State of New South Wales v Dargin [2019] NSWCA 47 | Case summary

Court of Appeal (NSW)|2019-01-29|Before: Basten JA, Leeming JA

Solicitors: Makinson d'Apice Lawyers (Applicant) Public Interest Advocacy Centre Ltd (Respondents) File Number(s): 2018/380092 Decision under appeal Court or tribunal: District Court of NSW Jurisdiction: Civil Date of Decision: 4 December 2018 Before: Acting Judge Curtis File Number(s): 2017/140382

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Judgment

BASTEN JA: I agree with Leeming JA.
LEEMING JA: The State of New South Wales seeks leave to appeal from the determination of a separate question. The question was formulated by the State, and heard and determined separately by the District Court at its request. The plaintiffs, Mr Travis Dargin and Ms Kristy Green, did not oppose that course, and another judge of that Court made directions for that to occur. In the absence of opposition his Honour made the necessary directions but he expressed concerns as to whether the question as framed was appropriate for determination. Those concerns have turned out to have been well founded.
The separate question was: "Whether (in the context of the Bail Act 2013 (NSW)) a bail compliance check can be lawfully conducted in the absence of court ordered bail enforcement order?" [sic].
By reserved judgment delivered on 4 December 2018, the primary judge ordered that there be "Judgment for the Plaintiff". When the matter was heard, both parties accepted that by "Judgment for the Plaintiff" the primary judge had intended to answer the question reserved for his determination negatively. No answer to that question would have resolved the whole of the proceedings, or even the whole of the proceedings insofar as they concerned the liability of the State to the plaintiffs.
The difficulties however are not so much with the form of the answer given by the primary judge, but the substance of the question formulated by the State. By the conclusion of the hearing of the appeal (which was heard concurrently with the State's application for leave to appeal), the State's position was that the question should have been answered "Inappropriate to answer". The State proposed a reformulated question and asked this Court to answer it. The respondents opposed the State's application to amend.
Enough has been said already to indicate that this is yet another example of litigation which has encountered delay and expense and complexity because the parties have departed from the usual course of litigation and sought to resolve what they regarded as a discrete question of law. In some circumstances the formulation of a separate question for determination can avoid delay and expense. But short cuts often produce long delays and increase the cost of litigation. The difficulties in the present case are acute, because (a) on any view the question is poorly framed, (b) there was and is a dispute as to the meaning of some of the terms in the question, and (c) notwithstanding the essentially factual nature of the controversy, the parties proceeded to have the question resolved without tendering any relevant evidence, or agreeing any facts. The result was a departure from the cautious approach which ought always to attend an attempt to fracture a trial.
It is as well to reiterate what was said by Kirby and Callinan JJ, with the agreement of Gaudron J, in Tepko Pty Ltd v Water Board (2001) 206 CLR 1; [2001] HCA 19 at [168]-[171], to which attention was most recently drawn in Mehmet v Carter [2018] NSWCA 305 at [8], [102] and [107], concerning the separate determination of issues in litigation. The passage includes the following aptly cautionary words: "The attractions of trials of issues rather than of cases in their totality, are often more chimerical than real. Common experience demonstrates that savings in time and expense are often illusory .... Single-issue trials should, in our opinion, only be embarked upon when their utility, economy, and fairness to the parties are beyond question."
Although the State, which proposed both the idea of a separate question and its concededly defective form, bears primary responsibility for the course taken, both sides compounded the risk of inutility by proceeding in a factual vacuum. This is not the first time there has been a departure from orthodox practice. In Attwells v Jackson Lalic Lawyers Pty Ltd (2016) 259 CLR 1; [2016] HCA 16 at [21], French CJ, Kiefel, Bell, Gageler and Keane JJ stated that: "If the procedure for determination of a separate question is to be useful, it is necessary for those managing the case at the stage when a question is posed for separate determination to ensure that the facts on which the question is to proceed are 'the facts ... which the [plaintiff] will seek to establish at trial.'"
In this Court, the State seeks to set aside the answer given by the primary judge, and for this Court to answer a different and rather more carefully worded series of questions. The proposed reformulated questions are a large improvement on that which was debated before and answered by the primary judge. However, the respondents seek to defend the answer given by the primary judge, and they oppose this Court considering any different question.
Accordingly, I turn to the procedural history of the litigation, in the light of which the meaning of the question and the way it came to be argued falls to be analysed.

