Plaintiff v Defendants

PRACTICE AND PROCEDURE - Summary judgment - Application for summary dismissal - Supreme Court (General Civil Procedure) Rules 2005, r 23.01 - Civil Procedure Act 2010, ss 63 and 64.

1 On 22 July 2008, the plaintiff was a prisoner at Fulham Correctional Centre in Sale. On that day he was arrested and charged with the murders of Margaret Tapp and Seana Tapp in August 1984. Following the laying of charges, the plaintiff's arrest was publicised and the plaintiff was transferred from Fulham to the Barwon Maximum Security Prison. On 6 August 2008, the charges (which had been based upon DNA evidence only) were withdrawn.

2 On 10 March 2011, the plaintiff commenced the present proceeding, against six defendants, seeking damages in respect of psychiatric injuries. The first defendant was the director of the Victoria Police Forensic Science Centre ("the VPFSC") and was responsible for the operation of the VPFSC; the second defendant was a deputy commissioner of Victoria Police and the superior of the third, fourth and fifth defendants; the third defendant was a detective inspector in charge of the Homicide Squad and the superior of the fourth and fifth defendants; the fourth defendant was a detective senior sergeant attached to the Homicide Squad and the superior of the fifth defendant; the fifth defendant was a detective senior constable attached to the Homicide Squad; and the sixth defendant is the State of Victoria.

3 In the statement of claim, the plaintiff makes allegations of negligence against the first five defendants. The sixth defendant is then said to be liable pursuant to the operation of s 23 of the Crown Proceedings Act 1958[1] and/or s 123 of the Police Regulation Act 1958.[2] There are also allegations made in the statement of claim of failing to comply with "operational training and procedures" in relation to the laying of the charges and the subsequent publication of them. Additionally, there are allegations of "wrongful arrest" and of a "refusal and/or failure ... to declare that the plaintiff was no longer a person of interest in relation to the investigation of the murders of Margaret Tapp and Seana Tapp".

4 In this application, the defendants seek the summary dismissal of the plaintiff's claims pursuant to r 23.01 of the Supreme Court (General Civil Procedure) Rules 2005 and/or s 63 of the Civil Procedure Act 2010. Pursuant to r 77.04, an Associate Judge referred the hearing of this application to a Judge of the Court.

5 In his statement of claim, the plaintiff makes (amongst others) the following allegations of fact:

(a) On 22 July 2008, the plaintiff was a prisoner at Fulham Correctional Centre in Sale consequent upon his breach of terms of parole imposed as part of a sentence of imprisonment on 7 July 2000. While a prisoner at Fulham on 22 July 2008, the plaintiff was arrested and charged by the fifth defendant with the relevant murders.

(b) On the same day, the fourth defendant, in a press conference, stated that the plaintiff's arrest on the murder charges was "obviously a great result for Victoria Police and the community" and that "we were able to run DNA evidence found on an item of Seana's clothing through the national DNA computer base and compare it to tens of thousands of profiles across Australia ... much to our delight, the DNA sample from the Tapp murder scene matched one of the DNA profiles on the database".

(c) By reason of his arrest and the laying of the murder charges, the plaintiff was transferred on 5 August 2008 to Barwon Maximum Security Prison.

(d) The VPFSC was at all relevant times in possession of and/or conducting investigative tests upon a DNA sample of the plaintiff and a DNA sample from the clothing of Seana Tapp.

(e) The first defendant, through his staff at the VPFSC, permitted the DNA sample of the plaintiff to contaminate, or to be contaminated by, the DNA sample from the clothing of Seana Tapp.

(f) The only evidentiary basis for laying the murder charges against the plaintiff was an alleged matching of the DNA sample of the plaintiff and a DNA sample obtained from the clothing of Seana Tapp.

(g) There was no evidentiary basis for the laying of the murder charges against the plaintiff because the DNA sample of the plaintiff and the DNA sample obtained from the clothing of Seana Tapp had been contaminated.

(h) If the second, third, fourth and fifth defendants had undertaken further or adequate investigation prior to the laying of the murder charges, such investigation would have excluded the plaintiff as a potential suspect in the murders of Margaret Tapp and Seana Tapp, and would further have disclosed that the DNA evidence was contaminated.

(i) The murder charges were withdrawn on 6 August 2008. This was announced by the second defendant as having occurred "by reason of doubt as to the reliability of the DNA evidence purporting to match a DNA sample of the plaintiff with a DNA sample from the clothing of Seana Tapp".

(j) Subsequent to, and despite, the withdrawal of the murder charges and the lack of any evidentiary basis connecting the plaintiff to the relevant murders, the third defendant "continued to maintain" (specifically, in a letter dated 10 November 2008) that the plaintiff was a person of interest in the investigation into the Tapp murders.

6 For the purposes of the present application, the facts alleged in the statement of claim must be assumed to be true.

7 The plaintiff pleads an alleged duty of care owed to him by the first defendant as director of the VPFSC in the following terms:

a duty of care to maintain and ensure the integrity of the plaintiff's DNA sample held in its possession (scil, the possession of VPFSC) and to ensure that adequate laboratory protocols were in place to prevent contamination of that sample by or with any other DNA sample held.

8 As against the second, third, fourth and fifth defendants, the plaintiff pleads a duty owed to him as follows:

a duty of care to ensure that such investigation and the subsequent laying of the murder charges and the publicising thereof was undertaken in a proper and professional manner and with reasonable skill and care.

