[2000] HCA 40
Australian Communist Party v The Commonwealth (1951) 83 CLR 1[1951] HCA 5
Ball v McInerney [2014] NSWCA 331
Builders Licensing Board v Sperway Constructions (Syd) Pty Ltd (1976) 135 CLR 616[1976] HCA 62
CDJ v VAJ (1998) 197 CLR 172[1998] HCA 76
Dey v Victorian Railways Commissioners (1949) 78 CLR 62[1949] HCA 1
Do Carmo v Ford Excavations Pty Ltd [1981] 1 NSWLR 409
Edwards v Noble (1971) 125 CLR 296Re Dash (1947) 47 SR (NSW) 283
Farah Constructions v Say-Dee (2007) 230 CLR 89[2007] HCA 22
Fawcett v Cannon [2007] NSWSC 1267
General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125
[1964] HCA 69
GIO v Weeks
GIO v Kalff [1981] 1 NSWLR 713
House v The King (1936) 55 CLR 499
[1936] HCA 40
Johnstone v Johnstone (1902) 2 SR (NSW) Eq 90
Kentwell v The Queen (2014) 252 CLR 601
[2014] HCA 37
Knight v Kelly (Court of Appeal (NSW), 25 July 1978, unrep)
Kostas v HIA Insurance Services Pty Ltd (2010) 241 CLR 390
[2010] HCA 32
Kotsis v Kotsis (1970) 122 CLR 69
[1970] HCA 61
Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 CLR 254
[2000] HCA 61
Optus Administration Pty Ltd v Glenn Wright by his tutor James Stuart Wright (2017) 94 NSWLR 229
[1948] HCA 24
Roads and Traffic Authority of NSW v Dederer (2007) 234 CLR 330
[2007] HCA 42
Shrimpton v The Commonwealth (1945) 69 CLR 613
[2001] HCA 59
Sweeney v Fitzhardinge (1906) 4 CLR 716
[1906] HCA 73
Victorian Stevedoring and General Contracting Co Pty Ltd and Meakes v Dignan (1931) 46 CLR 73
[1931] HCA 34
Warren v Coombes (1979) 142 CLR 531
Judgment (10 paragraphs)
[1]
Background
Notwithstanding the interlocutory nature of most of the issues agitated in the Motions, the nature of the substantive proceedings is important. For the purpose of these interlocutory proceedings, the nature of those substantive proceedings is uncontroversial.
The respondent, Wendy Walsh, seeks to sue the State of New South Wales for personal injury, being psychiatric injury, that the respondent claims was caused by the negligence of the appellant or, more accurately, the New South Wales Police Force, for whom the appellant is legally responsible.
The respondent served as a Police Officer in New South Wales from 12 July 1981 until 29 October 2005. The learned Associate Judge summarised the evidence, which is contained in Affidavits of the respondent, dated 28 November 2016 and 29 November 2017 and two Affidavits of her solicitor, Kim Howard Smith, dated 14 August 2017 and 1 December 2017.
The appellant filed no Affidavits in the interlocutory proceedings. The learned Associate Judge, correctly, took the view that the respondent's case should be taken at its highest, because of the nature of the summary dismissal proceedings.
The judgment below describes the history of the respondent in the New South Wales Police Force and, relevantly, referred to early training and the period during which the respondent was attached to perform investigatory duties at Bankstown Police Station. Thereafter, from 1993 to 1996, the respondent performed investigatory duties at Liverpool Internal Affairs Unit and from 1996 until 2005, when she retired for medical reasons, the respondent was attached to the regional office at Liverpool Police Station, where she performed investigatory duties similar to those performed in the Internal Affairs Unit.
Essentially, the respondent claims that while attached to Liverpool Police Station, in or about 2000, she was required to investigate the actions of a fellow police officer (hereinafter "the Detective Senior Constable"). The Detective Senior Constable worked alongside the respondent at Liverpool Police Station. The respondent was required, during her investigations, to continue to work with the Detective Senior Constable and other police officers in the office at Liverpool Police Station, where she was part of a team and, the respondent claims, this continued work required the building of rapport and trust with her professional colleagues.
In or about February 2000, the respondent interviewed the Detective Senior Constable. The interview concerned allegations of unlawful and corrupt actions of police officers while on and off duty.
