(vii) in a United States jurisdiction, in delaying in responding to calls made by assault victims, the assurance that help was on its way having been given to them (Chambers-Castanes v King County 669 P2d 451 (1983); and see Zitter, "Liability for Failure of Police Response to Emergency Call", 39 ALR 4th 691).
98 What is noticeable in the case law of common law countries illustrated above (including that of England) is that it is accepted both that positive dangerous behaviour by police can still attract a duty of care and that, particularly in cases of omissions to act, the police may nonetheless have, or have assumed such a particular responsibility to take care of a person as to give rise to a "special relationship" with that person which attracts a duty of care to him or her: see e.g. Brooks v Commissioner of Police at [22] and [29]; Costello v Chief Constable of the Northumbria Police esp per May LJ; in US jurisdictions the "special relationship" exception is well recognised in a range of otherwise negligence exempt areas of police activity, see e.g. Eaton, above at s4; see also 57 Am Jur 2d, above, at s410 ff. What equally is notable is the varying significance given to the particular "operational" context in which the relationship giving rise to a duty of care is said to exist. Hence the ready imposition of a duty of care to persons in police custody: Hall v Whatmore, above; and the corresponding reluctance to impose such a duty in the context of the conduct of a criminal investigation D'Orta Ekenaike v Victoria Legal Aid at [101]-[102]; see also Cran v State of New South Wales, above; or in preventing a breach of the peace: Thompson v Vincent, above.
99 Australian case law, while generally conforming in its results with particularly comparable English decisions, has not unreservedly committed itself to the public policy immunity prevailing in England. The Court of Appeal of New South Wales on a number of occasions - and most recently in Cran v State of New South Wales - has adopted an approach to cases involving investigative conduct that reflects the immunity principle found in English decisions and particularly Hill's case. In Cran v State of New South Wales it was noted by Santow JA that in Tame's case, "there are strong dicta suggesting that the English authorities would be followed in Australia" (at [35]) and that "on present authority [in New South Wales] the greater public interest accorded unimpeded investigation by the police … preclude[d] any duty of care to the appellant" (at [63]) in that case where a prisoner claimed damages for post-traumatic stress disorder resulting from unnecessarily prolonged imprisonment because of delay in a police investigation.
100 In contrast, the 1995 decision of the Appeal Division of the Supreme Court of Victoria and the recent Tasmanian decision of Batchelor v State of Tasmania are more questioning of whether the immunity principle (at least in the scope given it) is part of Australian law.
101 It is, in my view, unnecessary in this matter to express a concluded view on whether, as in England, a special though not unqualified, immunity rule applies to police activities "in the investigation and suppression of crime": Costello's case at 563; or whether the duty of care question is to be answered by applying to police those principles now generally applied to public authorities in the discharge of their statutory and, if relevant, common law functions: see Graham Barclay Oysters Pty Ltd v Ryan. I am of this view because both binding and persuasive authority lead inevitably to the conclusion that this application must fail. However, I would respectfully suggest that more recent English authority demonstrating "reluctance to endorse the full breadth of what Hill v Chief Constable of West Yorkshire … has been thought to lay down" on the immunity of police: cf Brooks v Commissioner of Police, at [3], [6] and [28]; and the difficulty in providing criteria to mark out exceptions to that immunity: see e.g. Costello; Cowan v The Chief Constable for Avon & Somerset Constabulary [2001] EWCA Civ 1699; tell in favour of avoiding any special rule applicable to police, while still acknowledging that the police function can have distinctive characteristics and purposes which in many settings may exclude the concurrent operation of a duty of care at common law: cf Doe, 72 DLR 4th at 584-586.
102 Sullivan v Moody did not involve an allegation of negligence against police officers. Its concern was with whether medical practitioners and social workers who had examined children for evidence of sexual abuse by their fathers in the setting of a statutory regime containing provisions for the protection of children (including mandatory reporting to a government department of reasonable suspicion of child abuse), owed a duty of care to protect such fathers in the conduct of their examinations, investigations and reporting. It was held unanimously by the High Court that they did not. The plaintiff fathers had alleged that, as a result of negligent examination, diagnosis and reporting, they had suffered shock, distress, psychiatric injury and consequential personal and financial loss. Unsurprisingly, given the opinions expressed by the Court, Sullivan v Moody has been influential in this country in later decisions and judicial commentary on police liability for negligence in the conduct of investigations.
