged duties of care cannot arise, the defendant framed its submissions around four issues:

(a) there is no common law duty to act where no positive conduct of the defendant has created the risk of injury, save for exceptional relationships;

(b) in the absence of exceptional circumstances, police officers do not owe a duty of care to individuals to investigate a complaint of actual or threatened conduct;

(c) principles of 'conflicting duties' and policy considerations weigh against imposing a duty on police officers; and

(d) two exceptions exist, control and 'assumption of responsibility', neither of which apply in the circumstances.

61 The arguments advanced applied to the duties alleged on the basis of the conduct of responding police officers and on the basis of the conduct of senior officers. The defendant submitted that if the negligence claims are dismissed or struck out, the Charter claims would also fail.

62 In overview, the plaintiffs traversed the following arguments in their response:

(a) the law as to the duty of care owed by police is in a state of development. It is an open question whether the approach of Lord Bingham in Smith v Chief Constable of Sussex Police would be adopted in Australia;[21]

(b) this is not a case like Hill v Chief Constable of West Yorkshire,[22] but even if the principle from Hill's Case is applicable, the current circumstances fall within the identified exceptions;

(c) the basis of the policy rationale is questionable, and it is for the defendant to delineate its substance;

(d) there are not irreconcilable duties;

(e) certain salient features from Crimmins v Stevedoring Industry Financing Committee are present;[23] and,

(f) in light of the bodies of evidence to be adduced at trial, the proceeding should not be dismissed summarily.

63 The defendant emphasised that the High Court has consistently drawn a distinction between a positive act causing damage and a failure to act.[24] Save for certain exceptional relationships,[25] the common law does not impose a duty on a person to act where no positive conduct of that person created the risk of injury.[26] As McHugh J observed in Pyrenees Shire Council v Day,[27] the common law does not 'generally impose any duty on a person to take steps to prevent harm, even very serious harm, befalling another',[28] recognising an exception only 'when some special relationship exists between the person harmed and the person who fails to act'.[29]

64 The defendant contended that even where a particular person or authority has a power that might be seen as being available, if exercised, to prevent harm, no duty arises if the power is simply not exercised. Cases where the 'repository of statutory power does something which creates or increases the risk of foreseeable damage', are distinguished from cases where although a 'person is able to foresee that damage might occur', they have done nothing to cause it, as, for example, in Stuart v Kirkland-Veenstra.[30]

65 The defendant accepted that certain relationships constitute exceptions to the general principle, but submitted that the relationship between members of the police force and members of the community is not one of them.

66 The defendant submitted that Australian courts have repeatedly acknowledged that, absent exceptional circumstances, 'police officers do not owe a duty to an individual to investigate a complaint of actual or threatened conduct'.[31] The defendant submitted that three decisions of this court, Slaveski,[32] Gesah,[33] and Gandy v Victoria,[34] drawing on United Kingdom, High Court and interstate authorities make out this contention.

67 Slaveski claimed damages for the negligence of a senior police officer in failing to prevent other officers from committing wrongful acts against him, and for failing to investigate complaints regarding threatening telephone calls. Kyrou J (as his Honour was then) identified and applied the 'core principle' from the seminal decision Hill's Case.[35] His Honour explored whether a duty is owed by police in the context of the principles of 'conflicting duties' and 'principles based on public policy'.[36] This approach although significantly referred to High Court authority, draws on the UK cases that I will presently refer to.

68 In Hill's Case, the mother of the final victim of the 'Yorkshire Ripper', a serial killer, claimed damages in negligence against police. The alleged duty was to take reasonable care to apprehend the killer responsible for prior killings. A majority of the House of Lords (Lord Keith, with whom Lord Brandon, Lord Goff and Lord Oliver agreed) held that police officers did not owe a duty to identify and apprehend an unknown offender.

69 Kyrou J identified the core principle of Hill's Case to be:

in all but 'exceptional cases', police officers engaged in combating and investigating crime do not owe a duty of care to individual members of the public to protect them against harm caused by criminal conduct. Although the House of Lords has allowed for the possibility that 'there might be exceptional cases where liability must be imposed', little guidance has been provided as to when such a case may arise.[37]

70 Kyrou J noted the reformulation by Lord Steyn in Brooks[38] of the conceptual basis for this principle. Brooks had witnessed the murder of his friend, and the police badly managed the investigation of that murder. Brooks claimed that police failed in their duties to accord him reasonably appropriate protection, support, and assistance. The House of Lords upheld the trial judge's summary dismissal of the claim. Lord Steyn advocated a reformulation of the principle of Hill's Case, 'in terms of an absence of duty of care rather than a blanket immunity'.[39]

71 Kyrou J observed that Australian courts have referred to Hill's Case with approval,[40] and that the House of Lords applied its core principle in Van Colle v Chief Constable of Hertfordshire Police.[41] Two appeals were heard together. Van Colle was a claim by the relatives of a murdered witness and the other, Smith was a claim in which a seriously injured victim had reported threats of violence from an identified attacker to police. Van Colle was a case under the European Convention, the ECPHR and provides no assistance in identifying principle in the present circumstances. Although the parties referred to Van Colle in argument, and some of the cases discuss the principle in Smith by reference to Van Colle, I will refer to Smith. Smith alleged that police owed him a common law duty of care to protect individuals from harm caused by criminals and to take reasonable steps to prevent his injury that followed on the conduct of police. Smith's claim was summarily dismissed.

72 The House of Lords applied the core principle from Hill's Case as explained in Brooks when concluding that the alleged duty did not arise at law. Lord Hope of Craighead explained that it must be for the police to decide how available resources should be deployed, what lines of inquiry should be pursued and whether certain crimes should be prosecuted. No different public policy exists in cases of family violence. Lord Hope observed:

It is an unfortunate feature of the human experience that the breakdown of a close relationship leads to bitterness, and that this in turn may lead to threats and acts of violence. So-called domestic cases that are brought to the attention of the police all too frequently are a product of that phenomenon. One party tells the police that he or she is being threatened. The other party may say, when challenged, that his or her actions have been wrongly reported or misinterpreted. The police have a public function to perform on receiving such information. A robust approach is needed, bearing in mind the interests of both parties and the whole community. Not every complaint of this kind is genuine, and those that are genuine must be sorted out from those that are not. Police work elsewhere may be impeded if the police were required to treat every report from a member of the public that he or she is being threatened with violence as giving rise to a duty of care to take reasonable steps to prevent the alleged threat from being executed. Some cases will require more immediate action than others. The judgment as to whether any given case is of that character must be left to the police.

...

Who is to judge whether the evidence is apparently credible? Who is to judge whether the threat is imminent? These are questions that the police must deal with on the spot. A robust approach would leave the matter to the judgment of the police officer. The decision in Brooks adopts this approach, leaving the police free to make their own judgment.[42]

73 An alternative 'liability principle',[43] advocated by Lord Bingham in dissent, was rejected. The House considered that the public interest was best served by maintaining the full width of the core principle since such a duty would encourage defensive policing and divert manpower and resources from their primary function.

74 On his review of the authorities, Kyrou J ultimately concluded that:

While police officers do not enjoy blanket immunity from liability for harm caused by their failure to investigate complaints, the authorities indicate that a duty of care will not be recognised unless there is something exceptional in the circumstances of a particular case that warrants such recognition. In the absence of exceptional circumstances, the mere failure by police to investigate a complaint of actual or threatened criminal conduct is not sufficient.[44]

In Slaveski, Kyrou J found it unnecessary to resolve whether the senior officer was negligent. The defendant submitted that the Hill's Case core principle, as applied in Slaveski, remained good law.

75 In Gesah,[45] a prisoner was transferred to a maximum-security prison following murder charges laid on the basis of DNA evidence only. The charges were later withdrawn amidst allegations that the DNA evidence was contaminated. The plaintiff sought damages for psychiatric injuries alleging breaches of duties of care owed by, inter alia, the Victoria Police Forensic Science Centre and homicide squad detectives.

76 Beach J (as his Honour was then) granted summary judgment to the defendant. His Honour traced the applicable principle through Sullivan v Moody,[46] which drew on Hill's Case, and Tame,[47] and noted the plaintiff's reliance on Zalewski v Turcarolo,[48] in which police officers who fired at a psychiatrically unwell plaintiff were found to be negligent, and Victoria v Richards,[49] in which a bystander sued for damages in circumstances where police had used capsicum spray in a small shop and summary judgment was refused, a decision that was upheld on appeal.

77 Distinguishing Zalewski and Richards from the claim in Gesah, Beach J observed:

Neither of those cases were about a duty of care said to exist in relation to the investigation of criminal activity. Those cases both involved the infliction of physical injury in one-on-one situations.

