QUINTANO & ORS v THE STATE OF NEW SOUTH WALES & ANOR [2002] NSWSC 766 | Case summary

[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". 6 Mr E White of Counsel appeared for the plaintiffs before the Master. Mr Killalea of Counsel appeared for the plaintiffs/appellants before me and Mr D Cowan, who had appeared below, appeared for the defendants/respondents 7 The learned Master approached the case before her as essentially a matter of law, the defendants seeking to have the proceedings dismissed on the grounds that there was no cause of action in negligence available in respect of police investigations because, first, there is no duty of care and second, police investigations attract common law immunity for reasons of public policy. Importantly, whilst submitting that the action of the police did not amount to an investigation, the concession was made for the plaintiffs that if it did, the defendants' motion before the Master must succeed (see paragraphs [26] and [35]). 8 The first matter the subject of argument in the appeal before me was the matter of the concession to which I have just referred. It was starkly stated from the bar table by counsel for the appellants that the concession should not have been made. That any such submission was going to be advanced was not notified to the respondents. That the concession in fact made before the learned Master should not have been made, was not discretely embraced by any ground of appeal. 9 Counsel for the appellant referred to the judgment of the High Court in Port Jackson Stevedoring Pty Ltd v Salmond & Spraggon (Aust) Pty Ltd (1977) 139 CLR 231. At 241 Barwick CJ said: "Suffice it to say it should only be in the clearest case and for the most cogent reasons that a party who has conceded matter at trial should be allowed to make the validity of what has been conceded the basis for overturning the result of the trial". That statement was made by the Chief Justice at the conclusion of dealing with a contentious matter of the status of concessions made at trial and before the intermediate appellate court with which his Honour, in the end, did not have to deal in view of the result to which he had come on the substance of the appeal. As a matter of principle however Barwick CJ's statement is clearly correct. I do not quite see how it aids the appellants however. I add that I do not see what comfort the appellants can attain from the statements made by Dixon J in Burston v Melbourne and Metropolitan Tramways Board (1948) 78 CLR 143 at 167.2. There his Honour said: "But I perhaps should add that the question whether the failure of counsel to raise a contention at the trial precludes an application for a new trial is not in my opinion to be determined as an abstract proposition of law. The court's jurisdiction to order a new trial depends upon the demands of justice. Often it would be unjust to set aside a verdict for a reason which but for the default of the party moving would never have existed. What is done and omitted at the trial is an important consideration to be weighed in determining a new trial application, but in the absence of a specific enactment or rule, it affects the exercise of discretion but does not amount always to a positive bar. There is not a rigid rule of law or practice". 10 The appellants contended in this matter the following factors are relevant in considering whether the appeal might be allowed "in the face" of counsel's concession below. First, that there is no prejudice to the respondents. This arises on the basis that the matter conceded may be tested on the material before the court and in the circumstances where the appellants do not seek that further evidence be put before the court for the consideration of it as to, I assume, the making of the concession. Secondly, the appeal is from the determination of summary judgment and not from a trial (this is clearly so). Thirdly, the appellants claim is against a government authority which, "without disparaging the maintenance of the public purse" is not prejudiced by lack of resources in having unnecessarily been brought to the appeal proceedings. Fourthly, the matter before the Master raised matters of significant public importance as to the immunity of the police force from civil liability in circumstances which would, prima facie, attract civil liability in individuals not members of the police force. 11 It is the first proposition that in my view brings about the downfall of the appellants in relation to the "concession on point". The materials before this court are the materials that were before the Master. The Master, correctly, in my view came to the conclusion that on the averment of facts as contained in the plaintiffs' pleading, the actions taken by the second defendant formed part of an investigation. No other rational view is available. Furthermore, as Master Harrison appropriately remarked (paragraph [36]), the plaintiffs themselves in the pleading under challenge pleaded negligence of the second defendant, inter alia, by reference to sub-particular (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". 