During the course of the interview, according to the respondent's claim, the Detective Senior Constable became very angry and left the interview room before the interview had concluded. The Detective Senior Constable then went on leave for a period. The respondent reported the conduct of the Detective Senior Constable to her superiors.
Most relevantly, the respondent claims that upon the Detective Senior Constable's return to work, and for a number of years thereafter, the Detective Senior Constable engaged in a pattern of conduct, which harassed and frightened her, leading her to suffer from psychological injury, loss and damage.
In or about 2003, the respondent ceased work, on sick leave, and, as earlier stated, was medically discharged from the New South Wales Police Force due to the certified infirmities of adjustment disorder, generalised anxiety disorder, panic disorder with agoraphobic symptoms in partial remission, and a superimposed major depressive disorder in partial remission.
On 27 June 2003, the New South Wales Police Force Commissioner (hereinafter "the Commissioner") accepted that the foregoing conditions were caused by the respondent being hurt on duty. On 2 September 2005, the respondent was medically discharged as a result of those conditions.
The Statement of Claim was initially filed on 23 December 2015. The appellant filed a Notice of Appearance on 28 January 2016 and a Defence on 27 May 2016.
The appellant filed the Notice of Motion seeking to set aside or strike out the proceedings on 10 July 2017. Between the initial filing of the Statement of Claim and the filing of the submissions by the appellant on 1 December 2017, in relation to the strike-out Motion, the proceedings had been before the Court on seven occasions.
On no occasion during the proceedings, up to the filing of the Outline of Submissions, had the appellant made a complaint about the inadequacy of the pleadings. The appellant's Outline of Submissions, filed 1 December 2017, identified that, in its view, the plaintiff, being the respondent in these proceedings, had not disclosed a cause of action.
In response to the matters raised in the Outline of Submissions of 1 December 2017, the respondent filed the second Motion, seeking to file the Proposed Amended Statement of Claim in order to deal with the objections raised by the appellant's Submissions of 1 December 2017. As earlier stated, the second Motion was filed on 15 December 2017, namely, two weeks after receipt of the defendant's/appellant's Outline of Submissions on the first Motion.
Further to the foregoing, the Court notes that as well as the lack of complaint during the Court period between the filing of the Statement of Claim in December 2015 and the filing of the appellant's Outline of Submissions on 1 December 2017, there was, on 30 March 2017, a Statement of Issues in Dispute filed with the Court, which made no reference to any inadequacy in the pleadings.
The foregoing is sufficient background to the substantive proceedings and the procedural issues that arose before the learned Associate Judge.
[2]
Jurisdiction of Court
The provisions of the UCPR and the Supreme Court Rules 1970 (NSW) (hereinafter "SCR") purport to split appeals from Associate Judges. By the provisions of UCPR 49.4, an aggrieved party is given a right of appeal to a judge of the Court from any decision of an Associate Judge, except where an appeal lies to the Court of Appeal.
Appeals from an Associate Judge to the Court of Appeal are dealt with, relevantly, under SCR Pt 60 r 17. There is some minor tension in the provisions, because there is no right of appeal from an Associate Judge to the Court of Appeal, there is an appeal by leave, but I assume that, where the UCPR refers here to an appeal that "lies to the Court of Appeal", it includes an appeal by leave, otherwise the provision would have no effect. [1] The term "Supreme Court", where used in UCPR r 49.4, refers to a judge of the Court. [2]
Further, subject to the Rules, the provisions of s 104 of the Supreme Court Act 1970 (NSW), prohibit an appeal from an Associate Judge to the Court of Appeal. Because of the subjection, the provisions of SCR Pt 60 r 17 operate to grant an appeal. More confusion is created by the fact that an appeal lies from a judgment of the Division. [3] Somewhat counter-intuitively, the Associate Judge is not part of the Division, [4] but is a member of the Court. [5]
As a consequence, SCR Pt 60 r 17, which, as stated, operates despite, or because of, the subjection in s 104 of the Supreme Court Act, grants, subject to the grant of leave, the right of appeal from an Associate Judge to the Court of Appeal on certain limited matters. In that manner, the separation between the appropriate compositions of the Court to deal with any appeal may be determined by the subject matter that the party aggrieved seeks to raise.