9 The plaintiff then pleads various breaches of each of these duties. There then follows a plea in the following terms:

In the circumstances described in the foregoing paragraphs the arrest of the plaintiff on 22 July 2008 constituted wrongful arrest.

10 During the course of argument, I raised with counsel for the plaintiff the question of to what issue this plea was relevant. Initially, he responded that it was a "separate act of negligence".[3] Later, he said that "the wrongful arrest is a separate cause of action in itself".[4] However, when pressed that mere wrongful arrest (absent a concomitant battery or wrongful imprisonment or possible loss of reputation) did not constitute a cause of action, counsel for the plaintiff said that it was a plea of the tort of false imprisonment.[5]

11 When it was pointed out that in fact the statement of claim contained no plea of false imprisonment, counsel for the plaintiff foreshadowed that he might seek leave to amend the statement of claim to make this plea. Following the conclusion of the hearing, counsel for the plaintiff made application to deliver an amended statement of claim which was said to plead a false imprisonment claim. While it might be argued that the new plea of false imprisonment does not plead all of the material facts necessary to support such a cause of action, ultimately the defendants did not oppose the filing of the plaintiff's amended statement of claim.[6] Accordingly, subject to the resolution of this application, I would grant leave to the plaintiff to file and serve the proposed amended statement of claim.

12 The test for summary judgment under s 63 of the Civil Procedure Act is whether the claim the subject of the application has "no real prospect of success". The defendants submitted (and the plaintiff ultimately accepted) that the relevant principles to be applied in determining such an application are those set out by Dixon J in Ottedin Investments v Portbury Developments.[7] In Ottedin, his Honour said:

(1) If a proceeding or defence, or any particular claim, cause of action or ground of defence ("claim") is hopeless, untenable, bound to fail, or could not possibly succeed, then it ought be summarily dismissed. In other words, a claim which ought be dismissed under the old test will be dismissed under s 63.

(2) Section 63, however, is less stringent. It does not direct an inquiry into whether a certain and concluded determination could be made that the proceeding, or a claim, would necessarily fail. What is required is a practical judgment by the court as to whether a claim has more than a "fanciful" prospect of success.

(3) The court's discretion whether to exercise the power of summary dismissal is very wide. Section 64 of the Act expresses that the power is based in a consideration of the interests of justice. The Act provides direction in Part 2.1.[8] The discretion is to be exercised to facilitate the just, efficient, timely and costeffective resolution of the real issues in dispute between the parties. The court's powers in furthering the overarching purpose are facilitated by having regard to the objects and matters set out in s 9 of the Act.

(4) The court may be satisfied, on an interlocutory application, that there is no real prospect of success in a civil proceeding but nevertheless consider the dispute to be of such a nature that only a full hearing on the merits is appropriate. Whether a full hearing on the merits is appropriate is a relevant discretionary consideration in the circumstances of each proceeding.

(5) The power to order summary dismissal is to be exercised with great care, as a trial upon evidence of issues raised is the well-settled approach to the determination of litigation. When proceeding on a summary application to assess the prospect of success, a judge ought to feel confident that an assessment can properly be made of whether the overarching purpose is facilitated on dismissal of the impugned claims.

(6) That argument directed to the issues relevant on the application, perhaps even extensive submissions, may be necessary to demonstrate that the case of the plaintiff has no real prospect of success is not ordinarily a relevant consideration.

13 Putting the issues of false imprisonment and the failure to declare the plaintiff no longer to be a person of interest to one side for the moment, the central question in this proceeding is whether the individual defendants owe the duties of care alleged against them to the plaintiff. The first defendant contends that he owes no actionable duty on the basis of witness immunity. The second, third, fourth and fifth defendants contend they owe no duty of care at all. They contend that conflicting duties and public policy considerations militate against the existence of the duties alleged against them. The sixth defendant (State of Victoria) contends that if the submissions of the first to fifth defendants are accepted, then there can be no vicarious liability or transfer of liability pursuant to s 123 of the Police Regulation Act.

14 So far as the false imprisonment claim is concerned, the defendants submit that this claim is not maintainable in respect of a prisoner who has already been totally deprived of his liberty.

15 With respect to the "refusal and/or failure ... to declare that the plaintiff is no longer a person of interest ..." claim, the defendants submit that there is no principle of law entitling the plaintiff to claim damages in respect of this issue.

16 Witness immunity was described in the judgment of the plurality[9] in D'Orta-Ekenaike v Victoria Legal Aid & Anor,[10] in the following terms:

From as early as the 16th century, a disappointed litigant could not sue those who had given evidence in the case. That is, the disappointed litigant could not seek to demonstrate that witnesses had given, or parties had suborned, perjured evidence or that witnesses or parties had conspired together to injure that litigant. Nor could the disappointed litigant seek to demonstrate that what was said by the witnesses had defamed that litigant. All such actions were precluded or answered by an absolute privilege. It mattered not how the action was framed. And it mattered not whether the disappointed litigant alleged that the witness had acted deliberately or maliciously. No action lay, or now lies, against a witness for what is said or done in court. It does not matter whether what is done is alleged to have been done negligently or even done deliberately and maliciously with the intention that it harm the person who would complain of it. The witness is immune from suit and the immunity extends to preparatory steps. That the immunity must be pleaded as a defence makes it nonetheless an immunity from suit. As the whole Court said in Lange v Australian Broadcasting Corporation:

"The result [of the defence] is to confer upon defendants, who choose to plead and establish an appropriate defence, an immunity to action brought against them."