The litigation commenced by Mr Dargin and Ms Green

The respondents sued the State as vicariously liable for the tortious conduct of police officers, in accordance with s 9B of the Law Reform (Vicarious Liability) Act 1983 (NSW). Many of the factual allegations were disputed. However, the State admitted the following: 1. On 9 May 2014, Mr Dargin was charged with offences of larceny and intentionally or recklessly damage property by fire/explosive, contrary to ss 117 and 195(1)(b) of the Crimes Act 1900 (NSW). 2. Between 9 May and 19 August 2014, Mr Dargin was on conditional bail including a condition that he must not be absent from his home between 8pm and 8am. 3. Between 10 May and 19 August 2014 police conducted "bail compliance checks" on or about 34 occasions as alleged in the statement of claim. By reference to particular COPS event numbers, the statement of claim gave a series of dates and approximate times (all late in the evening or early in the morning) in which identified officers checked whether Mr Dargin was present. The list commenced 10 May at 9.30pm and 10.55pm, 12 May at 10.50pm, 13 May at 10.19pm, 15 May at 1.15am, 15 May at 11.25pm, 16 May at 11.09pm. 4. On 13 June 2014, the Aboriginal Legal Service sent a facsimile to two police stations "on behalf of the first plaintiff purportedly withdrawing implied consent for Police to enter the Property". 5. The list of occasions for bail compliance checks contained no entries between 11 June 2014 and 20 July 2014, but thereafter contained 15 times in the late evening or early morning between 20 July and 19 August 2014. (Ironically, the only evidence which was tendered - the COPS record for 5 July 2014 - was not an occasion particularised in the pleading, although no objection was taken to the tender.) 6. The charges against Mr Dargin were withdrawn in February and March 2015.
The plaintiffs alleged, but the State did not admit, that Mr Dargin was present on each of the 34 occasions on which officers attended at his home.
There was no evidence of the states of mind of the police officers who performed the bail compliance checks. There was no evidence of whether there was any basis for thinking on all or any of the 34 occasions that Mr Dargin was not complying with the curfew.
The plaintiffs sued in trespass to land, on two bases. The first was that no enforcement condition had been imposed by a court pursuant to the Bail Act, such that each entry onto the premises amounted to a trespass. The second was that to the extent there was an implied licence to enter the property (which was denied), it did not extend to checks "in the manner and in the circumstances pleaded ... including banging loudly on the doors, windows and walls of the house on the property and shining lights into the house through its windows, frequently, in the middle of the night, and with a heavily pregnant woman and small child residing at the premises".
The State denied that allegation. To be clear, there has not been to date any attempt to prove or to refute those allegations, still less any finding that they occurred. However, it is readily seen that it is one thing for a landowner impliedly to permit a person to enter land and knock on the front door to make an inquiry; it is another to walk around the curtilage of a building making noise and shining lights in the middle of the night. There may well be circumstances where the former conduct is lawful, and the latter is tortious: see Halliday v Nevill (1984) 155 CLR 1 at 7-8; [1984] HCA 80 and Lincoln Hunt Australia Pty Ltd v Willesee (1986) 4 NSWLR 457 at 460E.
The plaintiffs also made allegations of intentional infliction of harm and misfeasance in public office, based on the knowledge by police officers of the absence of enforcement conditions in Mr Dargin's bail.
The plaintiffs sought compensatory damages for various forms of psychiatric injury, as well as aggravated and exemplary damages. No issues relating to relief have been determined.

