State of New South Wales v Rogerson

LEGISLATION CITED: Casino Control Act 1992 Police Act 1990

Anns v Merton LBC [1978] AC 728 Barrett v Enfield LBC [2001] 2 AC 550 Crimmins v Stevedoring Committee [1999] HCA 59; (1999) 200 CLR 1 Goldman Sachs JB Were Services Pty Ltd v Nikolic [2007] FCAFC 120 Jaensch v Coffey [1984] HCA 52; (1984) 155 CLR 549 CASES CITED: Koehler v Cerebos (Aust) Ltd [2005] HCA 15; (2005) 222 CLR 44 Naidu v Group 4 Securities Pty Ltd [2005] NSWSC 618; (2005) EOC 93-408 New South Wales v Fahy [2007] HCA 20; (2007) 81 ALJR 1021 Priest v State of New South Wales [2006] NSWSC 12 State of New South Wales v Paige [2002] NSWCA 235; (2004) 60 NSWLR 371 Sullivan v Moody [2001] HCA 59; (2001) 207 CLR 562 Sutherland Shire Council v Heyman [1985] HCA 41; (1985) 157 CLR 424

PARTIES: State of New South Wales (Claimant) Owen John Rogerson (Opponent)

COUNSEL: Mr J Maconachie with D Mallon (Claimant) Mr A Moses with K Edwards (Opponent)

SOLICITORS: Crown Solicitor (Claimant) Slater & Elias (Opponent)

• 1 - IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40790/06 DC 2968/04

McCOLL JA HANDLEY AJA HOEBEN J

NEGLIGENCE - duty to provide safe system of work - promotion procedures in Police Force - no duty of care to prevent psychiatric injury NEGLIGENCE - statutory powers of Commissioner in management of Police Force - exercise of powers not justiciable POLICE - powers of Commissioner in management of Force - exercise of powers not justiciable

The plaintiff, a former Police Officer, sued the State for breaches of the duty of care owed by the Police Service to safeguard him from foreseeable risks of psychiatric injury. The trial judge found that several breaches of duty had been established and awarded damages of $90,000. The substance of the plaintiff's complaints were that the Service had a duty to protect him from discrimination and victimisation because of his family relationship with his brother, Roger Rogerson, a disgraced former Police Officer. The relevant incidents were (1) the advice of a legal officer that if the plaintiff was called as a witness before the Wood Royal Commission he might be asked questions about his association with his brother and the rejection of a formal complaint about that advice; (2) the rejection by the Casino Control Authority of the plaintiff's nomination for secondment to that Authority; (3) remarks by a fellow officer of lower rank who had been recommended for a promotion ahead of the plaintiff; and (4) the rejection of the plaintiff's formal complaint about those remarks. The State sought leave to appeal. Held: (1) The advice by the legal officer was not a breach of the Service's duty of care, and it was not reasonably foreseeable that it might cause psychiatric injury;

(2) The Service did not owe a common law duty of care when dealing with official complaints;

(3) Under its Act the Casino Control Authority could veto the nomination of a Police Officer for secondment, and the Service owed no duty of care to the plaintiff in that matter;

(4) The Service owed the plaintiff no duty of care to prevent the remarks made by the police officer of lower rank, it had no warning that such remarks might be made, they were made in a private capacity, and were an isolated incident;

(5) None of the matters complained of were breaches of the duty of care owed by the Service to the plaintiff to protect him from the risk of psychiatric injury, and the judgement could not be allowed to stand. ORDERS

1. Leave to appeal granted.
2. The notice of appeal to be filed within 7 days.
3. Appeal allowed with costs.
4. Judgment of the District Court in favour of the plaintiff set aside.
5. In lieu thereof judgment for the defendant in the action with costs.
6. The respondent is to have a certificate under the Suitors' Fund Act 1951. IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40790/06 DC 2968/04