Even more confusion again is created by the provisions of s 48 of the Supreme Court Act, which allocates to the Court of Appeal all appeals from specified courts or tribunals, which includes a judge of the Supreme Court, whether or not in that capacity, acting under a statute, and which, for that purpose, expressly, includes an Associate Judge. This provision does not grant jurisdiction, but allocates jurisdiction otherwise granted.
By the provisions of SCR Pt 60 r 17, an appeal lies, subject to the leave of the Court of Appeal, in relation to a range of matters that include, relevantly, a trial; an application to extend a period of limitation, fixed by or under an enactment, within which original proceedings must be brought; [6] and where the Associate Judge's decision is a final decision other than on application for, relevantly, summary dismissal of proceedings.
[3]
Nature of the appeal
Earlier in these reasons, I referred to the historical role of the Associate Judge, not then by that title, the status of which was the subject of some early historical debate and, generally, thought to be a delegatee rather than the Court itself. [22] That history must be borne in mind when one considers some of the earlier judgments relating to the nature of an appeal from an Associate Judge. [23]
The status of an Associate Judge, as part of an analysis as to the nature of an appeal therefrom, was described at length by Cross J in Do Carmo, supra. In the course of the reasons for judgment in Do Carmo, which has been followed universally, Cross J distinguished the early judgments in New South Wales, [24] because they were determined at a time when, at least arguably, the Associate Judge or Master was a delegatee.
Nevertheless, in Johnstone, supra, the Court took a strict view that it was not exercising the function or jurisdiction of the Master at first instance. Rather, the Court was determining an appeal, the test for which was that which we would now describe as the principles in House v The King. [25] Therefore, the Court, on appeal, could not, simply because it was of a different view, intervene to exercise the discretion afresh. In the case of judgments that were not discretionary, error was required to be shown.
At least since the promulgation of the Supreme Court Act, [26] in which the legislature clarified that the Associate Judge was a member of the Court and not a mere delegate for certain purposes, the issues with which Cross J dealt in his historical analysis are of little moment. As, with respect, Cross J correctly states, since the Associate Judge is a member of the Court, in an appeal from an Associate Judge to the Court, the provisions of s 75A of the Supreme Court Act apply.
The terms of s 75A(1) of the Supreme Court Act make clear that the section applies both to an appeal to the Court and to an appeal in proceedings in the Court. At the very least, a matter dealt with by the Associate Judge is a "proceeding in the Court" and, therefore, governed by the terms of s 75A of the Supreme Court Act. If it were not, it would then be an appeal to the Court and the provision would still apply. Further, none of the exceptions in s 75A(2) and (3) of the Supreme Court Act apply.
[4]
The Judgment of the Associate Judge
As already indicated, her Honour made orders: on the third Motion, the respondent's Amended Notice of Motion for extension of time, that the extension of time be heard together with the substantive matter; on the second Motion, that the respondent have leave to file and serve the Proposed Amended Statement of Claim within 14 days of the date of judgment; on the first Motion, that the appellant's Amended Notice of Motion be dismissed; and, in relation to all of the Motions, that the appellant pay the respondent's costs of the first and second Motions on an ordinary basis.
After describing the nature of the Motions that were before the Court, her Honour made clear that the Court was taking the respondent's case at its highest for the purpose of the summary judgment application and summarised the nature of the appellant's case on the summary dismissal application on the basis of both the Statement of Claim, as already filed, and the Proposed Amended Statement of Claim.
The learned Associate Judge then set out the background to the dispute and the nature of the substantive issues sought to be agitated by the respondent. Her Honour stated that the respondent had reported off work on sick leave in 2003 and was medically discharged from the New South Wales Police Force due to the certified infirmities of adjustment disorder, generalised anxiety disorder, panic disorder with agoraphobic symptoms in partial remission, and a superimposed major depressive order in partial remission.
Further, her Honour noted, for the purposes of the interlocutory proceeding that was before the Court, that the Commissioner accepted that those conditions were caused by the respondent being hurt on duty on 27 June 2003. The respondent, as already stated for the purpose of these reasons, was medically discharged as a result of those conditions.
Her Honour then, at [14] and following, discussed the general principles that are applicable to the application for leave to amend. Her Honour recited the terms of s 64 of the Civil Procedure Act and the Court's understanding that if the Statement of Claim is not dismissed, leave should be granted to the respondent to file the Proposed Amended Statement of Claim.