The terms of the separate question posed by the State

There are two levels of difficulty with the question as framed by the State. I start with the infelicities which are merely superficial.
First, the sense of the qualifying words "in the context of the Bail Act 2013 (NSW)" is quite unclear, because the original grant of bail, and some of the conduct giving rise to the allegations, pre-dated the commencement of that Act.
The Bail Act 2013 commenced on 20 May 2014. Thus the original grant of bail, and the first seven times on which police officers entered onto the premises, predate the commencement of that statute. On and from 20 May 2014, the bail granted under the Bail Act 1978 was taken to have been granted under the Bail Act 2013: see Schedule 3, item 3(2). That does not detract from the proposition that the plaintiffs' causes of action in trespass, and such defence as the State might have, based on the first seven occasions, are to be determined in light of the Bail Act 1978. It was surely not intended to frame a question which did not address the first seven bail compliance checks. What then do the words "in the context of the Bail Act 2013 (NSW)" mean?
Secondly, the term "bail enforcement order" is imprecise, but presumably refers to an "enforcement condition" which may now be imposed by a court pursuant to s 30 of the Bail Act 2013 and which might formerly have been imposed pursuant to s 37AA of the Bail Act 1978 (NSW). Section 37AA was enacted in consequence of the decision in Lawson v Dunlevy [2012] NSWSC 48. The section refers to an "enforcement condition", which is defined to be "a bail condition that requires the person granted bail to comply, while at liberty on bail, with one or more specified kinds of police directions (given for the purpose of monitoring or enforcing compliance with the underlying bail condition)". There was and is a wide range of enforcement conditions, including many which have nothing to do with the facts in this litigation.
Section 30(4) of the 2013 statute imposes limits on the form enforcement conditions may take, as well as containing an illustrative example: "An enforcement condition is to specify: (a) the kinds of directions that may be given to the person while at liberty on bail, and (b) the circumstances in which each kind of direction may be given (in a manner that ensures that compliance with the condition is not unduly onerous), and (c) the underlying bail condition or conditions in connection with which each kind of direction may be given. Note. For example, an enforcement condition imposed in connection with an underlying bail condition that requires a person to refrain from consuming drugs or alcohol may require the person to undergo testing for drugs or alcohol as directed by a police officer and may include specifications as to when such directions may be given."
Difficulties of a different nature arise with the words "bail compliance check" in the question. Those words are defined in paragraph 14 of the further amended statement of claim as follows: "In the period from 10 May 2014 to 19 August 2014, police officers: a. physically entered onto the property; b. intended to so enter the property; c. entered the property for the purpose of directing the first plaintiff to present and/or respond to police, in order for police to monitor the first plaintiff's compliance with the curfew; and d. once on the property did in fact direct the first plaintiff to present and/or respond to police, in order for police to monitor the first plaintiff's compliance with the curfew, which was a process referred to by police officers as a 'bail compliance check'."
The State admitted in answer to that paragraph that between 10 May and 19 August 2014, "Police conducted bail compliance checks on the first plaintiff at the Property" (defence, paragraph 10).
Both pleadings thereafter refer, repeatedly, to "bail compliance checks". Those words when used in the separate question are apparently to be regarded as having the same meaning, even though that is not necessarily clear on the face of the record.
Orders should be clear on their face. The effect of a separate question and its answer should not require recourse to other documents, especially documents which may not be publicly available. The separate question in this case requires resort to the pleadings which define "bail compliance check" as a process involving intentional entry onto the property, with the intention of giving a direction to Mr Dargin, which direction was in fact given.
Of course, there are many possible ways in which bail may be granted conditionally, and many ways in which a police officer might seek to conduct such a check. The question determined by the primary judge must be understood to be confined to conditions involving a curfew, and a check involving the entry of police onto the land, during the hours to which the curfew is applicable, with a view to directing the person to present and/or respond to check that the curfew was being observed. There is a much more restrictive meaning than appears on the face of the question.
Further, there was a lively debate between the parties as to the meaning of the "direction" which was alleged in paragraphs 14(c) and (d), for which purpose police had entered onto the property, and which police had actually given once on the property. The State submitted that the word bore its ordinary English meaning, and included a request. The respondents invoked definitions from the Oxford and Macquarie Dictionaries which included an "authoritative instruction", and submitted "that the giving of 'authoritative instructions' may encompass a request by a police officer to 'present' on a curfew check". The submission continued: "To distinguish 'directing' or a 'direction' on whether the communication is posed as a question or a statement, or is delivered politely or not, would be to allow form to triumph over substance. It is given by a person in an authoritative position to the requestee and it causes a response, such as the person moving or acting in a particular way."
I shall return to this below. At least part of the point of the respondents' submission was their claim that the reformulated question which the State sought to have this Court answer for the first time on appeal departed from the meaning of "direction" which was picked up by the term "bail compliance check" in the question determined at first instance. For present purposes, one clear illustration of the inutility in answering the question framed by the State is that even in this Court the parties disagree as to its meaning.

The absence of any relevant evidence

As already noted, the matter proceeded before the primary judge without any substantial evidence. In particular, there was no evidence going to the states of mind of the police officers who performed the bail compliance checks. The facsimile which had been sent on 13 June 2014 withdrawing permission to enter onto the property was not in evidence. Despite the reference to COPS event numbers in the pleading, none of those records was in evidence.
At the conclusion of the hearing before the primary judge, senior counsel for the respondents tendered an extract from a COPS record. She did so to address a complaint about particulars. The document relevantly stated the following: "THE POI has bail conditions not be absent from [his residential address] between the hours of 2000 and 800. At 23:53hrs on 05/07/14 Police attended the address. The POI presented himself to the door upon the request of police and as such, bail was complied with."
But of the 34 occasions of entry onto their premises of which the plaintiffs complained, that which appears to have taken place late in the evening on 5 July 2014 was not one. Whether that is an oversight by either or both parties, and whether the COPS record of that occasion is representative of those occasions on which the plaintiffs sue, is unknown.