McCOLL JA HANDLEY AJA HOEBEN J

Tuesday 18 December 2007 STATE OF NEW SOUTH WALES V OWEN JOHN ROGERSON Judgment 1 McCOLL JA: I agree with Handley AJA. 2 HANDLEY AJA: The claimant, which was the defendant below, seeks leave to appeal from the judgment of Coorey DCJ of 27 November 2006 in favour of the plaintiff. The Judge found that the State had breached its duty of care to the plaintiff as a police officer, and he was awarded $90,000 damages. The plaintiff had joined the Police Service (Service) on 5 September 1973 and was discharged on medical grounds on 27 June 2001 with the substantive rank of sergeant. 3 The plaintiff was the younger brother of Roger Rogerson, who was dismissed from the Service in 1986, and later convicted of serious criminal offences for which he served terms of imprisonment. 4 The statement of claim pleaded incidents in the plaintiff's career between 1995 and 1999 which were alleged to be breaches of the State's duty of care to provide a safe system of work, to protect him from the risk of psychiatric injury, and to ensure that he was not discriminated against because he was the brother of Roger Rogerson. 5 The incidents which the Judge found had been established and were breaches of the defendant's duty of care, or led to such breaches, included the so called Eros Theatre incident, his failure to obtain secondment to the Casino Control Authority in February 1999, and the loss of his acting rank of Chief Inspector and his position as Acting Commander of the Licensing Enforcement Agency in August 1999. They also included a conversation with Detective Senior Constable Heinrich (Heinrich) in September 1999 and the rejection of his complaint about it. Finally there was his "unilateral" transfer in December 1999 to the Firearms Trafficking Unit from the Licensing Agency. 6 In my judgment the Judge's findings on duty of care and breach failed to take proper account of the statutory framework provided by the Police Act 1990 (the Act): compare New South Wales v Fahy [2007] HCA 20; (2007) 81 ALJR 1021, 1029. The Eros Theatre incident 7 In 1995 the plaintiff had been involved in a police operation at the Eros Theatre in Goulburn Street Sydney. In June the following year he was told by Detective Chief Inspector Clark that the Wood Royal Commission had become interested in aspects of this operation and he might be called as a witness before the Commission. He was required to attend at the Legal Services Branch for a briefing. 8 Mr Marsh of the Legal Services Branch asked the plaintiff whether he was the brother of Roger Rogerson, and about their contacts. The plaintiff asked why this was relevant and Mr Marsh said that he could be asked questions about their association in the witness box. The plaintiff became angry and upset (3/14). As it happened the plaintiff did not give evidence before the Royal Commission (3/78). Inspector Clark agreed that Mr Marsh's comments were out of line and lodged a formal complaint with the Commander of Internal Affairs. He received no reply and no action was taken. 9 It may be accepted that the State would be liable for the conduct of Mr Marsh in the performance of his duties. The Judge found that the lawyer's remarks were "a judgment of the plaintiff's behaviour … on the basis of his familial connection with Roger Rogerson", that the Service could have foreseen that those remarks could cause the plaintiff mental harm, and that it should have taken action to assure the plaintiff that such treatment would not be tolerated. 10 In my judgment this view of the facts is insupportable. If the plaintiff had been called before the Wood Royal Commission there was a real chance that he would have been asked about his relationship with his brother and the contrary was not suggested. It was Mr Marsh's duty to warn the plaintiff so that he could be prepared for such questions. The Judge's findings are the converse of the true position. 11 I am also unable to accept the Judge's finding (p11) that Mr Marsh could or should have reasonably foreseen that his remarks were likely to cause psychiatric harm to the plaintiff. They were strangers, he made his remarks in good faith, and he was not aware of the plaintiff's special sensitivity about his brother. "[T]he bearers of sad tidings" are not liable as tortfeasors: Jaensch v Coffey [1984] HCA 52; (1984) 155 CLR 549, 567 per Brennan J. 12 The remarks did not cause immediate psychiatric harm and the plaintiff continued to progress in the Service and function efficiently for several years. The fact that he was visibly upset did not make psychiatric injury reasonably foreseeable. Both in prospect and retrospect the idea that those remarks caused psychiatric injury and this was reasonably foreseeable was far fetched and fanciful. Some common sense must be brought to bear in the evaluation and acceptance of expert evidence from psychiatrists. 