In the absence of exceptional circumstances, police officers do not owe a duty of care to an individual to investigate a complaint of actual or threatened criminal conduct.[50]

78 In Gandy,[51] a claim for business losses by plaintiffs who were evicted from their property by police officers was summarily dismissed. Referring to Hill's Case and Sullivan v Moody, Bongiorno J (as his Honour then was) acknowledged that while sometimes police may owe a duty of care to a citizen, such as the circumstances in Zalewski, a duty will not be imposed when inconsistent with co-existing duties owed to the citizenry as a whole.[52]

79 Beyond the Victorian cases, the defendant also referred to Michael v Chief Constable of South Wales Police,[53] D v Commissioner of Police,[54] and DC v New South Wales.[55]

80 Michael involved a woman murdered by her ex-partner, after twice phoning emergency services. The first phone-call was erroneously prioritised, to require a response within 60 minutes rather than 5 minutes. In that interval, the woman was murdered. An application to strike out a subsequent negligence claim brought by her estate was dismissed at first instance but allowed on appeal. In the leading judgment, Lord Toulson JSC identified the 'long established' duty owed by the police to preserve the Queen's peace,[56] a duty owed to any affected member of the public. The common law duty of the police is reflected in their oath or attestation and any private law duty owed to a member of the public at risk of violent crime must be in addition to that public law duty. His Lordship's analysis of numerous authorities, including Hill's Case, Smith, Brooks, Sullivan v Moody and Modbury Triangle, led to the following conclusion:

English law does not as a general rule impose liability on a defendant (D) for injury or damage to the person or property of a claimant (C) caused by the conduct of a third party (T) ... The fundamental reason ... is that the common law does not generally impose liability for pure omissions. It is one thing to require a person who embarks on action which may harm others to exercise care. It is another matter to hold a person liable in damages for failing to prevent harm caused by someone else.[57]

81 Lord Toulson JSC rejected the language of immunity used by Lord Keith in Hill's Case, identifying the question to be whether an exception should be made to the ordinary application of common law principles in that case. His Lordship identified two exceptions: where 'D was in a position of control over T and should have foreseen the likelihood of T causing damage to somebody in close proximity'; and where 'D assumes a positive responsibility to safeguard C'.[58] Neither exception was found applicable.

82 The defendant submitted that Lord Toulson's approach is whether an exception should be made to the ordinary application of common law principles that preclude existence of a duty. As in that case, here neither exception could be applicable on the assumed facts. The exceptions are discussed later in these reasons.

83 In D's Case, two victims of a serial rapist brought claims in negligence against police. The claims were brought under the Human Rights Act 1998 and the defendant submitted that the decision was of no assistance and did not interfere with the English common law position stated in Michael.

84 Finally, the case of DC v New South Wales,[59] the New South Wales Court of Appeal considered the duty of the Department of Youth and Community Services to report child abuse to police. While the State accepted that the Department had a duty to exercise its statutory powers with reasonable care, it disputed that the duty extended to reporting the abuse to police. The Court of Appeal upheld the trial judge's finding of that extended duty. Basten JA (who was in dissent, but agreed as to the scope of the duty) stated: '[w]hether the approach favoured by Lord Bingham and the minority in Michael would be adopted in Australia, having regard to particular statutory schemes, is an open question: it has not yet been adopted'.[60] The defendant invited me to regard those comments simply as recognition that the prospect exists that appellate courts may change the law in Australia, but at present the minority view is not what prevails in this country.

85 Based on this analysis, the defendant submitted that Australian courts have repeatedly acknowledged that in the absence of exceptional circumstances, police do not owe a duty of care when investigating a complaint of actual or threatened conduct. It must follow that a broader and more onerous duty 'to prevent' specified conduct, as alleged by the plaintiffs, is inconsistent with such cases. Moreover, the authorities demonstrate that the relationship between members of the police force and the public, or an ascertainable class of the public, is not an 'exceptional relationship'.

86 The defendant contended that Australian courts generally have limited the imposition of a duty of care on police to circumstances where the police conduct has directly caused harm to a third person,[61] or has been conduct toward a person in police custody.[62] Zalewski and Richards were cases in which the officer created the danger. Moreover, insofar as the plaintiffs rely on Zalewski, what was advanced there was an immunity in a case where the injury was inflicted directly by police officers, an approach that forms no part of the plaintiffs' case.[63] While Australian courts have not embraced the notion of 'immunity',[64] emphasis has been placed on the conflicting duties principle and policy considerations.[65] The focus is on duties owed to the general community, not private common law duties.[66] These require enforcement of the criminal law through detection and prevention of crime, and as stated in Crowley, the community requires a 'strong and energetic police force to enforce the criminal law'.[67] I address these considerations later in these reasons.

87 The plaintiffs invited me to reject the defendant's contention that the law is settled and to conclude that the law regarding the application of duties of care to police officers remains in a state of development. Each of the cases must be understood in terms of the duty alleged and the factual matrix, found or assumed. As there is no authoritative decision of any Australian court that denies the existence of a duty of care of the sort alleged in the assumed factual matrix, the court ought not summarily dismiss the proceeding.

88 The plaintiffs submitted that an analysis of salient features permitted a conclusion that the duties alleged are recognised by and consistent with Australian law. As Ipp JA observed in Spearpoint there is a 'cogent argument' in support of 'the proposition that police could owe a duty of care to a private individual arising out of a failure to arrest or otherwise protect that person from harm'.[68] Before explaining how the plaintiffs developed that cogent argument it is desirable to be clear about the fundamental approach of Australian law to the recognition of a novel duty of care. The probity of arguments derived from cases from other jurisdictions must be understood in this context.

89 The approach of the common law of Australia to proceedings that postulated a novel duty of care was unsettled over decades by the search for unifying principle or a general test. In Brookfield Multiplex Ltd v Owners - Strata Plan No 61288, French CJ stated:

This Court in Sullivan v Moody eschewed any attempt at formulating a general test for determining the existence or non-existence of a duty of care for the purposes of the law of negligence. As the Court said, different classes of case raise different problems, requiring "a judicial evaluation of the factors which tend for or against a conclusion, to be arrived at as a matter of principle". The development of the law of negligence had revealed "the difficulty of identifying unifying principles that would allow ready solution of novel problems".[69]

90 As the existence of a novel duty of care is here alleged, the court must apply the salient features approach articulated in Crimmins, and applied and explained in cases such as Sullivan v Moody, Graham Barclay Oysters, and Tame. In both Gesah[70] and Richards[71] the courts adopted this approach to the issue of police liability in negligence.

91 It is now established that to test whether a duty of care exists the proper approach is to undertake a close analysis of the facts bearing on the relationship between the plaintiff and the putative tortfeasor by reference to the salient features or facts affecting the appropriateness of imputing a legal duty to take reasonable care to avoid harm or injury.[72]

92 In Stavar, Allsop P extracted from the authorities a non-exhaustive list of considerations of the kind relevant to the evaluative task of imputation of the duty and the identification of its scope and content,[73] an analysis that has been approved and adopted in subsequent decisions.

93 The discussion of whether police owe a duty of care in novel circumstances that is found in cases from other jurisdictions does not undertake this analysis although there is conceptual overlap. In particular, what the UK cases discuss as the two exceptions to the ordinary application of common law principles that results in the general rule that police do not owe a duty of care to individual members of the public to protect them against harm caused by criminal conduct are included as salient features in Australia jurisprudence. I refer in particular to the notion of control of the risk and the notion of assumption of responsibility.

94 The plaintiffs emphasised that it was critical to note that salient features were absent in Hill's Case. There was not sufficient proximity of relationship to give rise to a liability to prevent the perpetrator from harming others. The perpetrator was never in the custody of police and the victim was one of a vast female public.[74] Distinguishing the current circumstances, each of the salient features of proximity, knowledge and control was absent. Here, the proximity of relationship is quite different. The perpetrator is known, and the plaintiffs are the persons for whose benefit the intervention orders were made. As the result is consistent with a salient features analysis, the appeal of Hill's Case to Australian judges is unsurprising.

95 In Hill's Case, Lord Keith relied on public policy considerations such as the undesirability of policing with a 'defensive state of mind' that imposition of a duty might engender, the diversion of police resources from the suppression of crime, and the concept of police immunity.[75] The latter concept has been rejected in Victoria. As to the former, the context in which the Court expressed such policy concerns was a large and high-profile investigation into serial killing. The plaintiffs submitted with some force that such policy concerns are not apt in the current context, where police know both the perpetrator and victim who, in particular, are named in successive intervention orders recorded in police databases. If Hill's Case is good law in Australia, it is distinguishable.