From [17] and following, the learned Associate Judge then discussed the test for summary dismissal. In particular, her Honour discussed whether summary dismissal should occur in circumstances where the respondent seeks to have determined a "novel" development in the law. The Reasons for judgment then discuss the alleged duty of care [39] and the pleadings in the Proposed Amended Statement of Claim.
[5]
Grounds of Appeal and Submissions of the Appellant
Essentially, the appellant, which appeals from the whole of the judgment of Harrison AsJ, raises three grounds of appeal:
1. the primary judge erred in failing to decide the question of law posed by the Motion for summary dismissal, being the question whether the law recognised the duties of care of the kind contended for by the respondent;
2. the primary judge erred in failing to make a finding on the evidence, albeit taken at its highest, that the respondent was not incapable of, or substantially impeded in, the management of her affairs in relation to the cause of action beyond 12 October 2012 such as would entitle her to an extension of time; and
3. the primary judge erred in failing to identify the aspects of the cause of action pleaded in the Proposed Amended Statement of Claim that were maintainable, pursuant to her finding at [137] of the Reasons.
Paragraph [137] of the Reasons for Judgment of Harrison AsJ is in the following terms:
"[137] However, for the purposes of this application, I accept that the plaintiff in her affidavit dated 28 November 2016 deposed at [62]:
'62 On or about 23 July 2015, I received a letter dated 21 July 2015 from Ms Smith enclosing the report of Dr Wright. … This was the first time I understood that if the NSW Police Force (NSWPF) had informed me that how I felt was an injury and early treatment and removing me from working as a police officer while I received treatment would have helped me to get well. After reading Dr Wrights report I understood for the first time I should have been treated earlier and if this had occurred I would have recovered and remained a police officer until my normal retirement age.'"
It is not absolutely clear what the reference to [137] of the Reasons in Ground 3 is. But, if it relies on the proposition that only certain of the pleaded particulars of negligence were not statute-barred by the limitation period, then the consideration of Ground 3 would be the same as that in Ground 2.
[6]
Ground 1: Scope of Duty of Care
The respondent alleges error in that which the respondent describes as the "primary judge's [approach] to converge" the different issues before the Court below. Reference was made to the Reasons at [16] in which her Honour, referring to the Motion to dismiss summarily, states that "if the defendant's arguments fail and the Statement of Claim is not dismissed, leave should be granted to the [respondent] to file" the Proposed Amended Statement of Claim. However, this is a conclusion of her Honour, not a statement of necessary consequence.
The appellant asserts that the foregoing stated approach by the learned Associate Judge is "incorrect", but submits that it is not clear whether the approach was taken. The appellant submits that the approach of her Honour in the Reasons was the incorrect approach, the correct approach being "whether it would be open to the [respondent] upon the pleading to prove facts at trial which would constitute a cause of action". The appellant was there referring to the Reasons at [117]-[120] and suggesting that the learned Associate Judge predicated her conclusion "upon the need for the facts to be elucidated at trial so that the question of whether a duty of care exists and whether the duty has been breached can be determined".
Further, the appellant submits that the claim for negligence advanced in the pleading was not "novel" as suggested in some of the remarks of her Honour below. Nevertheless, the appellant accepted that the second of the duties claimed by the respondent below was "novel", but submitted that this second duty of care was not the formulation the primary judge considered.
The third complaint in relation to duty of care is that the primary judge did not identify the matters which favoured the existence of a duty as alleged in the Proposed Amended Statement of Claim. Lastly, the appellant submits that the primary judge did not engage with the principles by which "the law of tort has developed, which give a measure of coherence to the law as a whole, and permit a court to identify, with the requisite confidence required for summary dismissal, cases where no duty of care will lie".
While the summary dismissal claim is based upon the foregoing principles, the appellant also reiterated its submissions as to the deficiencies in the Proposed Amended Statement of Claim as submitted to the Associate Judge.