Persons who institute prosecutions owe no actionable duty to the defendant to take reasonable care in launching the prosecution. A prosecutor can be sued for the damage to the liberty and reputation of the defendant only when the prosecutor acted maliciously and without reasonable and probable cause. Moreover, the action is not in negligence but for the tort of malicious prosecution. Judges and witnesses owe no actionable duty of care not to make careless statements that may cause loss of liberty, reputation or money. Neither a judge nor a witness nor counsel can be sued even for false and defamatory statements made maliciously in the course of judicial proceedings. A witness's immunity from suit extends even to out of court conduct that is intimately connected with the giving of evidence in court.

18 The basis for witness immunity is said to rest on the promotion of two objectives: first, ensuring that witnesses are able to give evidence freely and in an atmosphere devoid of threats from suit from disappointed litigants; and secondly, to avoid a multiplicity of actions in which the evidence would be tried over again.[12]

19 Witness immunity extends to protect persons from being sued in respect of out of court conduct, provided that that conduct is sufficiently connected with the proceeding.[13] While there must be a connection between that conduct and the evidence that is to be given in court, the immunity exists regardless of whether evidence is in fact given.[14]

20 In support of the application for summary judgment on behalf of the first defendant, the defendants placed considerable reliance upon the New South Wales Court of Appeal decision of Commonwealth of Australia v Griffiths & Anor.[15] The facts of that case were set out in the judgment of Beazley JA as follows:[16]

The appellant, the Commonwealth of Australia, conducts the analytical laboratories, AGAL, and within the auspices of AGAL conducts a unit known as the Australian Forensic Drug Laboratory. ...

Mr Griffiths is a qualified pharmacist whose work relevantly involved the development of pharmaceuticals for potential sale, both within Australia and overseas. On about 2 or 3 July 1999, the New South Wales State police seized a quantity of substances from industrial premises at Castle Hill that were operated by Mr Griffiths. Thereafter, on 7 July 1999, Mr Griffiths was arrested and charged under s 24 of the Drug Misuse and Trafficking Act 1985 with being knowingly concerned in the manufacture of a prohibited drug, namely, methcathinone.

The seized substances were provided to the Australian Forensic Drug Laboratory of AGAL for analysis. Mr Ballard was the analyst assigned to undertake the analysis of the seized substances. He is an authorised analyst under s 37A of the Poisons and Therapeutic Goods Act. He is also authorised to provide certificates of analysis under the Drug Misuse and Trafficking Act. He was employed as an analyst by AGAL and thus was an employee of the Commonwealth.

Mr Ballard undertook the analysis of the seized substance at some time between 6 July and 5 August 1999 and on 7 September 1999 issued a certificate of analysis pursuant to s 43 of the Drug Misuse and Trafficking Act (the certificate of analysis) that stated that the seized substance was methcathinone. The certificate of analysis was used by the Commonwealth Director of Public Prosecutions (the DPP) in the prosecution of Mr Griffiths.

Mr Griffiths stood trial and was found guilty by a jury on 15 June 2001 and remained in custody until 26 October 2001. Mr Griffiths appealed to the Court of Criminal Appeal. The appeal was upheld and a verdict of acquittal was entered. Putting the matter in general terms, which is sufficient for present purposes, the basis for the acquittal was that Mr Ballard had manipulated the testing of the substance so as to produce an analysis that the substance was methcathinone. ...

Mr Griffiths commenced proceedings against, relevantly, the Commonwealth and Mr Ballard, alleging that each had breached a duty of care that each owed to him, by the issue of the certificate of analysis which was false or wrong and that he had suffered loss and damage as a result. Mr Griffiths also brought a claim under the Trade Practices Act 1974 (Cth) ... .

In pleading the existence of a duty of care, Mr Griffiths alleged that AGAL knew, or ought reasonably to have known, that the information, and relevantly, the certificate of analysis, that AGAL provided to the police or the DPP would be relied upon by the DPP in determining whether or not to prosecute or to continue to prosecute the criminal proceedings against him. It was also alleged that AGAL knew, or ought reasonably to have known, that the DPP relied on AGAL to exercise all reasonable care in the conduct of its analyses so as to correctly identify the seized substance and to fully and accurately advise the police or the DPP of the method and results of those analyses.

A similar allegation of the existence of a duty of care was made against Mr Ballard.

In the particulars to the statement of claim, it was alleged that AGAL had a duty to exercise reasonable supervision and control over its employees in order to ensure the accuracy of any analysis undertaken and of any certificate of analysis that was issued based upon such analysis. It was also alleged that there was a duty to provide an effective system of checking that its protocols or standard operational procedures were consistently applied in the conduct of analyses and an effective system of checking the accuracy of the results of any analysis that was undertaken.

Contrary to the statement in the certificate of analysis, the seized substance was not methcathinone. It followed that the certificate was false, either because the substance was not methcathinone, or because it had not been qualified in any way so as to indicate that there was an anomaly in the test results. Mr Ballard did not disclose the falsity of the statement or the anomalous results to the DPP.

Mr Griffiths further alleged that AGAL and Mr Ballard, by the issue of the certificate of analysis and by the failure to disclose the discrepancy in the testing procedures, made a misleading representation to the police and the DPP.