96 Moving beyond Hill's Case, the plaintiffs next referred to the speech of Lord Steyn in Brooks. The proceeding concerned an alleged duty to give appropriate protection and support to witnesses of crime. To that extent, it stands apart from other decisions that have been concerned with suspects and direct victims of crime. Lord Steyn identified the 'core principle' from Hill's Case, and again emphasised policy concerns about imposition of a duty leading to a 'defensive approach'.[76] The plaintiffs argued that the assumptions inherent in Lord Steyn's policy analysis cannot be assumed to be correct in Victoria in 2018. Particularly in the context of summary dismissal, this is an attractive submission. The maturing policy focus on the scourge of domestic violence since 2005 will likely be evident from the evidence at trial. Moreover, Lord Steyn's assumptions have been the subject of critical analysis in the UK in dissenting judgments in Smith, Michael, and of discussion in D's Case.

97 In Smith, the 'core principle' was again upheld. The plaintiffs emphasised that in the leading speech Lord Hope recognised weaknesses in the policy considerations relied on in Hill's Case, albeit while still relying on the policy imperative of avoiding 'defensive policing'.[77]

98 Lord Bingham dissented, accepting the existence of the asserted duty of care on the basis of what he termed the 'liability principle.' His Lordship explained:

if a member of the public (A) furnishes a police officer (B) with apparently credible evidence that a third party whose identity and whereabouts are known presents a specific and imminent threat to his life or physical safety, B owes A a duty to take reasonable steps to assess such a threat and, if appropriate, take reasonable steps to prevent it being executed.[78]

99 His Lordship did not consider his liability approach to be inconsistent with Hill's Case, as the proceeding was not one involving an unidentified suspect in the absence of a specific threat. His Lordship was satisfied that the relationship between the plaintiff and the police was one of close proximity, based on 'direct, face-to-face meetings'.[79] Further:

If, as some of the cases suggest, it is necessary to find a special relationship for a duty of care to arise, this relationship was in my view special as a result of Mr Smith's approach to the police and their response to it. If, as other cases suggest, it is necessary for responsibility to be assumed for a duty of care to arise, then in my opinion the police assumed responsibility by visiting Mr Smith, initiating what was regarded by them as an investigation, assuring him that the investigation was progressing well and inviting him to call 999 if he was concerned for his safety. [80]

100 Lord Bingham did not accept the concerns expressed by other members of the court related to defensive policing, saying:

It is not, however, easy to see how acceptance of the liability principle could induce a detrimentally defensive frame of mind. All that would be called for in the first instance would be a reasonable assessment of the threat posed to an identified potential victim by an identified person.[81]

101 Lord Bingham concluded that the 'liability principle' would not 'distract the police from their primary function of suppressing crime and apprehending criminals but calls for reasonable performance of that function'.[82]

102 Next, the plaintiffs emphasised the dissenting speeches of Lord Kerr and Lady Hale JJSC in Michael, both of whom viewed proximity as the determinative factor.[83]

103 Lord Kerr noted that cases in which liability to individual members of the public has been imposed on police officers have depended 'very much on their own facts'.[84] On the issue of proximity of relationship, his Lordship reasoned that it was incontestable that proximity could arise from interaction between the 'parties such as potential victim and police',[85] one that transcends the ordinary contact between members of the public and the police force.[86] His Lordship went on to state:

In my view, the time has come to recognise the legal duty of the police force to take action to protect a particular individual whose life or safety is, to the knowledge of the police, threatened by someone whose actions the police are able to restrain. I am not convinced that this requires a development of the common law but, if it does, I am sanguine about that prospect.

...

The police have been empowered to protect the public from harm. They should not be exempted from liability on the general common law ground that members of the public are not required to protect others from third party harm; such protection of autonomy for individuals is not appropriate for members of a force whose duty it is to provide precisely the type of protection from the harm that befell Ms Michael. This is the essential and critical obligation of the police force. Any other professional would be liable for inaction with such grievous consequences. So also should be the police.[87]

104 Lady Hale supported Lord Kerr's analysis adding:

However, in developing the law it is wise to proceed on a case by case basis, and the formulation of it by Lord Kerr JSC would be sufficient to enable this claim to go to trial at common law as well as under the Human Rights Act 1998. It is difficult indeed to see how recognising the possibility of such claims could make the task of policing any more difficult than it already is. It might conceivably, however, lead to some much needed improvements in their response to threats of serious domestic abuse.

105 Finally, the plaintiffs accepted that D's Case turned on the application of the European Convention for the Protection of Human Rights and Fundamental Freedoms, and could not be taken to change the common law. The plaintiffs argued that, despite that context, Lord Kerr JSC (with Lady Hale PSC agreeing) in analysing the evolution of the common law approach to police duties, stridently criticised the rationale for the decision in Hill's Case. His Lordship observed:

Lord Hughes JSC has said that law enforcement and the investigation of crime involve a complex series of judgments and discretionary decisions; that they concern the choice of lines of enquiry, the weighing of evidence and the allocation of finite resources. All of that is unexceptional. But the claim that to

revisit such matters step by step by way of litigation... would inhibit the robust operation of police work... divert resources from current enquiries [and act as a deterrent] not a spur, to law enforcement

is unsupported by any evidence... Carrying out police investigations sufficiently should not give rise to a diversion of resources. On the contrary, it should lead to more effective investigation of crime, the enhancement of standards and the saving of resources. There is no reason to suppose that the existence of a right under article 3 to call to account egregious errors on the part of the police in the investigation of serious crime would do other than act as an incentive to avoid those errors and to deter, indeed eliminate, the making of such grievous mistakes.

106 Lord Neuberger also addressed this issue, stating:

That view is entirely defensible, but, at least in the absence of concrete evidence to the contrary, so is the opposite view that the imposition of such a duty, provided that it is realistically interpreted and implied, would serve to enhance the effectiveness of police operations.

107 The plaintiffs invited me to follow DC v New South Wales, discussed above, submitting that there is no binding Australian authority as to whether the minority or majority positions in Smith and Michael is to be preferred, and the dissenting judgments in those cases are powerful. As Basten JA stated, the question remains open.

108 On policy considerations, the plaintiffs also referred to Hill v Hamilton-Wentworth Regional Police Services Board,[88] in which the Supreme Court of Canada held that the police owed a duty of care in negligence to particular suspects under investigation. The plaintiff in that case was charged with a series of robberies and imprisoned for 20 months, despite the fact that exculpatory evidence was readily available. The court rejected an inconsistent duties contention, observing that even if a potential conflict in duties were to arise, a duty of care would not necessarily be negated, as recognising such a duty may have positive policy implications.[89] The majority considered that defining the applicable standard of care would limit the inhibition of police discretion and the diversion of scarce resources.[90] The court described the claim that liability in tort would change police behaviour as speculative. The plaintiffs submitted that such an approach could and should be followed. Although the Canadian law as to duty of care differed from Australia, Australian courts are familiar with both consideration of policy issues and the Crimmins mandate that consideration of supervening policy reasons occur after the application of the standard salient features.

109 The defendant contended that Hill v Hamilton-Wentworth Regional Police Services Board, considered an entirely different tort, and the analysis of duty of care applied principles that have never formed part of Australian law.

110 The plaintiffs referred to four interstate cases in their submissions.

111 First, in Cran v NSW,[91] the New South Wales Court of Appeal considered whether the police and the DPP owed a duty to Cran arising from police conduct in investigation of a crime. Cran suffered psychiatric harm from the unnecessary prolongation of his incarceration due to the failure of police to analyse confiscated stickers, wrongly thought to contain LSD. At trial, the respondent successfully argued that, as the omission that occurred was one that arose in the course of police investigation, it was immune from civil action.

112 The New South Wales Court of Appeal agreed, holding that the failure was an aspect of the police investigation, and the imposition of a duty of care in those circumstances could give rise to inconsistent duties affecting the allocation of resources.[92] Santow JA also concluded that there was no express or implied assumption of responsibility.[93] As a result, the public interest in the unimpeded investigation by the police precluded the imposition of any duty of care owed to the appellant.[94]

113 The plaintiffs submitted that Cran should be considered with caution. The decision should be seen as an analogue with Sullivan v Moody and, accordingly, as concerned with the fact that police operations would be negatively affected by the existence of a duty of care owed to innocent suspects. The result was also affected by concerns in relation to the finality of litigation.[95] Santow JA employed the language of 'immunity' when describing limitations on the scope of a police officer's duty of care in the conduct of an investigation,[96] an approach that has not found favour in Victoria.[97]

114 Second, the plaintiffs submitted Spearpoint was analogous to the current circumstances, with 'glaring similarities' between the facts. The plaintiffs also noted striking similarities in the pleading of the claims and the grounds on which summary dismissal was sought.[98] As I have noted above, Ipp JA (with whom Beazley JA and Allsop ACJ agreed) suggested that Lord Bingham's dissenting judgment in Smith was cogent, each case depends on its own facts, and the issue was not a matter that should be dealt with at the dismissal stage.[99]

115 Allsop ACJ also emphasised the need to examine the facts bearing on the relationship between the plaintiff and the putative tortfeasor, reasoning:

This close examination will involve an assessment of salient features such as foreseeability, degree of harm, vulnerability, reliance, assumption of responsibility and numerous other possible factors. These other factors will include legal policy such as coherence and conformity with other duties or legal obligations.