12 The appellants cannot be heard to complain about the part played by a concession, an element of which related to the conduct of the defendants being an investigation (in the sense that the concession should not have been made), when the plaintiffs rely upon investigations as a component part of their pleaded case. 13 It is hardly remarkable that the matter of the concession was significant in the context of the decision of the House of Lords in Hill v Chief Constable of West Yorkshire [1989] 1 AC 53 and the passage from the speech of Lord Keith of Kinkel at 63-4: "But in my opinion there is another reason why an action for damages in negligence should not lie against the police in circumstances such as those of the present case, and that is public policy. In Yuen Kun Yeu v Attorney-General of Hong Kong [1988] A.C. 175, 193, I expressed the view that the category of cases where the second stage of Lord Wilberforce's two stage test in Anns v Merton London Borough Council [1978] A.C. 728, 751-752 might fall to be applied was a limited one, one example of that category being Rondel v Worsley [1969] 1 A.C. 191. Application for that second stage is, however, capable of constituting a separate and independent ground for holding that the existence of liability in negligence should not be entertained. 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 an exercise of a function being carried in a detrimentally defensive frame of mind. The possibility of this happening in relation to the investigative operations of the police cannot be excluded. Further it would be reasonable to expect that if potential liability were to be imposed it would be not uncommon for actions to be raised against police forces on the ground that they had failed to catch some criminal as soon as they might have done, with the result that he went on to commit further crimes. While some such actions might involve allegations of a simple and straightforward type of failure-for example that a police officer negligently tripped and fell while pursuing a burglar-others would be likely to enter deeply into the general nature of a police investigation, as indeed the present action would seek to do. 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 in question, yet elaborate investigation of the facts might be necessary to ascertain whether or not 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 retraversed, not with the object of bringing any criminal to justice but to ascertain whether or not they had been competently conducted. I therefore consider that Glidewell L.J., in his judgment in the Court of Appeal [1988] Q.B. 60, 76 in the present case, was right to take the view that the police were immune from an action of this kind on grounds similar to those which in Rondel v Worsley [1969] 1 A.C. 191 were held to render a barrister immune from actions for negligence in his conduct of proceedings in court". 14 In the course of her judgment Master Harrison referred to the decision of the High Court in Sullivan v Moody (2001) 75 ALJR 1570. It is argued for the plaintiffs that the decision of the High Court (a joint judgment) does not expressly "endorse" the decision in Hill. 15 In Sullivan (at paragraph [57]) express reference is made to the House of Lords decision in Hill in the following terms: "In Hill v Chief Constable of West Yorkshire ( [1989] AC 53) , 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 ([1989] AC 53 at 63] 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". 16 Subsequently, the Court stated as follows (at [60]): "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". (emphasis added) 17 The emphasis on the word "ordinarily" above is that of the plaintiffs, it being argued, as I understand it, that this case would not fall within the "ordinary" situation and thus provides an exception even to the application of Hill's case. The grounds for the exception are first, that it was not an investigation - that is not available. Secondly (and this was considered by the Master in her judgment (at paragraph [40])) that the immunity ought not to apply since its purpose was to protect against potential conflicts for police in the performance of their duties in the investigation of crime and the facts pleaded disclose no such possible conflict. As to this latter basis, as the Master found in the light of the pleadings she was considering, that absence of conflict simply cannot be asserted. There could well be, as the Master remarked (paragraph [41]), a conflict between the father's and the mother's interests and she stated her 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, as the Master said, but also that of the first plaintiff's wife. 18 Furthermore, the comfort the plaintiffs seek to take from statements in the judgment of the High Court in Crimmins v Stevedoring Industry