21 Mr Ballard gave evidence at trial. In holding that witness immunity extended not only to Mr Ballard, but also to his employer, the Commonwealth, Beazley JA[17] noted that there was no suggestion the certificate of analysis was prepared other than as part of the steps preparatory to trial. Her Honour noted further that in her opinion there was no possible basis to suggest that any of the impugned testing was carried out for a purpose unassociated with the prosecution of Mr Griffiths.[18]

22 The plaintiff resists the first defendant's application for summary judgment on two bases. First, it is said that there is no evidence that the first defendant was ever going to be a witness in any prosecution. Secondly, it is submitted that it is at least arguable that the principle of witness immunity has no application in the present case because there has been no previous proceeding the result of which might be impugned by allowing a negligence action to proceed against the first defendant. In making this submission, counsel for the plaintiff relied upon the judgment of Lasry J in Francis v Bunnett.[19]

23 In Francis v Bunnett, the plaintiff sued her former solicitor for damages for breach of retainer and negligence in connection with the conduct of a County Court proceeding. Central to the plaintiff's case was an allegation that the defendant had consented to the settlement of the proceeding for a fraction of what might have been recovered. A Master of this Court stayed the plaintiff's negligence claim on the basis that the defendant was protected by advocates' immunity. Lasry J allowed the plaintiff's appeal, accepting that it was at least arguable that where there was no judgment in underlying litigation to be called into question, the basis for advocates' immunity did not exist. Of considerable importance in his Honour's reasoning was the proposition in D'Orta-Ekenaike that the central justification for advocates' immunity is the undesirability of permitting parties to re-litigate matters which have already been judicially determined: the argument being that there is no advocates' immunity in cases where a plaintiff does not seek to call into question the correctness of an earlier judgment. This issue (so far as advocates' immunity is concerned) is not free from doubt.[20]

24 The defendants submit that Francis v Bunnett is distinguishable from the present case. While the central basis for advocates' immunity might be that once a controversy has been quelled by a judgment, that judgment should not be brought into question, for many years it has been held (and continues to be held) that witness immunity rests, not only on this basis, but also substantially upon the proposition that witnesses should be able to act with minds uninfluenced by the fear of litigation arising out of their evidence or their conduct in matters properly connected with that evidence.[21]

25 There is much to be said for this submission. First, on the authorities as they presently stand, the principle of witness immunity appears to rest equally upon the two bases to which I have referred[22] - whereas advocates' immunity now appears to rest more centrally upon the proposition that judgments should not be the subject of subsequent collateral challenges. Secondly (and this applies to advocates' immunity as well), it might be thought inherently unlikely that an immunity depends for its existence upon whether or not there has been an earlier underlying judgment that is sought to be brought into question. At least in the case of advocates' immunity, one could imagine a case where an advocate, recognising that he or she has been negligent, advises against settling a case so as to obtain a judgment and thus obtain an immunity which otherwise might not exist.

26 All of that said, I am not persuaded that the question of witness immunity is sufficiently clear in this case to justify giving summary judgment for the first defendant. There are two reasons for this. First, the plaintiff's argument concerning the absence of any challenge being sought to be made by him to a previous judgment is not hopeless. While I am not persuaded that this argument has great merit, unless I was persuaded either that the decision in Francis v Bunnett was clearly wrong, and/or that this decision could not form a foundation for the plaintiff's argument that witness immunity has no application in this case because there is no underlying judgment, then I could not conclude that the plaintiff's prospects of successfully answering the witness immunity point are no more than fanciful. In short, I am not so persuaded.

27 Secondly, the lack of evidence that the relevant DNA testing, for which the first defendant (at least as far as this application is concerned) must be held responsible, was intended to be the subject of evidence either by the first defendant or by anyone for whom he is responsible or vicariously liable, tells against the granting of summary judgment for the first defendant. This is not a case where it can be said that there is no reasonable prospect of the plaintiff successfully disputing the proposition that the relevant DNA testing would have been (or was intended to be) the subject of evidence given by or on behalf of the first defendant, or someone for whom he was (or is) vicariously liable, if the charges had been maintained.[23]

28 Further, so far as the principle of witness immunity currently resting upon two bases is concerned (permitting witnesses to give evidence freely, and to avoid a multiplicity of actions), it should also be remembered that so as the bases of advocates' immunity have changed over the years, it is not beyond possibility that the bases for witnesses' immunity might yet be developed further.[24]

29 For these reasons, the application for summary judgment in favour of the first defendant will be refused.

The negligence/breach of duty pleas against the second to fifth defendants

30 The duty of care pleaded against each of the second, third, fourth and fifth defendants may be divided into three components:

(a) a duty of care to ensure that the investigation of the murder charges was undertaken in a proper and professional manner and with reasonable skill and care;

(b) a duty of care to ensure that the laying of the murder charges was undertaken in a proper and professional manner and with reasonable skill and care; and

(c) a duty of care to ensure that the publicising of the laying of the murder charges was undertaken in a proper and professional manner and with reasonable skill and care.

31 In Sullivan v Moody,[25] the High Court said:[26]

The argument was conducted upon the basis that it was foreseeable that harm of the kind allegedly suffered by the appellants might result from want of care on the part of those who investigated the possibility that the children had been sexually abused. But the fact that it is foreseeable, in the sense of being a real and not far-fetched possibility, that a careless act or omission on the part of one person may cause harm to another does not mean that the first person is subject to a legal liability to compensate the second by way of damages for negligence if there is such carelessness, and harm results. If it were otherwise, at least two consequences would follow. First, the law would subject citizens to an intolerable burden of potential liability, and constrain their freedom of action in a gross manner. Secondly, the tort of negligence would subvert many other principles of law, and statutory provisions, which strike a balance of rights and obligations, duties and freedoms. A defendant will only be liable, in negligence, for failure to take reasonable care to prevent a certain kind of foreseeable harm to a plaintiff, in circumstances where the law imposes a duty to take such care.