...

Here the testing and possible vindication of the plaintiffs' assertions through the legal process will depend significantly upon the relationship proven on the particular facts between the plaintiffs and the defendant. One aspect of this, on the material in the papers could be circumstances of communication of the fact that a warrant had issued. This may conceivably give rise to questions of assumption of responsibility whether to an individual or generally which might assist in the imputation of a legal obligation to act and to exercise care. I do not draw this conclusion, I only state it to illuminate the potential for the fact based legal imputation.[100]

An application for summary dismissal is an extreme measure. It forever shuts a plaintiff out of an alleged claim. There is no case in Australia which says that a police officer is immune from suit in the sense that a police officer never can owe a duty of care. Although, as Allsop ACJ indicated during the course of argument, the cases may be rare where a duty of care is found, it was not established on this case that there could be no duty of care owed.[101]

The plaintiffs submitted that Spearpoint was a persuasive authority for their submission that this proceeding cannot be summarily dismissed.

116 Thirdly, in Crowley,[102] Crowley, who was known to be mentally unwell and armed, was shot in the neck by a police officer. The ACT Court of Appeal overturned the trial judge's finding that police owed a duty of care to Crowley, applying Hill's Case, which it viewed as laying down a general principle against police liability in tort, including in relation to operational policing.[103] The Court of Appeal expressed concern regarding the conflict between a potential common law duty and statutory duties.[104] The plaintiffs submitted that the principle in Hill's Case was erroneously formulated too widely, the case predated Michael, and the Court of Appeal doubted the authority of Zalewski, which the Victorian Court of Appeal reaffirmed in Richards. Consequently, application of Crowley should be approached with care.[105]

117 The fourth case was Batchelor v Tasmania,[106] in which Blow J (as his Honour then was), applying the General Steel test, refused to strike out claims brought by and on behalf of a son, whose mother was shot dead by his father, before his father killed himself. On the night prior to her death the mother was the victim of family violence perpetrated by the father, and on the day of her death she attended the Launceston Police Headquarters. She later attended the family residence with police, where she was shot by the father. In determining that the claims of negligence were at least arguable, Blow J suggested that the 'doctrine of immunity' as discussed in Hill's Case may not form part of the common law and may not be applicable where an officer acts otherwise than in accordance with his or her training.[107] Of relevance in this regard was a 'pro-charge pro-arrest' policy that was pleaded to be in force at the relevant time, which if followed, would have resulted in a warrant for apprehension of the father.[108] The plaintiffs submitted that the current circumstances are analogous to Batchelor. They intend to adduce at trial that if the applicable Victoria Police policies had been implemented the father would have been apprehended and charged for breach of intervention orders.

118 The plaintiffs identified that in both Zalewski and Richards this court declined to strike out claims of negligence against police officers. In Zalewski, Hansen J (with Brooking and JD Phillips JJ agreeing) rejected an immunity argument, noting that in contrast to Hill's Case, the case involved 'the acts or omissions of certain police officers in proceeding in a particular situation of foreseeable risk of death or injury'.[109] Hansen J considered that police may be liable for acts or omissions in the course of their duties, and that while considerations of public policy may exclude liability in an appropriate case, the policy needs to be clearly identified.[110] His Honour commented:

Even if one is to accept there may be an immunity as found in the English cases, the present is a different case. This is a case of an experienced police officer who it was open to the jury to find acted impetuously, without due inquiry and reflection, in disregard of police instructions ...

on the facts of this case the basis of the immunity contended for before this court did not exist, because Zalewski did not act in accordance with his training and instructions.[111]

The plaintiffs submitted that evidence is foreshadowed by the pleading that police similarly acted contrary to their training and instructions.

119 In Richards, the Court of Appeal rejected the contention of a general immunity for the benefit of the police. Redlich JA (with whom Nettle and Hansen JJA agreed), stated that the duty of care alleged was not necessarily inconsistent, as 'the performance of the one duty does not of necessity require action that would create a substantial risk that the putative duty...would be infringed'.[112] Redlich JA reasoned that the salient features test supported the contention that the imposition of a duty of care was arguable:

[A] consideration of the facts bearing upon the relationship between the plaintiff and the police and an analysis of the salient features, such as legal policy, coherence of the law, conformity with other duties and obligations, foreseeability, degree of harm and vulnerability do not compel the conclusion that the plaintiff must fail in her claim that such a duty exists.[113]

120 The plaintiffs submitted that in Richards and Zalewski the notion of immunity has been rejected, with proximity and the salient features test being applied. Insofar as summary judgment was granted in Gesah, the plaintiffs submitted that the distinction was that the plaintiff was a suspect, engaging the spectre of inconsistent duties. Richards and Zalewski were distinguished on their facts, Beach J determining that '[i]n the absence of exceptional circumstances, police officers do not owe a duty of care to an individual to investigate a complaint of actual or threatened criminal conduct',[114] and that the salient features test did not support a finding of duty of care. It may be that, at trial, Gesah might be cautiously approached as the reported facts are sparse, and the outcome appears to have been affected by issues such as advocates' immunity and finality of litigation. Insofar as the defendants relied on Gandy, it was said to be distinguishable on the facts. These are not matters that I need decide on this application. Rather, such issues are more appropriately resolved in the context of evidence at trial.

121 The plaintiffs also noted that in Angeleska,[115] a claim brought by Slaveski's wife alleging similar duties as in Slaveski, an associate judge held that there were no special circumstances warranting imposition of a duty of care in relation to failure to investigate complaints of phone calls from an unknown source. The plaintiffs' submitted that the facts of those cases fell within the principle from Hill's Case and are distinct from the circumstances at hand. The plaintiffs submitted that Slaveski and Angeleska, although bedevilled by their particular facts, summarised the Victorian position.

122 Although the Victorian authorities establish that a duty of care to investigate criminal conduct will not arise save for exceptional circumstances, the ASOC does not allege a 'duty to investigate'. Rather, the pleaded circumstances are analogous to Richards, as it is alleged that the police were negligent in responding to incidents of family violence such that the plaintiffs were at risk of foreseeable harm.

(a) police in Victoria do not enjoy an immunity from suit;

(b) a duty of care to investigate criminal conduct will not arise other than in exceptional circumstances; and

(c) police may be found to owe a duty of care where the salient features test is satisfied.

The plaintiffs submitted that their pleaded case is not that the police owed a duty of care to investigate and that the salient features test can be satisfied. Additionally, on the issue of whether the supervising officer owes a duty, the plaintiffs rely Kyrou J's observation in Slaveski to the effect that the question remains open.

124 The plaintiffs submitted in the alternative that if Hill's Case is good law, the developing jurisprudence permits imposition of a duty of care on police in at least four circumstances:

(a) exceptional circumstances, and on this point the plaintiffs took issue with the comments of the defendant that such a category really referred to the two exceptions accepted in the UK cases;[116]

(b) where police have assumed responsibility to particular members of the public or where a member of the public is put in a vulnerable position as a result of police actions and has altered their position accordingly;[117]

(c) where there is an 'imminent threat', which in essence, is Lord Bingham's liability principle;[118] and

(d) in relation to the operational activities of police undertaken in circumstances where there is a risk of foreseeable harm.[119]

1. The plaintiffs submitted that their claims fell into each category. The circumstances are exceptional as the father was a recidivist perpetrator of family violence, the subject of four intervention orders, with whom the police had had interaction. The police had responsibility for the enforcement of the intervention orders, and the plaintiffs sought the protection of the police or relied on them, and the clearest example of exceptional circumstances was when the father was dropped off at or near the premises of the plaintiffs.
2. Reference is made to a number of allegations of 'imminent threat' in the ASOC,[120] albeit the plaintiffs accepted that that exception has only been articulated in the United Kingdom.
3. The plaintiffs submitted there was a possible fifth exception, or subset of the fourth category: circumstances where a police officer fails to follow their own training and instructions, citing Blow J in Batchelor and Hansen J in Zalewski in relation to the application of 'pro-charge pro-arrest' policies.[121]
4. I am not persuaded that these 'exceptions' should be understood as anything other than the application of the salient features approach.

129 The plaintiffs submitted that the salient features of foreseeability, knowledge, responsibility, and control applied. It was reasonably foreseeable that the plaintiffs required protection from breaches of the intervention orders by the father, and that failure to protect may result in injury. Similarly, failure to take reasonable care to enforce extant intervention orders may plainly result in injury.

