State of New South Wales v Spearpoint

Graham Barclay Oysters Pty Ltd v Ryan [2002] HCA 54; (2002) 211 CLR 540 Hill v Chief Constable of West Yorkshire [1998] AC 53 Mount Isa Mines v Pusey [1970] HCA 60; (1970) 125 CLR 383 CASES CITED: State of NSW v Tyszyk [2008] NSWCA 107 Thompson v Vincent [2005] NSWCA 219 Vairy v Wyong Shire Council [2005] HCA 62; (2005) 223 CLR 422 Van Colle v Chief Constable of the Hertfordshire Police [2009] 1 AC 225 Woolcock Street Investments Pty Ltd v CDG Pty Ltd [2004] HCA 16; (2004) 216 CLR 515

State of New South Wales (Applicant) PARTIES: Wayne Spearpoint (First Respondent) Toni Maree Spearpoint (Second Respondent)

COUNSEL: P Menzies QC; M Hutchings (Applicant) D Campbell SC; W Washington (First and Second Respondent)

SOLICITORS: I V Knight, NSW Crown Solicitor (Applicant) Higgins & Higgins (First and Second Respondent)

LOWER COURT FILE NUMBER(S): Lithgow DC 9/07 and Lithgow DC 10/07

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40298/08 CA 40300/08 LITHGOW DC 9/07 LITHGOW DC 10/07

ALLSOP ACJ BEAZLEY JA IPP JA

30 JULY 2009 State of New South Wales v Wayne Spearpoint State of New South Wales v Toni Maree Spearpoint Ex tempore Judgment

1 ALLSOP ACJ: I shall ask Ipp JA to deliver the first judgment.

2 IPP JA: Before the court are two applications for leave to appeal and if granted appeals against a decision of Judge Nield refusing to dismiss the two respondents' amended statements of claim. The amended statements of claim are virtually identical; the issues on the strike out application in regard to the claim of each respondent do not differ and his Honour's reasons applied to both. The argument to this court has been presented on a like basis and these reasons likewise apply to both applications. 3 The respondent in CA 40300/08 is Ms Toni Maree Spearpoint and the respondent in CA 40298/08 is her father, Mr Wayne Spearpoint. According to their amended statements of claim:

(a) Ms Spearpoint had been in a relationship with Mr Jeremy Fittler;

(b) An apprehended violence order (AVO) was in place for the protection of Ms Spearpoint and her family from Mr Fittler;

(d) On 24 June 2004 Mr and Mrs Spearpoint reported ongoing breaches of the AVO to Constable Randoll at the Lithgow Police Station;

(e) Mr and Mrs Spearpoint expressed to Constable Randoll concerns as to their safety and told him that they believed that Mr Fittler would come to their home and cause injury to the family;

(f) On 25 June Mr and Mrs Spearpoint again attended Lithgow Police Station and reported further breaches of the AVO by Mr Fittler, this time to Inspector Davey. Ms Spearpoint supplied a written statement to the Inspector;

(g) On that date Inspector Davey told Mr and Mrs Spearpoint that a warrant had issued for the arrest of Jeremy Fittler and that he was a wanted person and would be detained;

(h) On the evening of 25 June 2004 Mr and Mrs Spearpoint spoke to Constable Randoll at the Lithgow Police Station, "who chose - did not arrest or detain Mr Fittler";

(i) On the early morning of 26 June 2004 Mr Fittler came to the Spearpoint home and caused injury, loss and damage;

(j) The injury loss and damage was caused by the negligence of the applicant. 4 Before Judge Nield the applicant applied for an order under UCPR r 13.4(b) dismissing the respondents' claims on the grounds that they did not disclose a reasonable cause of action. Judge Nield held that the respondents' claims were arguable and refused to grant the order sought. The applications for leave to appeal and appeals seek to overturn his Honour's decision.

5 Before this court, Mr Menzies QC, who together with Mr Hutchings appeared for the applicant, raised in effect two arguments, the second argument having three sub-arguments. 6 The first argument was based on pleading points. Mr Menzies submitted that the allegation of the existence of a warrant of arrest was merely a hearsay allegation, no direct allegation that a warrant had issued had been made. He pointed out that there were no particulars of the AVO and there were no particulars of the warrant. 7 In my opinion none of these matters, even if correct, would justify the dismissal of the action. I am also not persuaded that the matters which Mr Menzies submitted were defects are in fact defects. I accept that the matter is not well pleaded but the nature of the case that the respondents seek to mount would be plain to anyone reading the document. It is quite clear that the respondents rely on the existence of a warrant and how the respondents prove that will be a matter for the trial. In my view it is unnecessary to give any further particulars of the AVO and the allegation that a warrant was issued for the arrest of Jeremy Fittler is sufficient to plead the defence. Therefore I would not uphold the first argument. 8 The second argument is really the substance of these proceedings before this court and Mr Menzies frankly acknowledged that. The three sub-arguments to which I have referred are as follows. Firstly, there is no duty of care for public policy reasons and Mr Menzies said he relied particularly on Hill v Chief Constable of West Yorkshire [1989] AC 53. The second sub-argument was based on the well known principle that the courts will seek to maintain coherence in the law and Mr Menzies submitted that a recognition of a duty of care in this case would result in the court acknowledging conflicting obligations on police officers. The third sub-argument rested on the proposition that the law does not impose a duty on a person to protect another from harm to a third person. 9 There are many cases in which it has been held that police officers and the police service as a whole do not owe a duty of care to a plaintiff in the particular circumstances of each of those cases but so far there is no authoritative decision in Australia which holds that there is an absolute immunity afforded to police for their conduct in the course of their duties. 10 In State of NSW v Tyszyk [2008] NSWCA 107 Campbell JA observed (at [128]) that what was said in Hill in no way suggests that in all their activities police have immunity from action for negligence and his Honour made it plain that in his opinion each case would depend on its own facts. 11 In Lord Bingham's dissenting judgment in Van Colle v Chief Constable of the Hertfordshire Police [2009] 1 AC 225 his Lordship expressed a cogent argument supporting the proposition that police could owe a duty of care to a private individual arising out of a failure to arrest or otherwise protect that person from harm and again, as Campbell JA did in Tyszyk, stressed that each case depends on its own facts. 12 In my opinion this issue, although it would be very much a live issue at any trial, is not a matter that should be dealt with at the dismissal stage. 13 In Graham Barclay Oysters Pty Ltd v Ryan [2002] HCA 54; (2002) 211 CLR 540 McHugh J (at [81]) expressed the view that a public authority may have imposed on it a duty of care: "[I]f it knows or ought to know that a member of the public relies on it to exercise its power to protect his or her interests." 14 In paragraph 10 of the amended statement of claim it is alleged that a police officer of relatively senior rank indicated to the respondents that a warrant had issued for the arrest of Mr Fittler and that he would be detained. An allegation of this kind would allow the respondents at trial to adduce evidence that they relied on the police for their protection. It would be open to the respondents to prove that they were thereby put in a vulnerable position as they altered their position accordingly.

15 I would add that in Thompson v Vincent [2005] NSWCA 219 Mason P observed (at [54]) that police might act in such a way as to assume a duty of care. 16 By reason of paragraph 10 of the amended statement of claim, it is open to the respondents at trial to attempt to establish such an assumption of a duty of care. 17 The remarks I have made I think deal with not only coherence but the third sub-argument to which I have referred. 18 In my opinion, Nield DCJ correctly refused to dismiss the respondents' amended statement of claim. 19 I would make the following orders:

(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.

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.