32 Sullivan v Moody was a case that concerned whether or not medical practitioners retained to examine children the subject of allegations of sexual abuse by others owed a duty of care to the fathers of those children. The Court went on:[27]

More fundamentally, however, these cases present a question about coherence of the law. Considering whether the persons who reported their suspicions about each appellant owed that appellant a duty of care must begin from the recognition that those who made the report had other responsibilities. A duty of the kind alleged should not be found if that duty would not be compatible with other duties which the respondents owed.

How may a duty of the kind for which the appellants contend rationally be related to the functions, powers and responsibilities of the various persons and authorities who are alleged to owe that duty? A similar problem has arisen in other cases. The response to the problem in those cases, although not determinative, is instructive.

In Hill v Chief Constable of West Yorkshire, the House of Lords held that police officers did not owe a duty to individual members of the public who might suffer injury through their careless failure to apprehend a dangerous criminal. Lord Keith of Kinkel pointed out that the conduct of a police investigation involves a variety of decisions on matters of policy and discretion, including decisions as to priorities in the deployment of resources. To subject those decisions to a common law duty of care, and to the kind of judicial scrutiny involved in an action in tort, was inappropriate.

Earlier, in Yuen Kun Yeu v Attorney-General of Hong Kong, the Privy Council held that a regulatory authority did not owe a duty of care to corporate depositors. Their Lordships pointed to the responsibilities and discretions of the authority, and concluded that there was no intention on the part of the legislature that, in considering whether to register or deregister a company, there should be a common law duty of care superimposed upon the statutory framework.

Reference has already been made to the reasoning of Lord Browne-Wilkinson in X (Minors) v Bedfordshire County Council.

The circumstance that a defendant owes a duty of care to a third party, or is subject to statutory obligations which constrain the manner in which powers or discretions may be exercised, does not of itself rule out the possibility that a duty of care is owed to a plaintiff. People may be subject to a number of duties, at least provided they are not irreconcilable. A medical practitioner who examines, and reports upon the condition of, an individual, might owe a duty of care to more than one person. But if a suggested duty of care would give rise to inconsistent obligations, that would ordinarily be a reason for denying that the duty exists. Similarly, when public authorities, or their officers, are charged with the responsibility of conducting investigations, or exercising powers, in the public interest, or in the interests of a specified class of persons, the law would not ordinarily subject them to a duty to have regard to the interests of another class of persons where that would impose upon them conflicting claims or obligations.

There is also a question as to the extent, and potential indeterminacy, of liability. In the case of a medical practitioner, the range of people who might foreseeably (in the sense earlier mentioned) suffer some kind of harm, as a consequence of careless diagnosis or treatment of a patient, is extensive.

The statutory scheme that formed the background to the activities of the present respondents was, relevantly, a scheme for the protection of children. It required the respondents to treat the interests of the children as paramount. Their professional or statutory responsibilities involved investigating and reporting upon, allegations that the children had suffered, and were under threat of, serious harm. It would be inconsistent with the proper and effective discharge of those responsibilities that they should be subjected to a legal duty, breach of which would sound in damages, to take care to protect persons who were suspected of being the sources of that harm. The duty for which the appellants contend cannot be reconciled satisfactorily, either with the nature of the functions being exercised by the respondents, or with their statutory obligation to treat the interests of the children as paramount. As to the former, the functions of examination, and reporting, require, for their effective discharge, an investigation into the facts without apprehension as to possible adverse consequences for people in the position of the appellants or legal liability to such persons. As to the latter, the interests of the children, and those suspected of causing their harm, are diverse, and irreconcilable. That they are irreconcilable is evident when regard is had to the case in which examination of a child alleged to be a victim of abuse does not allow the examiner to form a definite opinion about whether the child has been abused, only a suspicion that it may have happened. The interests of the child, in such a case, would favour reporting that the suspicion of abuse has not been dispelled; the interests of a person suspected of the abuse would be to the opposite effect.

(emphasis added).

33 Sullivan v Moody was considered by the High Court in Tame v New South Wales.[28] In describing the facts in Tame, Gleeson CJ said:[29]

As to the first reason, the case seems to me to be governed by the same principles as resulted in the denial by this Court of the existence of a duty of care in Sullivan v Moody.

In the performance of his duties, Acting Sergeant Beardsley was completing an official report into the circumstances of a motor traffic accident. In the ordinary course, the report would be used in making a decision as to whether charges should be laid against anybody involved in the accident. The two people involved were Mr Lavender and Mrs Tame. Copies of the report would also be available, on request, and for a fee, to third parties, such as litigants, their solicitors and insurers. Primarily, however, this was an official police report of the incident, and of the result of police observations, inquiries and tests.

The primary duty of a police officer filling out such a report is to make available to his or her superiors, honestly and frankly, the results of the observations, inquiries and tests that were made. It would be inconsistent with such a duty to require the police officer to take care to protect from emotional disturbance and possible psychiatric illness a person whose conduct was the subject of investigation and report.

Not only was there no such relationship between Acting Sergeant Beardsley and Mrs Tame as would make it reasonable to require that he should act in contemplation of the danger of psychiatric injury to her; the relationship between them was inconsistent with such a requirement.