130 The knowledge of the police officers was said to be explicit when there was an extant intervention order. The police officers knew or ought to have known the terms of the extant intervention orders, as they applied for the first intervention order, and applied to vary the first and third intervention orders.[122] Further, the orders and various incidents were logged on the LEAP database. Beyond the terms of the intervention orders, on a number of occasions the police obtained specific knowledge of the risk to the plaintiffs.[123]

131 On the criterion of control, the defendant contended there could not be control as the father was never taken into custody, citing Lord Toulson's comments in Michael.[124] The defendant referred to a number of High Court cases in which the issue of control was significant.[125] In Brodie v Singleton Shire Council[126] and Pyrenees Shire, the element of 'control' was determinative in each case.[127] The absence of control can also be decisive. In Modbury Triangle, for example, although the owner of a shopping centre had control over things such as the lighting in a carpark where an employee was attacked, the source of the risk of harm, the attacker, was beyond the owner's control. Additionally, the subject matter over which control was or should have been exercised requires identification. This approach was taken in Kirkland-Veenstra,[128] and Crimmins[129] should be similarly understood.[130]

132 The defendant contended that any proposition that each individual police officer nominated in the ASOC could exercise control in order to prevent the father either breaching an extant intervention order or committing any act that constituted family violence is untenable. The application of the criminal law, orders of a court, and the rights and obligations imposed by the relevant family violence legislation constrained the ability of any individual officer to control the father. Although the plaintiffs will rely on the existence and content of family violence policies, in terms of powers afforded to police officers relevant to the duties alleged, very 'little is different in the armoury of the police officer from 20 years ago'. Police have available to them powers of arrest, circumscribed in slightly different ways in each of the relevant pieces of legislation.[131]

133 Until the power of arrest is exercised it cannot be said that a police officer controls any member of the community in a way that gives rise to a duty to prevent that person doing harm. In Kirkland-Veenstra, unless police exercised the power to take control of the individual who committed suicide, the officers did not have control of him. On the present allegations, absent the exercise of a power to arrest, police do not have control over the father.

134 The plaintiffs claimed that there is nothing in the Crimmins analysis that suggests that when considering the alleged duties of care the court has to find nothing short of custody. The notion is control of the risk, and taking control of the offender is only one way of minimising risk. Moreover, there is no analogy between the assumed facts and Modbury Triangle, where the landlord was deemed not to owe a duty in relation to the unpredictable criminal acts of a unknown third party at a shopping centre carpark. This is particularly so in the context of police officers with specialised skills, as Lord Bingham noted in Smith.

135 The defendant's submission was unduly narrow and in argument the defendant accepted that the relevant focus was on control of the risk not the offender. Once that is recognised, the issue of control becomes self-evidently fact sensitive and a matter for evidence. Alternative forms of control may include security for the plaintiffs, or surveillance of the father.

136 J Forrest J so concluded in Matthews v SPI (No 2) in which on a strike out application his Honour determined that there was an arguable case that police officers owed a common law duty to warn the plaintiff of an impending firestorm. On the issue of control, his Honour stated:

In recent years the High Court has emphasised the question of control as being of "critical significance" in relation to the imposition of a duty of care ... Here the police officers had no control over the fire. However, at least arguably, officers on the ground and in the co-ordination roles in exercising their functions pursuant to DISPLAN had control over the manner in which warnings were given and determined their content. They also, at least arguably, had control over the co-ordination of activities of other organisations which may have been responsible for the provision of warnings. These matters can only be fleshed out at a trial.

...

The analysis that was undertaken in cases such as Pyrenees Shire Council, Crimmins, Graham Barclay Oysters and Stuart depended upon findings of fact made at the trial. Only Sullivan was decided on a pleading point and, essentially, it was to the effect that to impose a duty of care would be to create inconsistent obligations, given the statutory and professional responsibilities of persons caring for young children. That is not the case here. Here, considerations of the type that arose in Pyrenees Shire Council, Crimmins, Graham Barclay Oysters and Stuart will need to be examined - such as the nature of the functions or powers of the relevant police officer, vulnerability, reliance, control, assumption of responsibility, the level of potential harm and knowledge of the potential danger. [132]

His Honour went onto emphasise the importance of examination of the whole of the circumstances and the caution necessary in approaching a strike out application.[133]

137 The plaintiffs submitted that 'personal autonomy' considerations in the context of self-harm in Kirkland-Veenstra were distinguishable from the assumed facts on which police were fixed with the power and obligation to enforce the terms of intervention orders by reason of the legislation and policies that apply to them in discharge of their duties, which are set out above. Additionally, the plaintiffs suggested there can be no clearer example of police exercising control than having the father in a police vehicle and dropping him off very close to and within the zone identified in the intervention order.

138 As to vulnerability, the plaintiffs identified that both applicable legislation and policies recognise the vulnerability of victims of family violence. On the assumed facts, the plaintiffs were vulnerable to the consequences of any failure by the police to enforce the intervention orders. The vulnerability of the second to fourth plaintiffs was clear as they had no ability to protect themselves, and the responsibility of the police to protect them is commensurably greater.

139 The final salient feature identified by the plaintiffs was responsibility.

140 The defendant submitted that assumption of responsibility could not be established in the assumed circumstances, relying on Cran.[134] Santow JA (Ipp and McColl JJA agreeing) emphasised that the assumption of responsibility exception was a 'narrow exclusion zone'.[135] Gleeson CJ in Modbury Triangle identified two different meanings of responsibility, capacity and obligation, with only the latter meaning being relevant to the concept.[136]

141 The Court of Appeal also discussed assumption of responsibility in Spearpoint.[137] The defendant submitted that what was of significance to both Ipp JA and Allsop ACJ was the fact that the plaintiffs altered their position in response to a communication by a senior officer.[138] Smith was disinclined to accept the recommendations of police officers.[139] The only relevant allegation is the representation that Victoria Police would protect women and children from the commission of family violence and that as a result, the plaintiffs relied on the police officers to enforce compliance with the intervention order.[140] The defendant contended that those paragraphs amount to the discredited notion of 'general reliance', a fiction discarded by the High Court.

142 The plaintiffs expressly disavowed a general reliance case, noting that there will be evidence of specific reliance, and that while it is true that paragraphs 90(g) of the ASOC references what looks like general reliance, that paragraph is to be read with 90(h). The specific reliance case is pleaded against the background of the general statutory regime.

143 The plaintiffs submitted that police were responsible for enforcing compliance with the intervention orders, and on occasions they have assumed responsibility for the unfolding circumstances, most strikingly when they allegedly dropped the father off at the plaintiffs' premises while intoxicated.

144 In the UK, and some of the Australian, authorities weight is given to the concept of irreconcilable duties and also to considerations of public policy. The High Court has noted that each of these considerations is an identified salient feature to be considered when relevant.

145 The defendant asserted that the primary responsibility of police is the detection and prevention of crime, to improve the welfare of all members of society,[141] and that police are vested with a broad discretion in this regard.[142] It was said that a duty of care ought not be imposed where it is 'irreconcilable' with other such duties imposed by law on police, or gives rise to inconsistent obligations.[143]

146 The High Court recognised the conflicting duties principle in Tame[144] and in Sullivan v Moody.[145] The New South Wales Court of Appeal applied Tame and Moody in State of New South Wales v Klein,[146] when setting aside a refusal to strike out a claim by relatives of a man who was fatally shot by police.[147] The conflicting duties principle was also relied on in Gesah[148] and Gandy.[149] In Richards, an argument of inconsistent duties was rejected.[150] The defendant submitted, as identified in Gesah, that Richards can be distinguished as a case in which the police were the source of the danger.

147 The defendant asserted further that it is unnecessary to inquire substantively as to why the alleged common law duty is inconsistent with a public duty. For the plaintiffs to suggest otherwise is misconceived and the contention turns the focus from inconsistent duties to inconsistent objectives or results. One would hardly be likely to conclude that the object of preventing family violence is inconsistent with the broader object of maintaining the peace.

148 As identified in Gesah and Gandy, where the context is a police officer alleged to have failed to act in a way to prevent harm, the relevant principle focuses on the conflict between owing a duty to the citizenry as a whole, and the broad discretion involved, and simultaneously owing a duty of care to a particular citizen to protect that person from harm. The constraints, if the latter duty were imposed, would arise in relation to decisions not to exercise power either at all or in a particular way.

149 Alternatively, the defendant submitted that a substantive inconsistency can be identified. The imposition of the alleged duties on police would be inconsistent with the duties and responsibilities of police in dealing with the father and the plaintiffs, namely: investigating and assessing whether the father was involved in a contravention of the law; and recording relevant information and making informed assessments as to whether discretionary powers of apprehension should be exercised.[151]

150 The plaintiffs' contended that use of the terms 'conflicting' or 'inconsistent' may be a misnomer. The relevant principle, separate from any policy rationale, is one of irreconcilable duties. As such, either policy considerations or irreconcilable duties can be called in aid in the last step of the salient features checklist. That said, the plaintiffs contended that irreconcilable duties may not preclude the duties alleged, a duty owed to one segment of the community may not be in stark conflict with a duty owed to another. This is not a Sullivan v Moody scenario. The Victorian legislation prioritises victims of family violence, especially children, and the ASOC alleged no more than duties to do that which existing policies already require.