Finance Committee [1999] HCA 59; (1999-2000) 200 CLR 1 is not available. Reliance is placed on a statement of Gaudron J in the discrete circumstances of the two issues with which that Court was confronted. Her Honour said (paragraph 25): "It is not in issue that a statutory body, such as the Authority, may come under a common law duty of care both in relation to the exercise ( Caledonian Collieries Ltd v Speirs (1957) 97 CLR 202 at 220 per Dixon CJ, McTiernan, Kitto and Taylor JJ; Sutherland Shire Council v Heyman (1985) 157 CLR 424 at 436 per Gibbs CJ (Wilson J agreeing), 458 per Mason J, 484 per Brennan J, 501 per Deane J; Stovin v Wise [1996] AC 923 at 943-944 per Lord Hoffmann; Pyrenees Shire Council v Day (1998) 192 CLR 330 at 391-392 per Gummow J) and the failure to exercise ( Sutherland Shire Council v Heyman (1985) 157 CLR 424 at 443 per Gibbs CJ (Wilson J agreeing), 460-461 per Mason J, 479 per Brennan J, 501-502 per Deane J; Parramatta City Council v Lutz (1988) 12 NSWLR 293 at 302 per Kirby P, 328 per McHugh J; Pyrenees Shire Council v Day (1998) 192 CLR 330) its powers and functions. Liability will arise in negligence in relation to the failure to exercise a power or function only if there is, in the circumstances, a duty to act ( Sutherland Shire Council v Heyman (1985) 157 CLR 424 at 443-445 per Gibbs CJ (Wilson J agreeing), 460-461 per Mason J, 478 per Brennan J; Pyrenees Shire Council v Day (1998) 192 CLR 330 at 368-369 per McHugh J). What is in question is not a statutory duty of the kind enforceable by public law remedy. Rather, it is a duty called into existence by the common law by reason that the relationship between the statutory body and some member or members of the public is such as to give rise to a duty to take some positive step or steps to avoid a foreseeable risk of harm to the person or persons concerned ( Pyrenees Shire Council v Day (1998) 192 CLR 330 at 368-369 per McHugh J. See also Sutherland Shire Council v Heyman (1985) 157 CLR 424 at 460-461 per Mason J and the cases there cited)". 19 Nothing, in my view, in what her Honour says, derogates from the availability of what I will call the Hill principle if it is not otherwise excluded by a decision of the High Court of Australia or by reference to the pleaded facts in the Amended Statement of Claim. Indeed, in my view her Honour, by her observations, implicitly, at least, acknowledges the availability of the Hill principle. 20 Further reliance is paced upon the statement of McHugh J (paragraph [84]) by reference to what is described as the policy/operational distinction which Mason J identified in Sutherland Shire Council v Heyman (1985) 157 CLR 424 at 469, quoted by his Honour. What the plaintiff has overlooked is the significance of the two express references to Hill in the judgments of McHugh and Kirby JJ in Crimmins. The first is in the judgment of McHugh J under the heading of "Other policy factors" as follows ([132]): "There are no other reasons to deny a duty of care. There are no considerations such as those that led the House of Lords to deny a duty of care in X (Minors) v Bedfordshire County Council ([1995] 2 AC 633 at 749-750 per Lord Browne-Wilkinson (Lords Jauncey of Tullichettle, Lane, Ackner and Nolan agreeing) - cutting across of a statutory scheme, the "delicacy" of the relationship between the parties or the fact that the officers of the Authority might adopt a "more cautious and defensive approach to their duties." Quite the opposite - in this case a recognition of a duty would likely have made the Authority more vigilant in its role. Nor do I think that the position of the Port Inspectors is analogous to the position of police officers ( Hill v Chief Constable of West Yorkshire [1989] AC 53; Elguzouli-Daf v Commissioner of Police of the Metropolis [1995] QB 335), given that the Authority was charged with responsibility for the safety of a specific class - the waterside workers under its direction". 21 Kirby J, in dealing with policy considerations raised in the course of argument before the High Court ([232]) said: "So far as it concerned suggested defaults on the part of inspectors, they would not be rendered liable in law for the independent performance of their statutory duties any more than police officers, who have been held generally exempt from such liability ( Hill v Chief Constable of West Yorkshire [1989] AC 53; cf Oceanic Crest Shipping Co v Pilbara Harbour Services Pty Ltd (1986) 160 CLR 626; Esanda Finance Corporation Ltd v Peat Marwick Hungerfords (1997) 188 CLR 241)". 22 Save for the decision of the High Court in Sullivan, the issues are cognate with those raised in the present appeal were dealt with by O'Keefe J in Wilson & Ors v State of NSW (2001) 53 NSWLR 407. With respect I adopt his Honour's analysis of the decisions of the High Court hitherto referred to and particularly that part of his Honour's judgment dealing with "police" from paragraphs 38-64, a case concerned with alleged breaches of duty by the Department of Community Services and the New South Wales Police Service in relation to investigations, initiation of care and prosecutorial proceedings and their continuation. 