34 Gummow and Kirby JJ expressed the issue as follows:[30]

It is unlikely that an investigating police officer owes a duty of care to a person whose conduct is under investigation. Such a duty would appear to be inconsistent with the police officer's duty, ultimately based in the statutory framework and anterior common law by which the relevant police service is established and maintained, fully to investigate the conduct in question.

Police officers investigating possible contraventions of the law do not owe a common law duty to take reasonable care to prevent psychiatric injury to those whose conduct they are investigating. Their duties lie elsewhere and to find a duty of care in those whom they investigate would conflict with those other duties.

36 Again, as was said by McHugh J in D'Orta-Ekenaike (to which I have already referred),[32] persons who institute prosecutions owe no actionable duty to a defendant to take reasonable care in launching the prosecution. People who institute prosecutions can only be sued when they act maliciously (see specifically the elements of the torts of malicious prosecution or misfeasance in public office).

37 In resisting the second, third, fourth and fifth defendants' applications for summary judgment, the plaintiff placed extensive reliance upon the decisions of Zalewski v Turcarolo[33] and State of Victoria v Richards.[34]

38 Zalewski was a decision involving police officers who fired at a plaintiff who was refusing to give up a shotgun. The plaintiff succeeded at trial against the defendants. The defendants' appeal to the Appeal Division of this Court failed.

39 Richards was an appeal by the State of Victoria and certain police officers against a decision refusing their application for summary judgment in a proceeding where the plaintiff claimed damages for personal injuries arising out of being an innocent bystander to an incident in which the police had used capsicum spray while arresting a suspect inside a small shop. The Court of Appeal dismissed the appeal, holding that the defendants had not demonstrated that the duties of care pleaded by the plaintiff were inconsistent with their duty to apprehend the relevant offender. In his judgment in Richards, Redlich JA[35] described Zalewski in the following terms:[36]

Another case involving the imposition of a duty of care to avoid injury to others during police operations is the decision of the Appeal Division of this Court in Zalewski v Turcarolo. Police were there found to owe a duty of care when, in a siege type situation, they broke into a room with weapons drawn and then discharged those weapons. The reasons for judgment of Hansen J and Brooking J contain references to numerous authorities which show that police officers may be liable for the negligent discharge of their responsibilities in the course of operational duties.

In Zalewski, the police sought to invoke an immunity of the kind described in the advice of Lord Keith in Hill. The factors so influential in Hill were examined by Hansen J who referred to the consideration that "in some instances the imposition of liability may lead to the exercise of a function being carried on in a detrimentally defensive frame of mind" and that such a duty might interfere with the ability of the police to make decisions of "policy and discretion" about matters such as the "deployment of resources".

Zalewski was concerned with whether an "immunity" from a duty of care ought arise, rather than the existence of a duty. Hansen J, with whom Brooking and Phillips JJ agreed, considered the circumstances distinguishable from those in Hill where the police sought a blanket immunity whenever police officers investigate a complaint and make decisions which they consider appropriate. The appellants in the present case, in effect, advance the same contention. Hansen J noted that that which was initially "an attempt to state the immunity in abstract terms is in reality an immunity to be judged on the facts of the particular case". His Honour concluded that he would not be prepared to recognise an immunity where injuries arise from "specifically identified antecedent negligence ... by a particular police officer". Hansen J observed that on the facts the police officer "did not act in accordance with his training and instructions" and was therefore beyond the immunity sought.

40 The present case is very different from the cases in Zalewski and Richards. 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.

41 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.[37] A duty of care to investigate is not owed by police officers primarily because the imposition of such a duty would be inconsistent with the performance of a police officer's public duty to enforce the criminal law, which requires them to exercise discretion in prioritising the use of investigative resources in the public interest.[38] So it must also be in relation to the investigation of a suspect or person of interest. The same process of reasoning that denies a victim or potential victim a duty of care equally denies a duty in relation to an alleged perpetrator.

42 Whilst the authorities in this area allow for the possibility of a duty of care existing in relation to the investigation of actual or threatened criminal conduct in "exceptional circumstances", neither counsel referred me to any cases where either exceptional circumstances have been held to exist or such a duty has been found. Moreover, one might have thought that the cases of Hill v Chief Constable of West Yorkshire[39] and Brooks v Commissioner of Police of the Metropolis[40] may have involved exceptional circumstances (at least so far as victims or potential victims might be concerned). In Hill, the claim was that the police conducted their investigations negligently, which resulted in their failure to apprehend a serial killer before he murdered the daughter of the plaintiff. No relevant duty was held to be owed in that case. Brooks was a case where the House of Lords had to deal with a claim brought against the police by the surviving victim of a racist attack. A committee of inquiry had "exposed a litany of derelictions of duty and failures in the police investigations". Notwithstanding this matter, the House of Lords unanimously declared that no duty of care was owed to the victim.

43 The circumstances of the present case as pleaded by the plaintiff, when compared to the circumstances in Hill and Brooks and the other authorities in this area, are not in any relevant sense exceptional. Further, the plaintiff in the present case has not pleaded (and did not suggest) any circumstances that might be exceptional so as to give rise to the second, third, fourth or fifth defendants owing the duties of care pleaded against them. In any event (and whether or not exceptional circumstances is a relevant concept), when one analyses the salient features in respect of this case,[41] such as legal policy, coherence of the law and conformity with other duties and obligations (notwithstanding what is capable of being said about foreseeability, degree of harm and vulnerability), one arrives at the conclusion that the duties alleged by the plaintiff do not exist.

