(1) Dismiss the application for leave to appeal.
(2) The applicant to pay the respondents the costs not only of the application but of the appeal.
20 ALLSOP ACJ: I agree with Ipp JA's reasons and proposed orders and would add the following.
21 It is clear that in ascertaining whether, in any particular circumstances, a duty of care is to be imputed and in identifying its scope and content, where the circumstances are not covered by an accepted category of liability, the task is to analyse closely the facts bearing on the relationship between the plaintiff and the putative tortfeasor. See for example Woolcock Street Investments Pty Ltd v CDG Pty Ltd [2004] HCA 16; (2004) 216 CLR 515 at [22].
22 This close examination will involve an assessment of salient features such as foreseeability, degree of harm, vulnerability, reliance, assumption of responsibility and numerous other possible factors. These other factors will include legal policy such as coherence and conformity with other duties or legal obligations.
23 Whilst the ultimate question as to the existence of a duty of care is one of law (Vairy v Wyong Shire Council [2005] HCA 62; (2005) 223 CLR 422 at [62]) the task is one which is fact rich and fact intensive. To put it as Windeyer J did in Mount Isa Mines v Pusey [1970] HCA 60; (1970) 125 CLR 383 (at 398 and 399) it is "a value judgment upon ascertained facts".
24 Here the testing and possible vindication of the plaintiffs' assertions through the legal process will depend significantly upon the relationship proven on the particular facts between the plaintiffs and the defendant. One aspect of this, on the material in the papers could be circumstances of communication of the fact that a warrant had issued. This may conceivably give rise to questions of assumption of responsibility whether to an individual or generally which might assist in the imputation of a legal obligation to act and to exercise care. I do not draw this conclusion, I only state it to illuminate the potential for the fact based legal imputation.
25 Whilst of course we must assess the present procedural rights by reference to the presently pleaded case, it is appropriate to judge the exercise of the power to dismiss the claim with an eye to the possible development of the case through the pleadings and the evidence.
26 It is often, though not always, inappropriate to dismiss summarily a claim such as this on the pleadings, at least as they stand at an early stage in litigation. Whilst the applicant has put forward arguments that have some force, those arguments assume an inability of the respondents' case at trial to elicit facts reasonably connected with the current pleadings that could substantiate the claim as a matter of law. I cannot see that with the clarity required in a summary application.
27 In coming to this conclusion I note what was said by Campbell JA in State of NSW v Tyszyk [2008] NSWCA 107 in particular at [123] to [128] and [140] and the dissenting speech of Lord Bingham of Cornhill in Van Colle v Chief Constable of the Hertfordshire Police [2009] 1 AC 225 in the passages referred to by Ipp JA. The pleading is less than perfect, but the argument has concentrated upon the substance of the legal capacity for the duty to arise.
28 To the extent that the pleading may be technically defective that should be dealt with by counsel without the need for litigation. An argument about defects of a pleading capable of rectification should not usually need to be argued before the District Court, let alone the Court of Appeal. In saying this, I am not being critical of one side over another. These pleading issues should have been sorted out before Judge Nield was troubled with the matter. They should be sorted out before any other judge of the District Court is troubled with the matter further.
29 For these reasons I would agree with the orders proposed by Ipp JA and would dismiss the application for leave to appeal with costs, the costs to include the preparation of the concurrent hearing.
30 BEAZLEY JA: I agree with the reasons of Ipp JA and the orders he proposes and the additional comments of Allsop ACJ.
31 An application for summary dismissal is an extreme measure. It forever shuts a plaintiff out of an alleged claim. There is no case in Australia which says that a police officer is immune from suit in the sense that a police officer never can owe a duty of care. Although, as Allsop ACJ indicated during the course of argument, the cases may be rare where a duty of care is found, it was not established on this case that there could be no duty of care owed.
32 For those reasons I agree with the orders proposed.
33 ALLSOP ACJ: The orders of the court are the application for leave to appeal is dismissed with costs, such costs to include the preparation of the concurrent hearing.