23 Nothing in the decision of the High Court (subsequent to that of O'Keefe J) in Sullivan derogates from the authority of his Honour's judgment in my view. 24 I was also referred to a decision of Smith J in Tahche v Abboud (No 1) [2002] VSC 36 (1 March 2002). His Honour was concerned with the plaintiffs in that action seeking leave to join several defendants (police officers), a joinder application which involved consideration of the relevant Victorian limitations legislation and, more relevantly, that the proposed pleadings against the proposed defendants did not disclose a cause of action in negligence. His Honour reviewed the authorities to which I have referred (paragraph [60] and following). His Honour however was concerned (and found, as I understand it) with an allegation of conduct not connected with the investigation of alleged crimes but rather concerned with whether a conviction should be reviewed of someone who was in gaol and was going to remain in gaol for at least ten years. His Honour came to the view that finding a duty of care would not expose police to indeterminate liability. The decision in Tahche is distinguishable and explicable by reference to the peculiar facts with which his Honour was concerned. 25 The final matter is the question as to what precisely the plaintiffs are pleading over and above an alleged breach of an alleged duty at common law (paragraph 18 of the Amended Statement of Claim) in terms of what is purported to be pleaded in paragraphs 23 to 26 which relate to the existence of the Police Rules 1977 and instructions under the "Police Regulation Act". Those paragraphs are in the following terms: [23] At all material times the New South Wales Police Department supplied to its members, including the second defendant, a manual of Rules and instructions, as made under the Police Regulation Act 1899 and more particularly known as the Police Rules 1977, (the Rules) and Instructions, (the Instructions). [24] The second defendant owes the plaintiffs a duty to use the Information supplied by the first plaintiff in accordance with the Rules and Instructions relevantly in force at that time. [25] It is alleged that the second defendant failed to adopt the procedures laid down in the Rules and Instructions relevantly regarding: a. Rule 55 and Instruction 2.55 regarding the use of confidential information. b. Instruction 31.24 regarding the identity of a suspect, the execution of warrants, and the exercise of caution. c. Instruction 63.02 regarding a police officer's responsibilities, and sub-rule 07 regarding general participation and sub-rule 28 in relation to the likelihood of absconding. [26] It is alleged that the second defendant 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. 26 There then follows the particulars of breaches of the Rules (which, I interpolate, includes particular (j) referred to above). I do not quite understand what the plaintiffs here are pleading. It is not expressly pleaded as a statutory duty and thus in some way to be tied in with what their Honours held in Crimmins' case. I accept the submissions for the defendant that essentially no duty of any kind pursuant to Rules, Instructions, Regulations or an Act is in fact pleaded in paragraph 23 and following. Even if it was, or could be understood to be, so pleaded, it could only be identified as going to how investigative procedures are to be carried out by the relevant authority and still fall within the Hill rules as far as I am concerned. If the Rules and Instructions referred to in the extracted part of the pleading have any effect, they are not such as to do any more than provide, as between a police officer and his Service vis-à-vis the public, guidance as to the performance of his professional role. If the situation were otherwise then the observations of Templeman LJ in Hill (at 64) might well be considered to be apposite. His Lordship was the only other member of the House of Lords who delivered a separate speech to that of Kinkel LJ and his lordship said: "The question for determination in this appeal is whether an action for damages is an appropriate vehicle for investigating the efficiency of a police force…The court would have to consider the conduct of each police officer, to decide whether the policeman failed to attain the standard of care of a hypothetical average policeman. The court would have to decide whether an inspector is to be condemned for failing to display the acumen of Sherlock Holmes and whether a constable is to be condemned for being as obtuse as Dr. Watson".

QUINTANO & ORS v THE STATE OF NEW SOUTH WALES & ANOR

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Judgment (18 paragraphs)

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Cases Cited (13)

Cited By (3)