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"