Quintano & 2 Ors v State of NSW & Anor

Luke Robert Quintano (Second Plaintiff)

PARTIES : Ashlee Marie Quintano (Third Plaintiff)

State of New South Wales (First Defendant)

Richard Adams (Second Defendant) JUDGMENT OF : Master Harrison

Mr E White (Plaintiffs) COUNSEL : Mr D Cowan (Defendants) SOLICITORS : Crown Solicitor (Defendants) CATCHWORDS : Dismiss proceedings - whether police can be sued for negligence in LEGISLATION CITED : Supreme Court Rules - Part 13 r 5 & Part 15 r 26 Agar v Hyde (2000) 201 CLR 552; [2000] GCA 41 Air Services Australia v Zarb (NSWCA unreported, 26 August 1998) Dey v Victorian Railways Commissioners (1949) 78 CLR 62 General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 CASES CITED : Webster & Anor v Lampard (1993) 177 CLR 598 Hill v Chief Constable of West Yorkshire [1989] AC 53; [1988] 2 All ER 238 Elguzouli-Daf v Commisioner of Police; McBrearty v Ministery of Defence [1995] QB 335; [1995] 1 All ER 833 Wilson v State of New South Wales [2001] NSWSC 869 Sullivan v Moody 920010 183 ALR 404; (2001) 75 ALJR 1570 DECISION : (1) The plaintiffs' statement of claim is dismissed; (2) The plaintiffs' are to pay the defendants' costs.

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

20194/1999 - STEPHEN LAWRENCE QUINTANO & 2 ORS v THE STATE OF NEW SOUTH WALES & ANOR

JUDGMENT (Dismiss proceedings; whether police can be sued for negligence in the course of an investigation) 1 MASTER: By notice of motion filed 8 January 2002 the defendants seek an order that the proceedings be dismissed pursuant to Part 15 r 26 or Part 13 r 5 of the Supreme Court Rules (SCR) or alternatively, an order that the amended statement of claim be struck out. The first plaintiff is Stephen Lawrence Quintano. The first plaintiff is the father of the second and third plaintiffs. The second plaintiff is Luke Robert Quintano, born on 4 April 1978. The third plaintiff is Ashlee Marie Quintano, born on 23 March 1986 and an infant, who sues by her tutor and father, the first plaintiff.