44 For the reasons given above, there will be summary judgment in favour of the second, third, fourth and fifth defendants in relation to the claims made against them that are based upon the allegation that they owed duties of care to ensure that the investigation of the murder charges and the laying of the murder charges was undertaken in a proper and professional manner and with reasonable skill and care.

45 This leaves the plea of a duty of care to ensure that the publicising of the laying of the murder charges was undertaken in a proper and professional manner and with reasonable skill and care. In my view, the difficulty for the plaintiff here is the issue of coherence. As in Sullivan v Moody, one immediately sees an intersection with the law of defamation. The Court dealt with this issue in Sullivan v Moody in the following terms:[42]

The core of the complaint by each appellant is that he was injured as a result of what he, and others, were told. At once, then, it can be seen that there is an intersection with the law of defamation which resolves the competing interests of the parties through well-developed principles about privilege and the like. To apply the law of negligence in the present case would resolve that competition on an altogether different basis. It would allow recovery of damages for publishing statements to the discredit of a person where the law of defamation would not.[43]

46 Consistently with what was said by the High Court in Sullivan v Moody,[44] none of the defendants owed the plaintiff a duty of care in relation to the publicising of the laying of the murder charges. Any complaint the plaintiff had in relation to that issue would fall to be determined by reference to the law of defamation.

47 For these reasons, there will be summary judgment for the second, third, fourth and fifth defendants (and consequently for the sixth defendant) in relation to the causes of action pleaded in negligence. The duty of care alleged against the second, third, fourth and fifth defendants[45] does not exist.

48 The plea of false imprisonment is not a model of clarity. Nevertheless, the deficiencies in the pleading are not a basis for the granting of summary judgment against the plaintiff.[46]

49 While it is not entirely clear from the amended statement of claim against whom the plaintiff wishes to maintain a claim for false imprisonment, I will consider the cause of action in relation to all defendants. That said, there is no allegation in the statement of claim that any of the defendants in fact imprisoned the plaintiff. Further, in order to establish the cause of action of false imprisonment against any particular defendant, the plaintiff must establish at least that the defendant must have intended to imprison, confine or restrain the plaintiff. In my view, such an allegation in this case appears to be all but hopeless.

50 There are additional difficulties with the plaintiff's claim of false imprisonment. It is sufficient to mention only one of them. In R v Deputy Governor of Parkhurst Prison; ex parte Hague,[47] the House of Lords had to consider a claim for false imprisonment made by a prisoner already serving a sentence. The House of Lords had to consider whether there were any circumstances in which a convicted prisoner committed to prison could sue the prison authorities for damages for false imprisonment. Their lordships concluded that a prisoner lawfully confined to prison did not have "residual liberty" that could be protected by private law remedies.[48] Further, it was held that the alteration of a prisoner's conditions deprives that prisoner of no liberty, because he has none already. So analysed, the House of Lords held that a prisoner with no liberty to be in any place other than where the prison regime permits, has no liberty capable of deprivation so as to constitute the tort of false imprisonment.[49] Lord Jauncey of Tullichettle expressed the matter as follows:[50]

He [the prisoner] is lawfully committed to a prison and while there is subject to the Prison Act 1952 and the Prison Rules 1964. His whole life is regulated by the regime. He has no freedom to do what he wants, when he wants. His liberty to do anything is governed by the prison regime. Placing Weldon in a strip cell and segregating Hague altered the conditions under which they were detained but did not deprive them of any liberty which they had not already lost when initially confined.[51]

51 For these reasons, there will be summary judgment in favour of the defendants in relation to the claim of false imprisonment.

The claim against the third and sixth defendant for continuing to maintain the plaintiff was a person of interest

52 The plaintiff's final claim is a claim that the third defendant (on behalf of the sixth defendant) has wrongfully continued to maintain that the plaintiff is a person of interest in the investigation of the murders - notwithstanding the withdrawal of the murder charges and the lack of any evidentiary basis connecting the plaintiff with those murders. This claim is manifestly hopeless. For the reasons I have already given in relation to the third component of the duty of care alleged against the second to fifth defendants, this claim cannot succeed. Neither the third nor sixth defendant owe the plaintiff any relevant duty in relation to it. Further, if there is any cause of action in relation to this complaint, then it is a cause of action in defamation. On this issue, the judgment of McHugh J in D'Orta-Ekenaike (to which I have already referred) bears repeating:[52]

... [A]bsent a contract, auditors owe no general duty of care to investors even though they can reasonably foresee that negligent auditing or reporting may cause damage to those investors. Journalists and authors do not owe a legally enforceable duty to take reasonable care not to injure a person's reputation or financial position by publishing careless statements. Journalistic codes impose duties of care and ethics on journalists in respect of their writings but a journalist owes no generally enforceable duty of care even in cases where his or her carelessness causes immense harm to an individual. Unless a statement is defamatory as well as careless, the journalist or author incurs no liability. Even if the statement is defamatory and careless, it may not be actionable. The common law and statute provide many defences for statements that are defamatory and careless.

But it is not merely auditors, accountants, journalists and authors who are immune from liability for negligent statements causing damage to individuals. Absent a contractual or fiduciary relationship, any person who makes a negligent statement causing damage owes no actionable duty of care to other persons unless the statement was made in circumstances meeting the conditions formulated by this Court in San Sebastian Pty Ltd v The Minister and other cases. ...

53 Finally, I should say that, in respect of the claims against the second, third, fourth and fifth defendants that I have found do not have a real prospect of success, I have considered whether under s 64 of the Civil Procedure Act I should nevertheless order those claims to proceed to trial. However, the short answer to this point is that, in respect of each of these claims, I am neither satisfied that it is in the interests of justice so to do, nor that the relevant dispute is of such a nature that only a full hearing on the merits is appropriate.