13 Similar comments apply to the failure of the Service to take any action on the complaint. The plaintiff had the satisfaction of knowing that he was supported by his superior officer. However the absence of action on the complaint is perfectly understandable. The remarks were appropriate, and were not made by someone with whom the plaintiff was in regular contact. The persons receiving this complaint were entitled to treat the incident as trivial and to decide that it did not call for any response. 14 Section 139(2) gives the Commissioner power to decide that a complaint does not need to be investigated. The decision in such matters is for the Commissioner and his delegates and not the courts. Section 139(4) requires the Commissioner to notify the Ombudsman if he decides not to investigate a complaint, but he is not required to notify the complainant. The Court is entitled to infer that this duty was performed and that the Ombudsman supported the Commissioner's decision. 15 The view that the failure of the Service to respond to this complaint, that is, its silence, "could have" caused mental harm to the plaintiff and that this was foreseeable to those who decided that the complaint need not be investigated was also far fetched and fanciful: compare Koehler v Cerebos (Aust) Ltd [2005] HCA 15; (2005) 222 CLR 44, 57, 59. 16 In 1996, not long after this incident, the plaintiff was appointed Commander of the Licensing Enforcement Agency with the acting rank and emoluments of Inspector. In 1997 the Agency was renamed and placed under the control of Crime Agencies headed by Assistant Commissioner Clive Small. The plaintiff retained his position as Commander with the acting rank of Chief Inspector. At this stage he could hardly complain that he was being held back in his career or discriminated against because of his brother. The Casino 17 Towards the end of 1998 the Commissioner received a request from the Casino Control Authority for a secondment of a senior officer from the Licensing Agency. Mr Small nominated the plaintiff with the approval of Commissioner Ryan (3/128-9). Mr Small told the plaintiff about his nomination (3/26, 130) and said it was a reward for his service and would be good for his career (3/27). Clearly the plaintiff enjoyed the confidence of the Service at the highest level and his superiors were not holding him back because of his brother. 18 Soon afterwards the Chief Executive Officer of the Authority, Mr Le Compte, informed Mr Small that the plaintiff was not acceptable to the Authority because of his association with his brother (3/131). Mr Small discussed the matter with Commissioner Ryan who decided not to push the nomination (3/165) and Mr Small told Mr Ryan that a fair alternative should be provided (3/165-6). The Commissioner was non-committal. 19 The Casino Control Act 1992 provides that the staff of the Authority must be of the highest integrity (s 136(1)). A person is not eligible for appointment to the Authority unless he or she possesses the highest standard of integrity (subs (2)) which is to be determined by it (subs (3)). These provisions apply to a police officer nominated for secondment (s 145(1)(c); (2)(c); (3)). There was nothing that the Commissioner could do, in the face of these provisions, to force the Authority to accept the plaintiff. It had the final say. Mr Small told the plaintiff that he was not getting the appointment (3/28) "basically because of your name". 20 The plaintiff was understandably disappointed. However he remained Commander of the Licensing Agency. The Judge found (p 16) that the Commissioner's "failure to confront the Casino Authority and [his] failure to re-nominate the plaintiff for secondment" was a clear example (pp 13, 16) of the defendant's failure to protect the plaintiff from unfair treatment from elements outside the Police Service. He said (p 15) that it "was a perfect example of victimisation and discrimination from the highest level" and was "the high mark of the plaintiff's case". If this was so it was not high enough. 21 The Commissioner owed no duty to the plaintiff to confront the Authority or re-nominate him in the face of its veto. Section 8(1) makes the Commissioner, subject to the direction of the Minister, responsible for the management and control of the Police Force. His decision was made in the management of the Force. Within very broad limits such decisions by the person charged by statute with that type of authority are not justiciable. The courts have no power to substitute their own views on matters of management for those of the Commissioner: Anns v Merton LBC [1978] AC 728, 754. 