103 In rejecting the duty of care argued for in Sullivan v Moody the Court observed:
"55. … A duty of the kind alleged should not be found if that duty would not be compatible with other duties which the respondents owed.
56. 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.
57. 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.
…
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.
…
62. 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.
104 As I earlier noted, the judgment of Gummow and Kirby JJ in Tame relied on Sullivan at [60] above when expressing the view that it was unlikely that an investigating police officer would owe a duty of care to a person whose conduct was under investigation. Sullivan equally was invoked by Hayne J and Callinan J to the same end in Tame. In its apparent endorsement of Hill at [57] in the above quotation, Sullivan along with Hill and D'Orta-Ekenaike v Victoria Legal Aid above, have been treated by the New South Wales Court of Appeal as recognising that there is "an area in which it has been held that the public law duties of police are not consonant with recognition of a private law duty of care in favour of a particular member of the public": Thompson v Vincent at [153]-[154]. Again, as I have already noted, Tame and its debt to Sullivan and Hill were relied upon again by the New South Wales Court of Appeal in Cran v State of New South Wales in privileging the greater public interested accorded unimpeded police investigation over the interest of a person suffering foreseeable harm as a result of an allegedly careless omission in the conduct of an investigation.
105 In light of the above cases, and putting to one side the effect if any of the communications between Mr Myer and Mr Patching, there would be no arguable basis at all for any contention that AFP officers had a legal responsibility to warn any of the applicants either that they were under police surveillance or that they were exposing themselves to the foreseeable risk of the death penalty especially given the information acquired about the applicants in the ongoing AFP investigation. Having been prepared for whatever reason to engage in criminal activity, the applicants would properly be regarded as the authors of their own harm: cf Emanuele v Hedley [1998] FCA 709 esp in its reliance on State Rail Authority of New South Wales v Wiegold (1991) 25 NSWLR 500 at 517. And the police would have been entitled to have treated them as no more than subjects of an ongoing criminal investigation which fell clearly within the mandated functions of the AFP. Given the police's function in the matter, the applicants would not have been objects of rescue (as they would have been if there was a duty to warn).
106 Did the Myer-Patching communications, as I am assuming them to be, give such a different complexion to the relationship of AFP officers with Scott Rush and/or with the other applicants as to establish an arguable case that a duty such as is proposed by the applicants was owed to him or to them? In my view they did not.
107 First, it needs to be emphasised that the AFP was performing a statutorily mandated function, i.e. the provision of legal services in relation to laws of the Commonwealth. The particular subject of the inquiry - transnational crime and illicit drug trafficking - fell within areas of "special emphasis" in the direction given to the Commissioner by the Minister on 31 August 2004. As the 8 April 2004 letter to the INP reveals, the AFP was already possessed of a considerable body of information relating to past and likely prospective moves of (inter alia) the applicants. That letter indicated the AFP's purpose in making its request was that "[t]he AFP would like to identify the source of the drugs and the organisers (other than CHAN) in Australia". In other words there was a rational and proper police purpose for the making of the request. If there was to be a concurrent common law duty of care, this was the statutory and operational setting with which it had to be compatible: cf Graham Barclay Oysters Pty Ltd v Ryan at [147].
108 Secondly, there was no contact between the AFP and any of the applicants at all let alone contact that could lead Scott Rush or any of the others to reasonably believe or expect that the AFP had assumed some tutelary responsibility for him or her on which each could rely.
109 The Myer-Patching communications were directed to Lee Rush, not to the applicants generally or to Scott Rush in particular. I assume for the purposes of this application, that those communications led Lee Rush reasonably to believe that AFP officers would and did speak to Scott Rush at Sydney airport and because of this he did not go to Bali to save his son from committing any offence. I equally assume that Scott Rush was to have been the beneficiary of the police action Lee Rush believed had occurred and that the police failure to speak to him before his departure to Bali denied him the opportunity to abandon his participation in the trafficking operation given its predictable consequence. However, it is not the failure to warn as such that underpins the alleged negligence of the AFP officers. Rather it appears to be said that, having regard (a) to the alleged provision of information by or on behalf of Lee Rush to Patching about the apprehended criminal activity by Scott Rush, and (b) the request for assistance in relation to Scott Rush's departure from Sydney and the alleged representation that it had been given, the AFP's failure to act against this background may have authored a duty not to use the information in a way that put Scott Rush at risk of exposure to the death penalty in Indonesia. Hence it is said there is reasonable cause to believe that he may have a right to obtain relief from the relevant AFP officers in a negligence action in this Court.