2 The first defendant is the State of New South Wales. The second defendant is Richard Adams who at all material times was employed by the New South Wales Police and held the rank of Police Sergeant. The action arises out of a police investigation for the recovery of the children of the first plaintiff, namely, the second and third plaintiffs. 3 For the purposes of this application the pleadings have been taken at their highest. On 7 June 1986 the first plaintiff reported to Green Valley police station that his wife Leanne Quintano and the second and third plaintiffs were missing persons. On 12 June 1986 (five days later) the first plaintiff again contacted the Green Valley police station to provide further information (the information) regarding his wife and children. After further telephone inquiries through the offices of Telecom (as it was then known) the first plaintiff was put through to Kempsey police station, to whom he conveyed the same information over the phone. 4 That information was that on 4 June 1986, the first plaintiff's wife and children had left the first plaintiff's home without warning and with no indication as to where they had gone. The first plaintiff suspected that his wife had taken the second and third plaintiffs into a secret religious sect known as the "Traditional Catholics" (the sect). This suspicion was confirmed by the first plaintiff's mother in law, who advised the first plaintiff that her daughter had contacted her and said she had joined the sect and had taken her children away. On 6 June 1986 the first plaintiff's family doctor advised the first plaintiff that his wife's behaviour was extraordinary and that she should be psychologically assessed as soon as possible. The third plaintiff was less than 10 weeks old at the time she was taken away by her mother. 5 The first plaintiff informed the police that he reasonably believed that his wife and children were cohabiting with a woman called Veronica Smithers, a known member of the sect. Veronica Smithers had lived in a defacto relationship with Jim McNabb and they had two children together. In 1984, Jim McNabb applied for access orders over his children, which Veronica Smithers contested. In contesting the application, she inter alia led evidence of the practices of the sect, including the extreme discipline of children including starvation, beatings and colonic irrigation. Mr McNabb was granted access orders, which were breached by Ms Smithers, as a result of which Mr McNabb had not seen his children since shortly after the access orders were granted. It was later discovered that a warrant for the arrest of Veronica Smithers had previously been issued as a result of that breach. 7 The first plaintiff further informed the police that his wife's sister in law, Jane Cairns, had also been involved in the sect. Ms Cairns was married to, and had a son with, Michael Binkins. In 1985, Ms Cairns had taken their son to join the sect in England, and he was only returned following threats by Mr Binkins to travel to England to gain custody of his son. Mr Binkins had agreed on 12 June 1986 to immediately travel down from his home in Stanthorpe, Queensland to Kempsey police station to validate and support the first plaintiff's claims to Kempsey police. 8 The first plaintiff further provided information to the police that Veronica Smithers had recently changed her name to Veronica Keen and had obtained a Telecom phone connection in the Kempsey area, which was listed as a silent number. He informed the defendants that he and Mr Binkins would meet with representatives of Kempsey police as early as possible the following day, being 13 June 1986. 9 On 13 June 1986 the first plaintiff travelled from Sydney to Kempsey and Mr Binkins travelled overnight from Stanthorpe Queensland to Kempsey. The first plaintiff and Mr Binkins spoke to the second defendant at Kempsey police station at about 8am on 13 June 1986. 10 The plaintiffs allege that on 12 June 1986, the first and second defendants used the information supplied by the first plaintiff and ascertained the whereabouts of his wife and children as premises at a place known as Sherwood in the Kempsey region. They also obtained a contact phone number which the second defendant rang and inter alia alerted the recipient of the phone call that the police were aware of the location of the second and third plaintiffs (the action). 11 The plaintiffs allege that as a result of that action, Veronica Smithers and her two children, the first plaintiff's wife and the second and third plaintiffs left the premises. The second defendant advised the first plaintiff at about noon on 13 June 1986, having returned from the premises, that the premises were deserted. 12 On 18 June 1986 the first plaintiff attended the premises and located a toy green dragon, the property of the second plaintiff, and identified a hand written note located at the premises as having been written by the second plaintiff. 13 It was not until 19 October 1989 (some 16 months after the information was provided to the police) that the first plaintiff located and gained custody of the second and third plaintiffs. 14 The plaintiffs' cause of action against the defendants lies in negligence. The plaintiffs plead the existence of a duty of care in paragraph 14: "It is alleged that the first and second defendants owed the plaintiffs a duty of care to use the information supplied by the first plaintiff in a reasonable manner in any attempt to locate and take custody of the second and third plaintiffs." 15 The plaintiffs allege that as a result of the actions taken by the second defendant, the second defendant breached that duty of care and was guilty of negligence. The particulars of that negligence are pleaded in paragraph 18 of the amended statement of claim. Further, by reason of the conduct of the first and second defendants, the first plaintiff was prevented from locating and taking custody of the second and third plaintiffs until 19 October 1987. 16 In paragraph 24 the plaintiffs plead that the second defendant owed the plaintiffs a duty of care to use the information supplied by the first plaintiff in accordance with The Police Rules 1977 and Instructions. The plaintiffs allege that the second defendant failed to adopt the procedures laid down in the Rules and Instructions, and acted negligently in the performance of his duty whilst in the employ of the first defendant, in that he failed to act in accordance with the Rules and Instructions. The plaintiffs pleaded injury, loss and damage suffered by reason of the delay in locating and assuming custody of the second and third plaintiffs and seek exemplary damages.

The law on summary judgment 17 Part 15 r 26 provides: "(1) Where a pleading - (a) discloses no reasonable cause of action or defence or other case appropriate to the nature of the pleading; (b) has a tendency to cause prejudice, embarrassment or delay in the proceedings; or (c) is otherwise an abuse of the process of the Court, the Court may at any stage of the proceedings, on terms, order that the whole or any part of the pleading be struck out. (2) The Court may receive evidence on the hearing of an application for an order under subrule (1)." 18 Part 13 r 5 says: "(1) Where in any proceedings it appears to the Court that in relation to the proceedings generally or in relation to any claim for relief in the proceedings- (a) no reasonable cause of action is disclosed; (b) the proceedings are frivolous or vexatious; or (c) the proceedings are an abuse of the process of the Court, the Court may order that the proceedings be stayed or dismissed generally or in relation to any claim for relief in the proceedings." 19 In Agar v Hyde (2000) 201 CLR 552; [2000] HCA 41 the High Court held at 57 that:

"Ordinarily a party is not to be denied the opportunity to place his or her case before the court in the ordinary way, and after taking advantage of the usual interlocutory processes. The test to be applied has been expressed in various ways, but all of the verbal formulae which have been used are intended to describe a high degree of certainty about the ultimate outcome of the proceeding if it were allowed to go to trial in the ordinary way." 20 According to their Honours, this is because:

"It would be wrong to deny a plaintiff resort to the ordinary processes of a court on the basis of a prediction made at the outset of a proceeding if that prediction is to be made simply on a preponderance of probabilities" (at 58). 21 Similarly, in Air Services Australia v Zarb (NSWCA unreported, 26 August 1998) Rolfe AJA found it useful to remind himself of the highly demanding test imposed on a party seeking summary judgment. His Honour referred to Dey v Victorian Railways Commissioners (1949) 78 CLR 62; General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 and Webster & Anor v Lampard (1993) 177 CLR 598. I have reproduced some of the passages quoted in Zarb. 22 In General Steel Barwick CJ, who heard the application alone stated at 130: "Although I can agree with Latham CJ in the same case when he said that the defendant should be saved from the vexation of the continuance of useless and futile proceedings, in my opinion great care must be exercised to ensure that under the guise of achieving expeditious finality a plaintiff is not improperly deprived of his opportunity for the trial of his case by the appointed tribunal. On the other hand I do not think that the exercise of the jurisdiction should be reserved for those cases where argument is unnecessary to evoke the futility of the plaintiff's claim. Argument, perhaps even of an extensive kind, may be necessary to demonstrate that the case of the plaintiff is so clearly untenable that it cannot possibly succeed." 23 Barwick CJ also said at 129: "It is sufficient for me to say that these cases uniformly adhere to the view that the plaintiff ought not to be denied access to the customary tribunal which deals with actions of the kind he brings, unless his lack of cause of action - if that be the ground on which the Court is invited, as in this case, to exercise its powers of summary dismissal - is clearly demonstrated. The test to be applied has been variously expressed; 'so obviously untenable that it cannot possibly succeed'; 'manifestly groundless'; 'so manifestly faulty that it does not admit of argument'; 'discloses a case which the Court is satisfied cannot succeed'; 'under no possibility can there be a good cause of action'; 'be manifest that to allow them' (the pleadings) 'to stand would involve useless expense'." 24 In Webster Mason CJ, Deane and Dawson JJ reinforced the rigorous testing stating, at 602: "The power to order summary judgment must be exercised with 'exceptional caution' and 'should never be exercised unless it is clear that there is no real question to be tried."' 25 According to Rolfe AJA in Zarb at 15-16: "The demanding nature of the test is in no way lessened in circumstances where there are the potential for difficult factual and legal issues to arise. Rather, as the decision in Webster made clear, it is heightened: see also Wickstead & Ors v Browne (1992) 30 NSWLR 1 and Esanda Finance Corporation Limited v Peat Marwick Hungerfords (1997) 188 CLR 241." 26 The argument in the present case is essentially a matter of law. The defendant seeks to have the proceedings dismissed or the amended statement of claim struck out on the basis that there is no cause of action in negligence available in respect of police investigations because firstly, there is no duty of care owing, and secondly, police investigations attract a common law immunity for reasons of public policy. The plaintiff submitted that the action that the police took did not amount to an investigation. 27 The parties referred to the House of Lords decision in Hill v Chief Constable of West Yorkshire [1989] AC 53; [1988] 2 All ER 238 where it was held that there was no general duty of care owed by the police to individual members of the public to identify and apprehend a criminal. Further, the House of Lords held that as a matter of public policy the police were immune from actions of negligence in respect of their activities in the investigation and suppression of crime. Lord Keith of Kinkel observed, at 63: "Potential existence of such liability may in many instances be in the general public interest, as tending towards the observance of a higher standard of care in the carrying on of various different types of activity. I do not, however, consider that this can be said of police activities. The general sense of public duty which motivates police forces is unlikely to be appreciably reinforced by the imposition of such liability so far as concerns their function in the investigation and suppression of crime. From time to time they make mistakes in the exercise of that function, but it is not to be doubted that they apply their best endeavours to the performance of it. 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. The possibility of this happening in relation to the investigative operations of the police cannot be excluded."

28 His Lordship continued: "The manner of conduct of such an investigation must necessarily involve a variety of decisions to be made on matters of policy and discretion, for example as to which particular line of inquiry is most advantageously to be pursued and what is the most advantageous way to deploy the available resources. Many such decisions would not be regarded by the courts as appropriate to be called into question, yet elaborate investigation of the facts might be necessary to ascertain whether this was so. A great deal of police time, trouble and expense might be expected to have to be put into the preparation of the defence to the action and the attendance of witnesses at the trial. The result would be a significant diversion of police manpower and attention from their most important function, that of the suppression of crime. Closed investigations would require to be reopened and re-traversed, not with the object of bringing any criminal to justice but to ascertain whether or not they had been competently conducted." 29 In Elguzouli-Daf v Commissioner of Police; McBrearty v Ministry of Defence [1995] QB 335; [1995] 1 All ER 833 the analogy of Hill was said to be instructive. The English Court of Appeal applied the reasoning articulated in Hill and decided by way of analogy that the Crown Prosecution Service did not owe a general duty of care in the conduct of its prosecution of a defendant. In any event, the Crown Prosecution Service was also immune from actions in negligence by reason of public policy. In both Hill and Elguzouli-Daf the proceedings were summarily dismissed. 30 The issue was recently considered by O'Keefe J in Wilson v State of New South Wales [2001] NSWSC 869. That case involved a striking out application on a claim of negligence against the police. After consideration of the English authorities and their subsequent treatment in Australian courts, his Honour concluded that