22 The Judge's finding that the Commissioner's refusal to re-nominate the plaintiff was unreasonable was not open to him. As Mason J said in Sutherland Shire Council v Heyman [1985] HCA 41; (1985) 157 CLR 424, 469, in a passage cited by McHugh J in Crimmins v Stevedoring Committee [1999] HCA 59; (1999) 200 CLR 1, 36: " … a public authority is under no duty of care in relation to decisions which involve or are dictated by … political factors or constraints." 23 The public image of the Service and the Commissioner, the need to avoid justified media criticism, and the relationship of the Service with the Authority were political matters in the broadest sense. A decision is not justiciable if it was dictated by considerations which the Courts are not fitted to assess: Barrett v Enfield LBC [2001] 2 AC 550, 571, 581, 583. 24 The Judge's further finding that the Commissioner's report was a clear indication to the plaintiff that the Service was not prepared to protect him from the consequence of his surname is insupportable. There was no such duty because the Service could do nothing to protect the plaintiff from the decision of the Authority. It had not made a mistake of fact. The Heinrich incident 25 In May 1998 the position of Commander, Licensing Agency, in which the plaintiff had been acting since June 1996, was restructured and the position had to be advertised (Small 3/177). The plaintiff applied for it. In July he failed a psychometric test required by the new promotion procedures introduced as a result of the Wood Royal Commission. In October he participated in a committee assessment of his suitability for promotion but failed to qualify. As a result he was ineligible, at that stage, for promotion to the substantive rank of Chief Inspector, but for the time being he remained Commander with that acting rank. 26 In September 1999 Sergeant Peter Brooks, having qualified for appointment to the position of Commander, Licensing Agency, at the rank of Chief Inspector, was appointed to that position. A less qualified person could not continue to act in that position once a properly qualified candidate had been identified. The plaintiff reverted to his substantive rank and its lower emoluments with the position of Senior Investigator. He must have been bitterly disappointed but these events had nothing to do with his relationship with his brother. The Service and the State owed him no duty of care in the administration of the procedures for promotion to commissioned rank: compare State of New South Wales v Paige [2002] NSWCA 235; (2004) 60 NSWLR 371. 27 In April 1999 he applied for the position of Coordinator, Licensing Agency, with the rank of Senior Sergeant. In July the selection committee decided to recommend Heinrich for that appointment. The plaintiff appealed to GREAT against that recommendation. 28 In June 1999 the plaintiff gave evidence to the Police Integrity Commission about his association with his brother Roger Rogerson. He was considered to have acted inappropriately in that association and was counselled by Mr Small but told that no action would be taken against him. 29 On 14 September 1999, having just returned from leave, he had a conversation with Heinrich. He lodged an official complaint the following day (exhibit D) which included the following: " … on Tuesday 14 September … I engaged in a conversation with … Heinrich who informed me that should I be successful in the appeal process that the Police Commissioner would probably take the promotion away in view of an adverse finding from my recent PIC inquiry. As a result of this conversation I have found that … Heinrich made a similar comment to Inspector John White at the Assets Confiscation Unit. The remarks by … Heinrich are to say the least extremely hurtful, disturbing and upsetting and I believe are an attempt to destroy my credibility, integrity and reputation within the Licensing Agency and Crime Agencies, and infer that perhaps I should withdraw my appeal against his nomination. … Heinrich's comments are extremely unprofessional and display a lack of integrity and the degree that he will apparently undertake to discredit my reputation and standing. Similarly I am very concerned that … Heinrich may have access to or has obtained confidential information relating to the current PIC inquiry. Also that he has openly discussed with other members of the Service certain actions which may be taken by the Commissioner against myself, which is a complete contradiction … of that told to me by Assistant Commissioner Small. It is my belief that … Heinrich be directed to explain and justify his actions surrounding this matter." 30 The plaintiff had given an earlier version to Inspector White. He handed the final version to Detective Inspector Campbell, the Internal Affairs Co-ordinator for Crime Agencies, who read it and said (3/43): "I don't think I can do anything about this, sorry"