[7]
Ground 2: Limitation Act
The appellant relied upon the same principles relating to summary dismissal on the issue raised by the Limitation Act as were relied upon in relation to the existence or non-existence of a duty of care. The appellant maintains that the question of whether the limitation periods were suspended under s 52 of the Limitation Act and the respondent's claims were time-barred "comes down to an analysis of the [respondent's] pleadings in the [Proposed] Amended Statement of Claim and the evidence brought to bear upon the question of disability for the purposes of s 11(3) of the Limitation Act." [41]
The appellant then asserts that little assistance is gained from the Proposed Amended Statement of Claim and the affidavit evidence and submits that the Associate Judge:
"failed to consider the question of whether the disability pleaded and the subject of evidence (which was that it peristed [sic] to an unspecified date in 2012), was 'an impediment that has interfered with the ability of the plaintiff to commence action to warrant the suspension of the limitation period'. In so doing, the primary judge not only failed to take into consideration the numerous examples of the plaintiff being in a position to manage her affairs in relation to the injury she had allegedly sustained … her Honour failed to consider the explanation called for why the plaintiff was not able to manage her affairs in relation to a common law claim". [42]
The appellant asserts that the primary judge was "wrong to conclude that whether the [respondent] could make out the facts necessary to make good her pleaded case is a matter, which could not be determined on the hearing of the Notice of Motion." [43]
Ground 3: Discoverability
As to discoverability, the appellant submits that [137] of the Associate Judge's Reasons are predicated on "the notion of discoverability" and referred to the provisions of s 60I(a)(iii) of the Limitation Act.
The appellant submits that the learned Associate Judge did not carry out the proper enquiry or necessary enquiry relating to the alleged disability that would allow an extension of time or allow the Associate Judge to accept that the extension of time was arguable. The appellant submits the primary judge gave no consideration to the statutory precondition to the viability of the respondent's Application for an Extension of Time that the extension of time was made within three years after the respondent ought to have become aware of the matters listed in s 60I.
[8]
Consideration
The Court has already referred to the background of work duties performed by the respondent for the New South Wales Police Force. The Court has not referred to the medical opinions expressed in relation to the respondent.
The respondent first attended on a psychiatrist, relevantly, on 27 June 2003 at which time she expressed to the psychiatrist that she had been given the task of conducting a departmental investigation involving a senior constable who, at the conclusion of the investigation, threatened her.
Shortly thereafter, as earlier stated, on 21 August 2003, the respondent submitted a Claim for Hurt on Duty Benefits. On 12 January 2004, the psychiatrist who had attended on the respondent on 27 June 2003 addressed a report to the Workers Compensation and Review Branch of the New South Wales Police. Other reports were prepared in relation to the issues.
The respondent was certified as unfit to continue her duties as a police officer due to the infirmities of "adjustment disorder, generalised anxiety disorder" on 25 August 2005. On 26 August 2005, the State Super Fund advised the respondent of a medical discharge. The respondent was in fact discharged on 2 September 2005.
On 6 September 2005, a certificate was issued certifying that the infirmities were caused by the respondent being hurt on duty, the notional date of which was 27 June 2003.
On 6 November 2013, Dr Selwyn Smith, to whom the respondent had been referred by a general practitioner, issued a report, having examined the respondent on 4 November 2013. The report referred to the respondent having "emotionally decompensated" as a result of intimidation, harassment and bullying by a fellow officer.
On 29 July 2014, Dr Smith provided a report to the respondent's solicitors, reiterating the earlier comments and determining that the respondent would be capable of undertaking only menial work.
On 2 October 2014, the respondent applied for an increase in her superannuation allowance.
On 23 July 2015, the respondent received the report of Dr Wright dated 21 July 2015, referred to at [137] of the Preliminary Judgment. By [62] of the Affidavit of the respondent of 26 November 2016, the respondent attests to the fact that it was on seeing the report of Dr Wright on 23 July 2015, that the respondent realised that the failure of treatment prevented her from getting well.
[9]
Conclusion
The appellant has not adduced evidence that alters or seeks to alter any finding of fact by the learned Associate Judge. The Court, as presently constituted, is, therefore, in the position that it is required to decide, on the basis of the evidence adduced before the Associate Judge and adduced before the Court now, that the judgment of the learned Associate Judge is a result of some legal, factual or discretionary error. [57]
There is no contention that factual error has occurred. The errors alleged are errors of law or errors in the exercise of discretion.
The Reasons of Harrison AsJ set out the principles on which her Honour was relying and did so by reference to abundant authority. No statement of principle in her Honour's judgment, or statement of law upon which her Honour relied, was in error.