151 The plaintiffs contended that the defendant relied heavily on the potential of conflicting duties without identifying what the asserted inconsistent duties are. As Redlich JA observed in Richards, it is only where imposition of the duty of care creates inconsistent obligations in 'a real sense' that the duty should be denied. Here the duties were said to be 'on all fours' with the priorities in the relevant legislation and police policies.

152 The plaintiffs submitted that it is necessary to ask how duties are substantively inconsistent. It is incumbent on the defendant to articulate how the alleged duties would give rise to inconsistencies of the type identified in Sullivan v Moody. Insofar as the defendant sought to delineate the inconsistency as one between the duty owed by the police to the general public to keep the peace or prosecute crime and the alleged duties, the plaintiffs submitted that the delineation was not an instance of incompatible policing, rather, it was 'defensive police policy in another guise'.

153 The standard of care alleged required no more than police abiding by existing legislative and policy obligations. Legislation recognises that victims of family violence require special protection, and the legislative goals are reflected in the policies that apply to police. The VPM does not have statutory force, but it remains relevant to the question of whether there is a supervening policy reason for negating the alleged duty of care, and in determining the content of the standard of care, and in that context, it might inform salient features criteria like control and knowledge. The Family Violence Protection Act 2008 is relevant to allocation of resources as a policy issue as its core objectives reveal. When Basten JA referred to the adoption of Lord Bingham's approach in Australia as being an 'open question', his Honour referred to having 'regard to particular statutory schemes'.[152]

154 The plaintiffs took direct issue with the defendant's reliance on the statement of Lord Hope in Smith. The sentiment expressed in that statement was said to be 'so strikingly out of step with what is clearly the contemporary Victorian legislative approach and Victoria Police policy approach that it can have no role to play in this case'.

155 The defendant submitted that in both Tame and Halech v South Australia,[153] the court relied on considerations of public policy in addition to the conflicting duties principle and in both cases reference was made to Hill's Case and Brooks. Lord Keith stated in Hill's Case:

the common law, while laying upon chief officers of police an obligation to enforce the law, makes no specific requirements as to the manner in which the obligation is to be discharged.[154]

There is a wide discretion for police to decide how available resources should be deployed and whether particular lines of inquiry should be followed.[155] In Brooks, Lord Steyn reasoned that retreat from the core principle of Hill's Case, would be detrimental for law enforcement.[156]

156 The defendant submitted that insofar as the plaintiffs rely on the dissenting policy arguments from Smith and Michael, as the core legal principle from Hill's Case has been accepted in Australia,[157] it is unnecessary to look behind the principle to the policy considerations that it reflects. This was not an attractive submission. In Victoria, the policy issues underpinning Hill's Case were referenced in Richards, such as affording the police latitude in decisions that are made in discharge of their common law and statutory duties, and giving due weight to preserving the 'autonomy of police officers in their operational judgments and decisions'.[158] Additionally, the policy positions articulated in those dissenting judgments need to be approached with caution, given their differing United Kingdom context and references to the principle of proximity. They should only be considered to the extent that their principles are expressed in Australian law.

157 The defendants asserted that a different approach to policy considerations is not required in the context of family violence. Here, reliance was placed on statements of Lord Hope in Smith, set out above and the majority reasoning in Michael.[159]

158 The plaintiffs contended that a theme emerged in the language adopted when policy concerns have been described in the relevant cases, including 'detrimentally defensive',[160] detrimental to law enforcement, defensive policing,[161] discretionary decisions and 'scarce investigative resources'.[162] That language has been strongly criticised, and the plaintiffs intend to adduce evidence at trial demonstrating that the approach to policy considerations expressed in the minority judgments in Smith and Michael, and by the Canadian Supreme Court, are more consistent with the Victorian statutory and policy context.

159 These policy considerations are matters for a trial and to the extent that the defendant seeks to rely on policy considerations or 'inconsistent duties', it ought to:

(a) identify and explain which inconsistent duties are asserted to arise; and

(b) provide an empirical foundation for any assertion that the imposition of the alleged duties in this case will: constrain the making of decisions by police; negatively affect resource decisions or the pursuit of particular lines of inquiry; and imperil police autonomy.

160 The plaintiffs relied on Lord Bingham's comments in Smith:

It is not, however, easy to see how acceptance of the liability principle could induce a detrimentally defensive frame of mind. All that would be called for at first instance would be a reasonable assessment of the threat posed to an identified potential victim by an identified person.

...

Public policy points strongly towards imposition of a duty of care: Mr Smith approached a professional force having a special skill in the assessment of criminal risk and the investigation of crime, a professional force whose main public function is to maintain the Queen's peace, prevent crime and apprehend criminals. He was entitled to look to the police for protection and they, in my opinion, owed him a duty to take reasonable steps to assess the threat to him and, if appropriate, take reasonable steps to prevent it.[163]

In his Lordship's view, the 'liability principle' would not 'distract the police from their primary functions of suppressing crime and apprehending criminals' but would call for 'reasonable performance of that function'.[164]

161 In Michael, Lord Kerr JSC similarly reasoned:

it is difficult to predict with confidence what the operational consequences would be if liability for police negligence was recognised. But the difficulty in predicting whether problems may be encountered should not prompt a refusal to recognise a liability which, by all conventional norms, should be found to exist. A large part of that difficulty stems from the lack of empirical evidence to support any of the feared outcomes such as have been adumbrated in [Hill's Case].[165]

162 Questions of public policy are facts that should be proved, and as Lady Hale DPSC identified in Michael, the imposition of liability might conceivably lead to some improvements.[166] Reliance was also placed on D's Case, where Lord Kerr JSC reasoned that certain policy concerns were 'unsupported by any evidence',[167] and Lord Neuberger made similar observations. [168]

163 The plaintiffs contended that the absence of empirical evidence regarding the policy considerations on which the defendant relies ought weigh heavily against a summary dismissal. The raising of the policy considerations in the abstract ought not 'trump' the existence of the alleged duty of care.

164 There are like statements in Australian authorities. In Zalewski, for example, Hansen J stated:

in an appropriate case considerations of a public policy nature may exist which ought to be held to exclude liability. But whether that is so and whether such exclusion will be of a duty of care by reason of the relationship or other factors which may affect the existence of a duty of care, or by reason of a separately identified principle of public policy will have to be considered in an appropriate case. When the matter does require judicial determination, the policy will have to be clearly identified and the limits of the application of any such policy fully considered.

A difficulty with the appellant's submission is the width of the expression of the immunity. While it is expressed to relate to "on the spot" operational decisions it is limited to those made, inter alia, "bona fide" and in accordance with "instructions, training and relevant orders". On this basis the applicability of the immunity would depend upon a careful examination of the facts in the particular case. Thus what is seen initially to be an attempt to state an immunity in abstract terms is in reality an immunity to be judged on the facts of the particular case.[169]

it adds nothing by way of explanation to say that it is a matter of public policy. It is necessary to identify the policy and explain its application by reference to its limits.[170]

166 The plaintiffs asserted that their call for evidence on this issue was not unique, identifying R v Moncilovic as an instance where the Court of Appeal suggested that evidence was required beyond a mere assertion as to the ramifications of a reverse onus of proof in criminal prosecution of drug offences.[171]

167 Finally, the plaintiffs submitted that the obligation to provide evidence in support of the defendant's identified policy considerations is particularly acute in the context of police responses to family violence in contemporary Victoria. Relevantly, the applicable legislation provides that one of its objects is maximising the safety of victims of family violence, and that another is promoting the accountability of perpetrators. How then is the decision-making discretion of police officers put at risk? If the defendant proposes to rely on scarcity of resources in responding to Smith's reports, or decisions being made on account of the rights of the father, such matters should be the subject of evidence at trial.

168 In Kuhl v Zurich Finance Services Australia Ltd, French CJ and Gummow J emphasised that when determining the existence of a duty of care, and its scope and content 'those questions are determined by considering reasonable foreseeability and the "salient features" of the relationship between the plaintiff and defendant'.[172]

169 Were I to accede to the defendant's application the plaintiffs would be forever shut out from seeking to prove their claim at trial. As such an application for summary dismissal is an extreme measure and has always been acknowledged as such.

170 Australian common law has not affirmatively recognised that a police officer can never owe a duty of care. Whether a police officer does owe a duty of care in the terms identified in the amended statement of claim must necessarily be determined on a close analysis of the facts bearing on the relationship between the plaintiffs and the putative tortfeasor for whom the defendant is responsible. I accept that there are many cases in which it has been held that police and the police force as a whole do not owe a duty of care to a plaintiff in the particular circumstances of those cases. In no case has a court determined that no duty of care was owed in circumstances that demonstrate the degree of proximity between the plaintiffs and the police that is likely to be demonstrated on the evidence in this case at trial and in the legislative and policy framework that prevail in respect of domestic violence at the relevant time.