"an action for negligence under the common law does not lie in respect of the exercise by police of their investigative functions on the basis that the investigations conducted were inadequate and that no action for negligence under the common law lies in respect of the performance of police prosecutorial functions, whether in the initiation of the prosecution, in its conduct or in respect of its continuance to the time of decision by a curial body." 31 More recently the High Court in Sullivan v Moody (2001) 183 ALR 404; (2001) 75 ALJR 1570 where the High Court held that a duty of care was not owed to an alleged perpetrator of sexual assaults by doctors and social workers who were engaged to investigate whether children had been the victims of such sexual assaults. They commented at para 53 that there were cases, such as the one before them, in which: "to find a duty of care would so cut across other legal principles as to impair their proper application and thus lead to the conclusion that there is no duty of care of the kind asserted." 32 The High Court considered Hill, in which it was noted 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 allocation of resources. The High Court commented at para 57 that "to subject those decisions to a common law duty of care, and to the kind of judicial scrutiny involved in an action of tort, was inappropriate." 33 The court also stated at para 60 that: "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 the 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." 34 Like Hill and Elguzouli-Daf, Wilson and Sullivan were summarily dismissed. 35 Counsel for the plaintiff submitted that the actions taken by the second defendant cannot be characterised as a police investigation, and sought to distinguish Hill. It was conceded that if the facts pleaded do amount to an investigation then the plaintiff must fail. It was argued that at the relevant time no crime had been committed or reported and hence there was no crime to investigate. The first plaintiff reported his wife and children as missing persons, made his own inquiries and passed on information to the police which, if properly used, would have led to the recovery of his children. According to the first plaintiff's counsel, the plaintiff had all the pieces of the jigsaw puzzle but one. The police had simply to collate a silent number with an address, and the plaintiffs submit that this does not amount to an investigation. 36 In any event the pleadings go further than the mere solving of a piece of a jigsaw puzzle. In paragraph 26 the plaintiff pleads the alleged negligence of the second defendant by his breaches of the Rules, including that he: "j. Failed to take a keen personal interest in the information and failed to zealously pursue investigations and maintain an interest in them until completed."

37 By the plaintiffs' own admission in the pleadings, the actions taken by the second defendant formed part of an investigation, and indeed the plaintiffs' allegation is that those investigations were not zealously pursued until completion. Even if I put this to one side, I am still of the view that the actions amounted to an investigation. 38 The term "investigation" is defined by the Macquarie Dictionary (3rd edition, reprinted 1998, The Macquarie Library Pty Ltd, Macquarie University) as "1. the act or process of investigating; 2. a searching inquiry in order to ascertain facts; a detailed or careful examination", and by the Oxford English Dictionary (2nd edition, 1989, Oxford University Press, Oxford) as "the action of investigating; the making of a search or inquiry; systematic examination; careful and minute research". 39 The fact that no crime had at the relevant time been committed or reported is of no consequence. Part of the function of police investigations is to determine whether in fact a crime has been committed. The fact that police commence an investigation only to conclude that there has been no offence committed does not bring that investigation outside the category of "investigation of crime". In order to collate the phone number with an address, the second defendant was required to make an inquiry with Telecom in order to ascertain facts. However, once the plaintiff reported his wife and children missing, the police had a choice of alternative actions, namely, they could have done nothing, they could have made the telephone call, they could have awaited the arrival of the plaintiff to attend the property and assessed the situation and/or executed a warrant. Even at that stage the police were called upon to exercise their discretion in choosing which alternative to adopt. In my view the actions undertaken by the second defendant are to be characterised as an investigation.

40 The plaintiffs submitted that the immunity ought not apply in the present case since its purpose was to protect against potential conflicts for police in the performance of their duties in the investigation and suppression of crime, and the present facts disclosed no such possible conflict. 41 There may have been a conflict between the father and the mother's interests. It is my view that to find a duty of care in this case would impose upon the police conflicting obligations by requiring them to have regard to the interests of the plaintiffs. The defendants had not only the interests of the plaintiffs to consider, but also those of the first plaintiff's wife. The authorities clearly establish that in the case of a police investigation, no duty of care exists and immunity arises by reason of public policy. It is my view that the cases clearly establish that the police do not owe a duty of care to the plaintiffs. As the police undertook an investigation, they have the benefit of immunity on the grounds of public policy. 42 For these reasons the plaintiffs' claim against the defendants is doomed to failure and the statement of claim should be dismissed. Costs are discretionary. Costs normally follow the event. The plaintiffs' are to pay the defendants' costs. 43 The court orders:

(1) The plaintiffs' statement of claim is dismissed.

(2) The plaintiffs' are to pay the defendants' costs. **********

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