Regardless of how it is described, apart from the proposition that there was an arguable duty of care, the error that is alleged by the appellant is error in relation to the exercise of discretion. That exercise of discretion occurred in two ways: the exercise of discretion to direct that the issues associated with the extension of time and the provisions of the Limitation Act should be heard and determined at the same time as the substantive proceedings; and the exercise of discretion that the plaintiff below, the respondent in this appeal, should be permitted to file the Proposed Amended Statement of Claim. Further, the appellant relies on a duty to dismiss the proceedings, on the basis of the summary dismissal application.
The exercise of discretion by her Honour in each of the foregoing aspects is not based upon a wrong principle; has not allowed extraneous or irrelevant matters to affect the judgment; does not mistake the facts; has not taken into account an immaterial consideration; has taken into account all relevant considerations; and cannot, for any of the foregoing reasons, be the subject of intervention for any identifiable error. [58] Nor is the outcome such that there is manifest error, being an outcome that is unreasonable or plainly unjust or, otherwise expressed, discloses an outcome from which the Court may infer there has been a failure properly to exercise the discretion which the law has reposed in the learned Associate Justice.
Further, in the circumstances considered by her Honour and summarised herein, there was no duty to dismiss the proceedings summarily. The limitation point is still open to both sides. The cause of action issue is a matter that can be better addressed at the substantive hearing.
[10]
Endnotes
Supreme Court Act, ss 101(1), (2) and (4).
UCPR, r 49.1(a).
Supreme Court Act, s 101(1)(a).
Supreme Court Act, s 41(1)(a).
Supreme Court Act, s 25 and see UCPR r 49.1(b).
SCR, Pt 60 r 17(j).
El-Saeidy v NSW Land & Housing Corporation [2014] NSWCA 172, amongst others.
Supreme Court Act, s 101(1)(a).
See, for example, GIO v Weeks; GIO v Kalff [1981] 1 NSWLR 713.
Australian Communist Party v The Commonwealth (1951) 83 CLR 1 at 258.2; [1951] HCA 5 (per Fullagar J); Shrimpton v The Commonwealth (1945) 69 CLR 613 at 630.1; [1945] HCA 4 (per Dixon J) and although these particular references are to constitutional limitations, they apply equally to the notion that subordinate legislation of the same legislature cannot render a matter expressly required by legislation to be performed in one manner to be performed in another inconsistent manner.
Civil Procedure Act, s 8.
Civil Procedure Act, s 10.
Civil Procedure Act, s 11.
Generalia specialibus non derogant. See Perpetual Executors and Trustees Association of Australia Ltd v Federal Commissioner of Taxation (1948) 77 CLR 1 at 29; [1948] HCA 24.
Kotsis v Kotsis (1970) 122 CLR 69; [1970] HCA 61
Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 CLR 254; [2000] HCA 61
Optus Administration Pty Ltd v Glenn Wright by his tutor James Stuart Wright (2017) 94 NSWLR 229; [2017] NSWCA 21
Patronis v State of New South Wales [2018] NSWSC 516
Perpetual Executors and Trustees Association of Australia Ltd v Federal Commissioner of Taxation (1948) 77 CLR 1; [1948] HCA 24
Roads and Traffic Authority of NSW v Dederer (2007) 234 CLR 330; [2007] HCA 42
Shrimpton v The Commonwealth (1945) 69 CLR 613; [1945] HCA 4
Sills v State of New South Wales [2019] NSWCA 4
Simpson Ltd v Arcipreste (1989) 53 SASR 9
Sullivan v Moody (2001) 207 CLR 562; [2001] HCA 59
Sweeney v Fitzhardinge (1906) 4 CLR 716; [1906] HCA 73;
Victorian Stevedoring and General Contracting Co Pty Ltd and Meakes v Dignan (1931) 46 CLR 73; [1931] HCA 34
Warren v Coombes (1979) 142 CLR 531; [1979] HCA 9
Category: Principal judgment
Parties: State of New South Wales (Defendant/Appellant)
Wendy Walsh (Plaintiff/Respondent)
Representation: Counsel:
B K Nolan (Defendant/Appellant)
J Morris SC/M N Hammond (Plaintiff/Respondent)
Solicitors:
Crown Solicitor's Office (Defendant/Appellant)
Carroll & O'Dea Lawyers (Plaintiff/Respondent)
File Number(s): 2015/376930
Decision under appeal Court or tribunal: Supreme Court
Jurisdiction: Common Law Division
Citation: Walsh v State of New South Wales [2018] NSWSC 1480
Date of Decision: 4 October 2018
Before: Harrison AsJ
File Number(s): 2015/376930
None of the other provisions of SCR Pt 60 r 17 are arguably relevant. Plainly, the proceedings before the Associate Judge were not a trial. No one has addressed whether the decision, being pursuant to a Motion for extension of time under the Limitation Act, was a decision "on an application to extend the period of limitation".