The reasons at first instance

The primary judge recorded that it was common ground that bail compliance checks conducted by the police upon Mr Dargin were not authorised by s 37AA of the Bail Act 1978 or s 30 of the Bail Act 2013. His Honour then recorded the State's submission that nonetheless, there was statutory power under other provisions of the Police Act 1990 (NSW), including s 6(1). That section refers in general terms to the "mission" and "functions" of the NSW Police Force. That seems to have been the principal submission based on statute to justify the entry onto land occupied by the plaintiffs. His Honour rejected that submission, and no reliance was placed on those provisions in this Court.
His Honour also addressed a submission that there was authority to enter the plaintiffs' land at common law. After referring to Johnson v Phillips [1975] 3 All ER 682 and Kuru v State of New South Wales (2008) 236 CLR 1; [2008] HCA 26, he concluded: "At common law a person with a legitimate purpose may enter upon the lands of a suburban dwelling house where the gate is unlocked and there is no indication by notice or otherwise that entry by visitors is forbidden. Such an entry is pursuant to an implied licence (Halliday v Nevill (1984) 155 CLR 1). The conduct of a bail compliance check without first obtaining an order pursuant to section 30 of the Bail Act 2013 is not a legitimate purpose. Conclusion and Ruling In the context of the Bail Act 2013 (NSW) a bail compliance check may not be lawfully conducted in the absence of a court ordered Bail Enforcement Order."

Consideration

The answer given by the primary judge cannot stand. There were two plaintiffs, not one, and neither was entitled to judgment based only on the matters raised by the question reserved for his Honour's determination. Putting to one side the erroneous limitation to the Bail Act 2013, there are plainly occasions when a police officer may lawfully enter onto private premises for the purpose of determining whether a bail condition is being complied with. One example is when an officer has reason to be believe that there is about to be non-compliance. That might be because there is evidence that the person has purchased an international airfare despite being subject to a condition that he or she remain in Australia and is about to leave home for the airport. Examples could readily be multiplied. In such a case, there is statutory authority to arrest the person, and that authority necessarily carries with it authority to enter onto the person's land. Section 77 of the Bail Act 2013 provides as follows: "77 Actions that may be taken to enforce bail requirements (1) A police officer who believes, on reasonable grounds, that a person has failed to comply with, or is about to fail to comply with, a bail acknowledgment or a bail condition, may: ... (e) arrest the person, without warrant, and take the person as soon as practicable before a court or authorised justice ..."
Section 50(1)(a) of the 1978 Act was in materially identical terms. The power to arrest the person without a warrant conferred by these sections necessarily carries with it power to enter onto the person's property. I did not understand that to be controversial when the appeal was heard.
Thus not only was the question posed for separate determination less than clear on its face, but it also elicited an answer which was capable of extending far beyond the facts in the case, including to circumstances in which there is undoubted power to enter onto a person's land.
The respondents accepted that there should be a grant of leave in order to correct the order "Judgment for the plaintiff" which had been made in their favour. However, they sought to maintain a negative answer to the question which had been answered. What has already been said suffices to demonstrate that the answer cannot be maintained unless in some way the question is narrowed or else its apparent generality is to be treated as qualified by the facts of this particular case.
The State's proposed reformulation attempted to do precisely that. After the lunchtime adjournment, the State embraced the proposition that the terms of the separate question were such that it was inappropriate to be answered. It proposed, by way of draft short minutes of order, a more precise question, which it invited this Court to answer. The Court was told that the new formulation was communicated to the respondents by an email at around 1.55pm. Unsurprisingly, senior counsel for the respondents stated that she was unable to respond to the reformulation. Accordingly, directions for a timetable of further submissions were made. Further submissions were supplied by the State on 4 February 2019, and by the respondents on 18 February 2019.
The State sought leave to reformulate the question as follows: "Where: (a) a person is on bail under the Bail Act 1978 or the Bail Act 2013 subject to a bail condition requiring him or her to be present on specified premises during specified hours; (b) those premises have no locked gate or notice forbidding access (generally or specifically) and neither the person on bail nor any other person has otherwise forbidden access to the premises (generally or specifically); (c) the person is not subject to an enforcement condition; and (d) a police officer does not have a belief on reasonable grounds as to whether the person has failed to comply with, or is about to fail to comply with, a bail condition, then: (i) Is there an implication in the Bail Act 1978 and the Bail Act 2013 that a police officer may enter the specified premises and proceed to the front door for the purpose of forming a reasonable belief as to whether the person is on the premises? (ii) Does the common law right to enter premises and proceed to the front door for legitimate purposes entitle a police officer to enter the specified premises and proceed to the front door for the purpose of ascertaining whether the person is on the premises? (iii) If the answer to (i) is "yes", may the occupier revoke that authority? (iv) If the answer to (ii) is "yes", may the occupier revoke that authority?"
That proposed reformulation goes far to address the defects in the question originally framed by the State and determined by the primary judge. However, it will not resolve all of the questions in this litigation. Nor will it even resolve all the questions in this litigation insofar as they concern the liability for the causes of action in trespass.
First, there is plainly a dispute between the parties as to the state of mind with which police entered onto the respondents' property. The reformulation proposed by the State exposes that dispute.
The State's defence does not allege that the police entered onto the property for the purpose of forming a reasonable belief as to whether a person subject to a bail condition is on the premises. Yet that is the premise of proposed questions (i) and (ii).
On the other hand, the amended statement of claim alleges that police entered onto the property for the purpose of directing Mr Dargin to "present and/or respond" to police, and that once on the property the police "did in fact direct [Mr Dargin] to present and/or respond to police" (amended statement of claim, paragraphs 14(c) and (d)). While the defence admits that the police conducted bail compliance checks (defence paragraph 10(a)), it seems that the State contends that the defence is not to be read as including an admission of that purpose and that that is what occurred.
Further, proposed reformulated questions (iii) and (iv) deal with the revocation of authority by the occupier. It was admitted that a letter was sent purporting to revoke any implied licence to enter onto the land. The letter itself was not in evidence. At one stage the State contended that because it was, so it was said, written on behalf of the first plaintiff, it was insufficient to revoke the authority impliedly conferred by the second plaintiff. That contention was abandoned, but it illustrates why litigation should be decided on the basis of facts rather than abstract questions.
More generally, all of the matters referred to at the outset of these reasons as to the cautious approach to be employed when determining separate questions, and the necessity of ensuring that there are appropriate facts on which to proceed tell against making orders as sought by the State posing the reformulated questions. It would be contrary to what was said in Attwells v Jackson Lalic Lawyers Pty Ltd extracted above to do so. Indeed, if anything there is less reason for this Court on appeal to resolve reformulated questions in the abstract than there would be for a trial court to do so.