54 The application for summary judgment on behalf of the first defendant will be refused. There will be summary judgment for the second, third, fourth and fifth defendants against the plaintiff. The application for summary judgment on behalf of the sixth defendant will be allowed in relation to the causes of action relating to the second, third, fourth and fifth defendants, but not the first defendant. There will be orders striking out those paragraphs of the statement of claim relating to the causes of action pleaded against the second, third, fourth and fifth defendants. I will hear the parties on the appropriate form of order and any question of costs.

[1] Section 23(1)(b) of the Crown Proceedings Act relevantly provides:

"[T]he Crown shall be liable for the torts of any servant or agent of the Crown or independent contractor employed by the Crown as nearly as possible in the same manner as a subject is liable for the torts of his servant or agent or of an independent contractor employed by him".

[2] Subsections (1) and (2) of s 123 of the Police Regulation Act relevantly provide:

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

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

[6] Defendants' solicitor's email sent 4 April 2013 at 15:01.

[7] [2011] VSC 222, [18].

[9] Gleeson CJ, Gummow, Hayne and Heydon JJ.

[10] [2005] HCA 12; (2005) 223 CLR 1, 18-19 [39] (citations omitted).

[11] [2005] HCA 12; (2005) 223, CLR 1, 36 [99] (citations omitted).

[12] Commonwealth of Australia v Griffiths [2007] NSWCA 370; (2007) 70 NSWLR 268, 278 [43].

[15] [2007] NSWCA 370; (2007) 70 NSWLR 268.

[17] With whom Mason P and Young CJ in Eq. agreed.

[18] [2007] NSWCA 370; (2007) 70 NSWLR 268, 288 [92].

[19] [2007] VSC 527; (2007) 18 VR 98.

[20] See the judgment of Cavanough J in MM&R Pty Ltd v Grills & Ors [2007] VSC 528 (delivered on the same day as the judgment in Francis v Bunnett), [34]-[35] and Goddard Elliott v Fritsch [2012] VSC 87, [800] (Bell J).

[21] See generally, Munster v Lamb (1883) 11 QBD 588, 604-5; Watson v McEwan [1905] UKHL 1; [1905] AC 480, 486; and Commonwealth of Australia v Griffiths [2007] NSWCA 370; (2007) 70 NSWLR 268, 278 [43].

[23] Cf Commonwealth of Australia v Griffiths [2007] NSWCA 370; (2007) 70 NSWLR 268, 288 [92].

[24] As to the changing bases upon which advocates' immunity has been founded, see generally Rondel v Worsley [1969] 1 AC 191; Saif Ali v Sydney Mitchell & Co [1980] AC 198; Giannarelli v Wraith [1988] HCA 52; (1988) 165 CLR 543; and D'Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12; (2005) 223 CLR 1. See further, s 64 of the Civil Procedure Act.

[25] (2001) 207 CLR 562.

[27] Ibid 581-2 [55]-[62] (citations omitted).

[28] [2002] HCA 35; (2002) 211 CLR 317.

[29] Ibid 335 [24]-[27] (citations omitted).

[30] Ibid 396 [231] (citations omitted).

[32] [2005] HCA 12; (2005) 223 CLR 1, 36 [99].

[33] [1995] VicRp 76; [1995] 2 VR 562.

[34] [2010] VSCA 113; (2010) 27 VR 343.

[35] With whom Nettle JA and Hansen AJA agreed.

[36] [2010] VSCA 113; (2010) 27 VR 343, 349-350 [22]-[24] (citations omitted).

[37] Cf Sullivan v Moody (2001) 207 CLR 562; Tame v New South Wales [2002] HCA 35; (2002) 211 CLR 317; Slaveski v State of Victoria [2010] VSC 441, [345], [347] and [2103] (Kyrou J); Hunter Area Health Service v Presland [2005] NSWCA 33; (2005) 63 NSWLR 22, 112[344] (Santow JA); Hill v Chief Constable of West Yorkshire [1989] AC 53; Brooks v Commissioner of Police of the Metropolis [2005] UKHL 24; [2005] 1 WLR 1495 and Van Colle v Chief Constable of Hertfordshire Police [2008] UKHL 50; [2009] 1 AC 225.

[38] Cf Slaveski v State of Victoria [2010] VSC 441, [2103].

[40] [2005] UKHL 24; [2005] 1 WLR 1495.

[41] Cf State of Victoria v Richards [2010] VSCA 113; (2010) 27 VR 343, 351[30] (Redlich JA).

[42] (2001) 207 CLR 562, 581 [54].

[43] See further, D'Orta-Ekenaike v Victoria Legal Aid & Anor [2005] HCA 12; (2005) 223 CLR 1, 35 [98]-[99] (McHugh J).

[44] And what was also said by McHugh J in D'Orta-Ekenaike at [98]-[99].

[45] A duty of care to ensure that the investigation and the subsequent laying of charges and the publicising thereof was undertaken in a proper and professional manner and with reasonable skill and care.

[46] Manderson M&F Consulting v Incitec Pivot Limited [2011] VSCA 444 [32] (Redlich JA and Judd AJA).

[51] See further, R (Munjaz) v Mersey Care NHS Trust [2005] UKHL 58; [2006] 2 AC 148, 195.

[52] D'Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12; (2005) 223 CLR 1, 35 [98]-[99] (citations omitted).