171 Ultimately, the task involved in the resolution of this proceeding is fact rich and fact intensive. The defendant has not persuaded me that no duty of care could arise on the assumed facts. Rather, I am persuaded that the issue must be determined once the facts have been established at trial.

172 As the New South Wales Court of Appeal held in Spearpoint, on reasonably similar facts, a duty of care may at least be arguable. The structure and shape of that argument can be seen in the cases referred to by the plaintiffs. Such arguments can only be evaluated on a close analysis of the facts established following a trial. Only on such close analysis will it become clear whether the reasoning in the cases relied on by the defendants will be indistinguishable from the circumstances of this case.

173 In particular, I am not disposed to accept in an abstract way arguments based upon irreconcilable duties or policy considerations that are not specifically particularised and proved by reference to the underlying facts. Likewise the salient features identified in the ASOC are fact sensitive, capable of being found on the assumed facts, if proved at trial.

174 The defendant's contention that the proposed duties of care have no real prospect of being successfully argued has not been made out. Subject to any further submission from counsel the defendant's summons filed 8 December 2017 will dismissed with costs.

[1] The claim was commenced in the County Court of Victoria on that date and on 21 September 2017 orders were made transferring the proceeding to the Supreme Court of Victoria pursuant to s 21(1) of the Courts (Case Transfer) Act 1991 (Vic).

[2] As 'family violence' is defined from time to time in the each of the by each of the Crimes (Family Violence) Act 1987 (Vic), the Magistrates Court Act 1989 (Vic) (as amended by the Magistrates' Court (Family Violence) Act 2004 (Vic)) and the Family Violence Protection Act 2008 (Vic).

[3] Victoria Police Act 2013, s 74.

[4] Amended Statement of Claim dated 23 November 2017 ('ASOC').

[5] Crimes (Family Violence) Act 1987 (Vic); see also Family Violence Protection Act 2008 (Vic).

[6] ASOC, Part 5.

[7] Many, but not all, police officers are identified by name and number, or partially identified.

[8] ASOC, [124] - [135], specifically raising ss 13(1), 8(2), 8(3), 17(1).

[9] [2013] VSCA 158; (2013) 42 VR 27, 40 [35].

[10] Civil Procedure Act 2010 (Vic) s 64.

[11] (2018) 356 ALR 178, [23] (citation omitted).

[12] Citing Bodycorp Repairers Pty Ltd v Maisano (No 11) [2016] VSC 645 [58]; Matthews v SPI Electricity Pty Ltd (Ruling No 2) [2011] VSC 168; (2011) 34 VR 584, 590 [22]; NSW v Spearpoint [2009] NSWCA 233 [31] ('Spearpoint').

[13] Cumming v NSW [2008] NSWSC 690 [16].

[14] Citing Ottedin Investments v Portbury Developments [2011] VSC 222; (2011) 35 VR 1, 8 [18].

[15] [2000] HCA 61; (2000) 205 CLR 254, 290 ('Modbury Triangle').

[16] Citing Slaveski v State of Victoria [2010] VSC 441 [206] - [208] ('Slaveski').

[17] Citing Family Violence Protection Act 2008 (Vic) ss 5 - 8.

[18] Citing Vairy v Wyong Shire Council [2005] HCA 62; (2005) 223 CLR 422, 443 (Gummow J); CAL No 14 Pty Ltd v Motor Accidents Insurance Board [2009] HCA 47; (2009) 239 CLR 390, 418 (Hayne J); Kuhl v Zurich Financial Services Australia Ltd [2011] HCA 11; (2011) 243 CLR 361, 370-371 [20].

[19] Referring to ASOC [14] - [17, [89] - [90] and [101] - [102] in support of this construction.

[20] Referring to ASOC [101] - [102].

[21] [2008] EWHC 919; [2009] 1 AC 225.

[22] Hill v Chief Constable of West Yorkshire [1989] AC 53 ('Hill's Case').

[23] [1999] HCA 59; (1999) 200 CLR 1 ('Crimmins').

[24] Agar v Hyde [2001] HCA 41; (2000) 201 CLR 552, 578 [68] (Gaudron, McHugh, Gummow and Hayne JJ) ('Agar'); Pyrenees Shire Council v Day [1998] HCA 3; (1998) 192 CLR 330, 368 (McHugh J).

[25] Kondis v State Transport Authority [1984] HCA 61; (1984) 154 CLR 672, 687.

[26] Agar [2001] HCA 41; (2000) 201 CLR 552.

[27] [1998] HCA 3; (1998) 192 CLR 330.

[28] Ibid 368; see also Hargrave v Goldman [1963] HCA 56; (1963) 110 CLR 40, 66; Sutherland Shire Council v Heyman [1985] HCA 41; (1985) 157 CLR 424, 478; Stuart v Kirkland-Veenstra [2009] HCA 15; (2009) 237 CLR 215, 258 ('Kirkland-Veenstra').

[29] [1998] HCA 3; (1998) 192 CLR 330, 368-369.

[30] [2009] HCA 15; (2009) 237 CLR 215, 251, 253, 258.

[31] Citing Gesah v Ross [2013] VSC 165 [41] ('Gesah'), S_ullivan v Moody_ (2001) 207 CLR 562; Tame v NSW [2002] HCA 35; (2002) 211 CLR 317 ('Tame'); Slaveski [2010] VSC 441 [345], [347], [2103]; Hunter Area Health Service v Presland [2005] NSWCA 33; (2005) 63 NSWLR 22, 122 [344]; which cases cite Hill's Case [1989] AC 53; Brooks v Commissioner of Police of the Metropolis [2005] UKHL 24; [2005] 1 WLR 1495 ('Brooks') and Van Colle v Chief Constable of Hertfordshire Police [2008] EWHC 919; [2009] 1 AC 225 (which is referred to in these reasons by reference to the companion appeal Smith v Chief Constable of Sussex Police ('Smith').

[32] [2010] VSC 441.

[33] [2013] VSC 165.

[34] [2006] VSC 480 ('Gandy').

[35] [1989] AC 53.

[36] Slaveski [2010] VSC 441 [328].

[37] _Slavesk_i [2010] VSC 441 [335].

[38] [2005] UKHL 24; [2005] 1 WLR 1495.

[40] Slaveski [2010] VSC 441 [336] citing S_ullivan v Moody_ (2001) 207 CLR 562; Tame [2002] HCA 35; (2002) 211 CLR 317; and McHugh J's comments in D'Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12; (2005) 223 CLR 1, 37 [101]-[102].

[41] [2008] EWHC 919; [2009] 1 AC 225. The second appeal was Smith v Chief Constable of Sussex Police.

[43] Ibid 261; Slaveski [2010] VSC 441 [341].

[44] Slaveski [2010] VSC 441 [347].

[45] Gesah [2013] VSC 165.

[46] (2001) 207 CLR 562.

[47] [2002] HCA 35; (2002) 211 CLR 317.

[48] [1995] VicRp 76; [1995] 2 VR 562 ('Zalewski')

[49] [2010] VSCA 113; (2010) 27 VR 343 ('Richards').

[50] Gesah [2013] VSC 165 [40]-[41].

[51] [2006] VSC 480.

[53] [2015] UKSC 2; [2015] AC 1732, 1750 ('Michael').

[54] [2018] UKSC 11; [2018] 2 WLR 895 ('D's Case').

[55] [2016] NSWCA 198.

[56] [2015] UKSC 2; [2015] AC 1732, 1747.

[57] Michael [2015] UKSC 2; [2015] AC 1732, 1760 [97].

[59] [2016] NSWCA 198, appealed to the High Court but special leave to appeal was revoked: New South Wales v DC (2017) 344 ALR 415.

[61] Richards [2010] VSCA 113; (2010) 27 VR 343.

[62] See eg Howard v Jarvis [1958] HCA 19; (1958) 98 CLR 177.

[63] Zalewski [1995] VicRp 76; [1995] 2 VR 562, 578.

[64] Richards [2010] VSCA 113; (2010) 27 VR 343, 348.

[65] See eg Richards [2010] VSCA 113; (2010) 27 VR 343, 348 [20]; Spearpoint [2009] NSWCA 233 [9], [31]; Slaveski [2010] VSC 441 [351].

[66] Citing ACT v Crowley [2012] ACTCA 52; (2012) 7 ACTLR 142 ('Crowley').

[68] Spearpoint [2009] NSWCA 233 [11].

[69] [2014] HCA 36; (2014) 254 CLR 185, 201 [24].

[70] Gesah [2013] VSC 165 [43].