Orders

The result is that the answer given by the primary judge should be set aside, and in lieu thereof, it should be answered "It is inappropriate to answer this question". The State should not be permitted to amend the question. There is no reason why the matter should not proceed to hearing in the ordinary way.
The State consented to an order that it pay the respondents' costs in this Court. In my view, there should be no order in respect of the parties' costs in the District Court of a separate question which was inappropriate to answer. Although the State was primarily responsible for the formulation of the separate question, it was not opposed by the respondents, and the fact that the question was determined in a factual vacuum is a matter for which both sides are responsible.
Accordingly, I propose these orders:
Refuse leave to amend the proposed draft notice of appeal.
Grant leave to appeal in terms of the draft notice of appeal dated 10 December 2018 from the judgment and orders made in the District Court.
Direct the State to file within seven days a notice of appeal in the terms of the draft notice of appeal, and otherwise dispense with the rules as to service.
Appeal allowed.
Set aside the "Judgment for the Plaintiff" and the order that the defendant pay the plaintiffs' costs made on 4 December 2018, and in lieu thereof, answer the separate question "It is inappropriate to answer this question".
Remit the matter for trial in the District Court.
The State to pay the respondents' costs in this Court as agreed or assessed, such costs to include the application for leave.
Note that there be no order as to the costs of the separate question before the District Court, with the intent that the parties bear their own costs.
SACKVILLE AJA: I agree with the orders proposed by Leeming JA and with his Honour's reasons.
I add only this observation. Leeming JA has identified many difficulties with the separate question that make it inappropriate to answer. Assuming, however, that the question is capable of an answer, it is difficult to see how the answer could be anything other than: "Yes, depending upon the circumstances".
That answer could be of no assistance to the parties in resolving their dispute. Nor could it be of assistance to anyone else seeking guidance as to the law.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 14 March 2019

State of New South Wales v Dargin

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