Given the outcome of the Motion, and that only the prayers seeking the directions for the hearing were pressed before her Honour, it is not an issue that seems particularly relevant and, to the extent it is relevant, it is a matter with which I deal below. However, the appellant sought to have the proceedings dismissed, inter alia, on account of them being out of time, which may necessarily bring the proceedings within that paragraph. Lastly, the decision of the Associate Judge is neither a final decision nor a decision on an application for summary dismissal.
I turn then to the issues raised by the provisions of SCR Pt 60 r 17(j). Given that the learned Associate Judge, on the application for the extension of the period of limitation fixed by the Limitation Act, issued directions for the matter to be heard in a particular way, it would seem that the decision of the Associate Judge was not a decision "on an application to extend the period of limitation".
Rather, even though the Motion listed before her Honour was an application to extend a period of limitation and even though the defendant below, being the appellant here, sought for the matter to be dismissed as out of time, her Honour's decision was a direction for the hearing of the respondent's application and, as a consequence, I take the view that the provisions of SCR Pt 60 r 17(j) do not require that an appeal from that decision be heard by the Court of Appeal.
It has been accepted that the terms of SCR Pt 60 r 17 determine the appeals that must be taken in the Court of Appeal. [7] But those judgments do not adequately explain, or seek to explain, how the provisions of SCR Pt 60 r 17 or, more relevantly, UCPR 49.4 override the terms of s 48 of the Supreme Court Act.
The provisions of s 104 of the Supreme Court Act are expressly rendered subject to the rules. Section 48 of the Supreme Court Act is not. Thus, if s 48 is given its full effect, every appeal from an Associate Judge is allocated to the Court of Appeal.
The combined effect of ss 48 and 104 of the Supreme Court Act would be that the only appeals that could lie from a judgment of an Associate Judge are those prescribed by SCR Pt 60 r 17 and no appeals from an Associate Judge could be heard by a judge of the Court, not being the Court of Appeal. Such a conclusion would render UCPR r 49.4 otiose.
While an outcome that produced no appeal, except to the Court of Appeal, in itself, may, at first blush, seem odd, it is not. Since all substantive issues can be the subject of appeal to the Court of Appeal under SCR Pt 60 r 17, the only judgments that could not be the subject of an appeal would be those that are both interlocutory and non-final (in the practical sense, e.g. summary judgment or a costs' assessment appeal would be final). The tension in such a construction does not result from any absurdity in such a practice, but from the fact that such a construction would lead to the result that an appeal from an interlocutory and practically non-final judgment would lie to the Court of Appeal from a judge of the Court [8] , but not from an Associate Judge.
The foregoing result is historically not so repugnant. There used to be a view, now honoured more in the breach than in the observance, that appeals would not be taken or heard from a single judge on issues of practice and procedure or interlocutory, non-final judgments. Interlocutory judgments merge in the final judgment and the parties' rights of appeal are preserved, so that the earlier-stated effect of s 48 of the Supreme Court Act mirrored the former practice. Further, the jurisdiction of the then Associate Judges (by whatever title then called) was far more limited than at present. [9]
There would then be a tension between the combined effect of s 48 and s 104 of the Supreme Court Act, operating with SCR Pt 60 r 17, and the provisions of UCPR 49.4. But the legislative provision, allocating all appeals from an Associate Judge to the Court of Appeal, would override any delegated legislation, which would include the UCPR. The stream cannot rise higher than its source. [10]
In the case of the UCPR, the "source" is the Civil Procedure Act 2005 (NSW) and, in particular, s 9 thereof. The Rules Committee [11] makes rules that have effect as the rules of court [12] and prevail over other rules of court. [13] There is no provision that would suggest that the UCPR overrides or prevails over the Supreme Court Act. Further, the general provisions of s 40 of the Supreme Court Act cannot override the specific provisions of s 48 of the Act. [14]
Further again, and to add to the complexity, the Supreme Court Rules supersede any prior inconsistent provision in a statute, to the extent of that inconsistency, [15] and the UCPR is taken to be included in the Supreme Court Rules, [16] as a consequence of which one can assume the UCPR supersedes statutes prior to the Supreme Court Act. But, by definition, the Supreme Court Act itself is not such a prior statute. There is no provision in the Civil Procedure Act that operates in an equivalent or a similar fashion to s 6 of the Supreme Court Act.