[71] Richards [2010] VSCA 113; (2010) 27 VR 343, 351 [30].

[72] Caltex Refineries (QLD) Pty Ltd v Stavar [2009] NSWCA 258; (2009) 75 NSWLR 649, 676 [102] (Allsop P) ('Stavar').

[74] Hill's Case [1989] AC 53, 62.

[76] Brooks [2005] UKHL 24; [2005] 1 WLR 1495, 1509-1510 [30].

[77] Smith [2008] EWHC 919; [2009] 1 AC 225, 271, 277, 280.

[83] Michael [2015] UKSC 2; [2015] AC 1732, 1771, 1775, 1785.

[87] Ibid 1780 [175], 1781-1782, [181].

[88] [2007] 3 SCR 129.

[91] [2004] NSWCA 92; (2004) 62 NSWLR 95 ('Cran').

[92] Ibid 109 [50]-[51] (Santow JA).

[96] Ibid 105 [38]-[39], 108 [45], 113 [63].

[97] Richards [2010] VSCA 113; (2010) 27 VR 343, 348-349 [20].

[98] Spearpoint [2009] NSWCA 233 [8].

[102] [2012] ACTCA 52; (2012) 7 ACTLR 142.

[105] Note Angeleska v Victoria (No 3) [2016] VSC 568, [54] ('Angeleska').

[106] [2005] TASSC 11; (2005) 13 Tas R 403 ('Batchelor').

[109] Zalewski [1995] VicRp 76; [1995] 2 VR 562, 576.

[112] Richards [2010] VSCA 113; (2010) 27 VR 343, 350 [27].

[113] Richards [2010] VSCA 113; (2010) 27 VR 343, 351 [30].

[114] Gesah [2013] VSC 165 [41].

[115] [2016] VSC 568.

[116] Citing Richards [2010] VSCA 113; (2010) 27 VR 343, 349 [21]; Thompson [153]; Gesah [2013] VSC 165 [42]; Angeleska [2016] VSC 568 [59]; Michael [2015] UKSC 2; [2015] AC 1732, 1780.

[117] Cran [2004] NSWCA 92; (2004) 62 NSWLR 95, 109 [52]; Spearpoint [2009] NSWCA 233 [14].

[118] Smith [2008] EWHC 919; [2009] 1 AC 225, 261 [44]; Michael [2015] UKSC 2; [2015] AC 1732, 1780, 1785.

[119] Gandy [2006] VSC 480 [8]; Richards [2010] VSCA 113; (2010) 27 VR 343, 348-349 [19]-[20]; Zalewski [1995] VicRp 76; [1995] 2 VR 562, 578.

[120] ASOC [52], [52], [54], [75] and [82].

[121] Zalewski [1995] VicRp 76; [1995] 2 VR 562, 578 - 579; Batchelor [2005] TASSC 11; (2005) 13 Tas R 403.

[123] ASOC [42], [44], [46], [48], [54], [63], [68], [68], [86], [71], [72], [77], [80].

[124] Michael [2015] UKSC 2; [2015] AC 1732, 1760.

[125] Citing Kirkland-Veenstra [2009] HCA 15; (2009) 237 CLR 215, 254 (Gummow, Hayne and Heydon JJ), where their Honours cite Crimmins [1999] HCA 59; (1999) 200 CLR 1; Brodie v Singleton Shire Council [2001] HCA 29; (2001) 206 CLR 512 ('Brodie'); Graham Barclay Oysters Pty Ltd v Ryan ([2002] HCA 54; 2002) 211 CLR 540; see also Burnie Port Authority v General Jones Pty Ltd [1994] HCA 13; (1994) 179 CLR 520; Agar [2001] HCA 41; (2000) 201 CLR 552; Modbury Triangle [2000] HCA 61; (2000) 205 CLR 254; Vairy v Wyong Shire Council [2005] HCA 62; (2005) 223 CLR 422, 453 (Gummow J).

[126] [2001] HCA 29; (2001) 206 CLR 512.

[127] See Graham Barclay Oysters Pty Ltd v Ryan [2002] HCA 54; (2002) 211 CLR 540, 598 [151]; Kirkland-Veenstra [2009] HCA 15; (2009) 237 CLR 215, 255 (Gummow, Hayne and Heydon JJ).

[128] [2009] HCA 15; (2009) 237 CLR 215, 255-256 (Gummow, Hayne and Heydon JJ).

[129] [1999] HCA 59; (1999) 200 CLR 1.

[130] Kirkland-Veenstra [2009] HCA 15; (2009) 237 CLR 215, 255 (Gummow, Hayne and Heydon JJ); see also Brodie [2001] HCA 29; (2001) 206 CLR 512, 559; Warragamba Winery Pty Ltd v State of New South Wales (No 9) [2012] NSWSC 701 [707].

[131] Crimes (Family Violence) Act 1987 (Vic) s 23; Family Violence Protection Act 2008 (Vic) s 124 and/or Crimes Act 1958 (Vic) ss 458 or 459(1).

[132] Matthews v SPI Electricity Pty Ltd (Ruling No 2) [2011] VSC 168; (2011) 34 VR 584, 613 [118], [120].

[134] [2004] NSWCA 92; (2004) 62 NSWLR 95.

[136] Modbury Triangle [2000] HCA 61; (2000) 205 CLR 254, 264 [23]; his Honour also cited Lord Goff's analysis in Spring v Guardian Assurance Plc [1995] 2 AC 296.

[137] [2009] NSWCA 233.

[139] Citing ASOC [60], [71] and [72].

[141] Rickard v New South Wales [2010] NSWSC 151 [77].

[142] See Hill's Case [1989] AC 53, 59; R v Commissioner of Police of the Metropolis; Ex parte Blackburn [1968] 2 QB 118, 136, 138; see also Hincliffe v Commissioner of Police [2001] FCA 1747; (2001) 118 FCR 308, 320 [35]. In Victoria, police officers also swear an oath to 'preserve the peace', see Victoria Police Act 2013, Form 1, Schedule 2.

[143] Crowley (2012) 7 ACTLR; Richards [2010] VSCA 113; (2010) 27 VR 343, 350 [27].

[144] [2002] HCA 35; (2002) 211 CLR 317, 335.

[145] (2001) 207 CLR 562.

[146] [2006] NSWCA 295; (2006) Aust Torts Reports 81-862.

[147] Ibid [19]; discussing Thompson v Vincent [2005] NSWCA 219; (2005) 153 A Crim R 577; see also Hunter Area Health Service v Presland [2005] NSWCA 33; (2005) 63 NSWLR 22, 118 [368], 120 [378]-[379]; X v South Australia (No 3) [2007] SASC 125; (2007) 97 SASR 180, 227 [177], 281-282 [395]-[397].

[148] Gesah [2013] VSC 165 [41].

[149] Gandy [2006] VSC 480 [13]; see also his Honour's comments as to police officers having no duty of care to individuals with respect to carrying out their obligations qua police officer, [9].

[150] Richards [2010] VSCA 113; (2010) 27 VR 343, 351 [31].

[151] Pursuant to the Crimes (Family Violence) Act 1987 (Vic) s23, Family Violence Protection Act 2008 (Vic) and/or the Crimes Act 1958 (Vic).

[152] DC v NSW [2016] NSWCA 198 [76].

[153] [2006] SASC 29; (2006) 93 SASR 427.

[154] [1989] AC 53, 59.

[156] Brooks [2005] UKHL 24; [2005] 1 WLR 1495, 1509 - 1510.

[157] Citing Sullivan v Moody (2001) 207 CLR 562, 581 [57]; Tame [2002] HCA 35; (2002) 211 CLR 317, 396 [231]; D'Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12; (2005) 223 CLR 1.

[158] Richards [2010] VSCA 113; (2010) 27 VR 343, 351 [31].

[159] Michael [2015] UKSC 2; [2015] AC 1732, 1764 [116], 1764-1765 [114] - [120].

[160] Hill's Case [1989] AC 53, 63.

[161] Brooks [2005] UKHL 24; [2005] 1 WLR 1495, 1509-1510 [30].

[162] Slaveski [2010] VSC 441 [345]; D's Case [2018] UKSC 11; [2018] 2 WLR 895, 935 [132]; Gesah [2013] VSC 165 [41].

[163] [2008] EWHC 919; [2009] 1 AC 225, 262, 268.

[165] Michael [2015] UKSC 2; [2015] AC 1732, 1782.

[167] D's Case [2018] UKSC 11; [2018] 2 WLR 895, 917 [71].

[169] Zalewski [1995] VicRp 76; [1995] 2 VR 562, 578.

[170] Gala v Preston [1991] HCA 18; (1991) 172 CLR 243, 277.

[171] R v Momcilovic [2010] VSCA 50; (2010) 25 VR 436, 475-476 [145]-[146].

[172] [2011] HCA 11; (2011) 243 CLR 361, 371 [20].