110 It is unnecessary to enlarge here on the question whether this Court would have jurisdiction in any event to entertain such a suit in negligence in the Northern Territory against members of the AFP as Commonwealth officers. I simply adhere to the affirmative view I expressed on a similar question arising in the Australian Capital Territory in O'Neill v Mann (2000) 101 FCR 160. My reasoning in that case is "equally applicable to the Northern Territory": ALRC Report 92, The Judicial Power of the Commonwealth, 652 (2001).
111 The proposed negligence claim could well be described as a mutated form of breach of confidence action with the important difference that the duty said to be owed by the AFP officers was not owed to the supplier of the information, i.e. Lee Rush, but to the subject of it, i.e. Scott Rush. Furthermore the limitation on the use of that information proposed by the applicants is a narrow one. It is not that the AFP could not use the information supplied at all. Rather it could not be used in a way that would put Scott Rush at risk of exposure to the death penalty in Indonesia.
112 It need hardly be said that the disclosures of information about Scott Rush made by or on behalf of Lee Rush to AFP officers could not give rise to a duty of confidence to Lee Rush such as would prevent its use by the AFP in its investigations into drug trafficking into Australia. The disclosures related to apprehended serious criminal misconduct: cf Corrs Pavey Whiting & Byrne v Collector of Customs (1987) 14 FCR 434 esp at 456. And a court would not enforce any contractual or equitable obligation relating to such information, the effect of which would have been to obstruct the administration of the criminal law: A v Hayden (1984) 156 CLR 532.
113 Recasting the matter in terms of a duty of care owed to Scott Rush does not advance the matter. While it is said that the AFP had assumed a responsibility for Scott Rush in the circumstances surrounding the Myer/Lee Rush provision of information to AFP officers, the basis for such an assumption of responsibility has not been explained. Neither has any possible justification been advanced for there being a concurrent duty of care to Scott Rush alongside the public law duties of the AFP officers concerned.
114 There is a short answer to the alleged duty. Even if it be the case that AFP officers said they would act, or had acted, in a particular way towards Scott Rush at the airport and failed to do so, neither their representations and their failure to act nor the circumstances of the Myer-Patching conversations could give rise to a duty such as is alleged. The proposed duty would be inconsistent with the duty owed by the AFP to the public at large in the conduct of its investigations into the Bali drug trafficking operation: cf Sullivan v Moody at [60].
115 I have already indicated that the AFP officers concerned did not act in contravention of the AFP Act in deciding to, and in making, the 8 and 12 April 2005 communications to the INP. They were acting in performance of their functions under the AFP Act and consonantly with ministerial directions. The communications made had a proper and rational purpose in the furtherance of that police investigation. The proposed duty would only qualify and impede the conduct of the investigation embarked upon by the AFP. It would elevate the interests of Scott Rush over the public interest that the AFP was serving under its legislation to the extent that the two collided, as it did in the making of the request to the INP.
116 If, as the other applicants seem to suggest albeit faintly, a like duty was owed them its obvious effect would have been to compromise the investigation itself in an important respect. No assistance of the type sought could have been asked of the INP notwithstanding that the investigation involved transnational criminal activity and that the assistance in fact sought, as I have noted, was for a proper purpose in furtherance of the AFP's statutory functions.
117 In the cases of Scott Rush and of the other applicants the duty contended for cannot be reconciled with the nature and purpose of the functions being exercised by the AFP officers concerned, the discretions conferred on them in virtue of the task they were involved in, and the policy directive they were, apparently, implementing: cf Sullivan v Moody at [62]. Accordingly, to adopt Santow JA's observations in Cran v State of New South Wales at [63], the greater public interest accorded unimpeded investigation by the AFP precludes in this case any duty of care owed to Scott Rush or to the other applicants. Such is the current law in this country and the policy informing it, that the interests of the applicants were subordinated to the public interests served by the AFP in their conduct of the investigation in question.
118 I should add for the sake of completeness that I do not consider that it would make any difference to this conclusion if it was the case that the AFP officers concerned had knowingly misled Lee Rush for the purposes of securing the Bali investigation from potential compromise (given its purpose as revealed in the 8 April 2001 request) and the stage reached in the AFP's own investigations. Whatever the moral wrong to a caring parent that may have been involved in so doing, it could not have authored a duty of care such as has been proposed in this application.
119 No order for either identity discovery or information discovery will be made in relation to the intended cause of action based on the alleged possible negligence of AFP officers. That proceeding would have no prosects of success.