The plaintiff said he was devastated. The failure of the Service to take any action against Heinrich was said by the Judge to be "another example" of its failure to protect the plaintiff from unfair treatment in the workplace. 31 The Service cannot have a duty to prevent one police officer making hurtful comments to another who is not subordinate to him, or to protect its officers from the consequences of such comments. The plaintiff was then senior to Heinrich. It was a one off event. There is no evidence that anyone in the Service knew that such remarks would be made and without advance knowledge nothing could be done to stop Heinrich making them. They were competing for the same promotion, and the comments were made privately in that context. It is not known how Heinrich came to have this knowledge but the Service can hardly have a legal duty to prevent gossip circulating within its ranks. 32 The plaintiff did not like Inspector Campbell's response but that does not establish a breach of duty. There was no evidence that it was inappropriate, or that a responsible police officer in that position could and should have done anything more. 33 Inspector Campbell may have known that the Commissioner would act on the plaintiff's evidence to the PIC and block his promotion even if he won his appeal. He may have taken the view that the complaint was pointless for that reason or because the hearing in GREAT was only nine days away and in practice its decision would settle the matter. He may have meant that the complaint would achieve nothing for the plaintiff and in his own interests it should go no further. In any event it was not established that the plaintiff was prevented from lodging his complaint through another channel. 34 There remains the fundamental difficulty previously referred to. Section 139(2) gives the Commissioner power to decide that a complaint does not need to be investigated. On the assumption that Inspectors White and Campbell were his delegates for this purpose, they had the power to deal with the Heinrich complaint in this way. The plaintiff was the senior officer making a complaint against an officer of lower rank about his private conduct. The complaint did not involve victimisation by a superior of a subordinate where very different considerations apply: compare Naidu v Group 4 Securities Pty Ltd [2005] NSWSC 618; (2005) EOC 93-408; Priest v State of New South Wales [2006] NSWSC 12; Goldman Sachs JB Were Services Pty Ltd v Nikolic [2007] FCAFC 120 paras [43] - [51]. 35 In my judgment the Service owed no duty of care to prevent Heinrich making the remarks he did, nor did it have a duty to investigate the plaintiff's complaint about those remarks. In Sullivan v Moody [2001] HCA 59; (2001) 207 CLR 562, 581 the Court said that a police investigation into criminal conduct: "… 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." 36 Similar considerations apply to the investigation of complaints by one police officer about another, especially a subordinate. 37 The plaintiff's appeal to GREAT was dismissed, and Heinrich was promoted to Senior Sergeant. Its reasons are not in evidence. The plaintiff now found himself outranked by Heinrich in the Licensing Agency. Understandably he was bitterly disappointed by these events and he would have found working under Heinrich very distressing. However the Service owed no common law duty of care to protect the plaintiff from such disappointments. 38 In December 1999 the plaintiff was transferred, possibly without prior discussion or consultation (p 10), to the Firearms Trafficking Unit. This was said to have been unwanted and unrequested. The absence of prior consultation, if this did not occur, might demonstrate some lack of sensitivity but that is all. The transfer was calculated to remove the plaintiff from what might reasonably have been thought to be a difficult, if not, poisonous situation in which he was subordinate to Heinrich in the same branch of the Service. 39 There was no common law duty of care owed to the plaintiff in this situation, and no breach of such a duty: compare State of New South Wales v Paige. 40 In February 2000 the plaintiff's wife took a telephone call from Superintendent Megan McGowan. The evidence did not establish what position she held in the Service at that time (3/49, 223-5). Mrs Rogerson asked the Superintendent what guarantees were there that what had happened to her husband would not happen again. The Superintendent replied "there are no guarantees" (3/225). The Judge treated this as a peripheral matter (p 14) and does not appear to have found it was a breach of duty. 41 The incidents that the plaintiff found distressing and his numerous disappointments did not involve any breach of a common law duty of care owed to him by the Service. The only setback caused by his relationship with his brother was the rejection, by the Authority, of his secondment, but this was outside the control of the Service. Most of his other disappointments arose from the application of promotion procedures which he did not satisfy. No one, least of all Superintendent McGowan, could give the plaintiff a guarantee that he would not suffer similar disappointments in the future. 42 Although the judgment was for less than $100,000 the decision cannot be allowed to stand. Leave to appeal must be granted and the appeal allowed. 43 The following orders should be made:

1. Leave to appeal granted.
2. The notice of appeal to be filed within 7 days.
3. Appeal allowed with costs.
4. Judgment of the District Court in favour of the plaintiff set aside.
5. In lieu thereof judgment for the defendant in the action with costs.
6. The respondent is to have a certificate under the Suitors' Fund Act 1951. 44 HOEBEN J: I agree with Handley AJA and the orders he has proposed.

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