Notwithstanding the foregoing, neither party has raised this issue of jurisdiction. There are also many judgments of single judges that have issued on the basis that there was jurisdiction to hear and determine such appeals.
There are some judgments of the Court of Appeal that also assume or determine that a single judge has jurisdiction to hear some appeals from the Associate Judges. Those Court of Appeal judgments, necessarily, deal with the issue as obiter, but such judgments are binding or, even if not, should be followed, [17] and I will act on the basis that, notwithstanding the allocation of the matter in s 48 of the Supreme Court Act, the Court as presently constituted should exercise the jurisdiction to hear the appeal from the Associate Judge, other than those appeals described in SCR Pt 60 r 17, which are to be heard by the Court of Appeal, assuming there be a right of appeal. [18] There are certainly circumstances that would render it desirable that the proceedings be heard in the Division and, assuming there is a right of appeal, the terms of UCPR r 49.4 should be treated as the equivalent of a remitter. [19]
Further, since a judge of appeal is a judge of the Supreme Court; [20] and the UCPR form part of the SCR; and s 104 of the Supreme Court Act is subject to the Rules, then UCPR r 49.4 would operate as a grant of a right of appeal to a judge of the Court, constituted, as a consequence of s 48 of the Supreme Court Act, by a judge of the Court of Appeal or, if, as would ordinarily be the case, the singular includes the plural, to the Court of Appeal itself. [21]
The difficulty is that s 46 of the Supreme Court Act does not contemplate such a jurisdiction for a single judge of the Court of Appeal, except possibly as a consequence of s 46(5) thereof. Nor do the terms of UCPR r 49.4, which except those appeals to the Court of Appeal from the grant of jurisdiction under that provision.
Leaving aside the exception in UCPR r 49.4, as the singular includes the plural, the Court of Appeal would be granted the right to hear and determine, pursuant to s 48 and s 44 of the Supreme Court Act, the appeal to which UCPR r 49.4 refers. That would allow the Court, as presently constituted, notwithstanding the foregoing difficulties, to exercise the jurisdiction under the terms of s 51(1) of the Supreme Court Act. The alternative is that there is no appeal on these matters and the Court has no jurisdiction to deal with the matter. That outcome, if it be correct, should be decided by the Court of Appeal.
The foregoing renders the exception in UCPR r 49.4 inoperative, in terms of its effect on the remainder of the provisions. In reality, the foregoing also treats the definition in UCPR r 49.1, of the Supreme Court unusually, but not in a manner that is inconsistent with the distinction drawn by UCPR r 49.1(a) and UCPR r 49.1(b).
The only other two propositions are either to treat the terms of s 48(1)(b) of the Supreme Court Act inconsistently with its express terms, or to treat UCPR r 49.4 as otiose. The latter would, as already stated, result in the only appeals from an Associate Judge being those prescribed by SCR Pt 60 r 17. The construction that achieves the intent of the provisions and mostly harmonious goals is the construction under which I will now operate, being the exercise of the jurisdiction of the Court under s 51(1) of the Supreme Court Act.
For the foregoing reasons, the Court, as presently constituted, will proceed on the basis that the Court has jurisdiction to hear and determine the appeal and any ancillary motion relating thereto, including the extension of time within which to commence the appeal. Lastly, as already noted, the appeal, under UCPR r 49.4, is "as of right" and there is no issue as to the requirement for leave, assuming, which is yet to be decided, that time should be extended to allow the appeal to proceed.
The provisions of s 75A of the Supreme Court Act prescribe that an appeal against a decision or judgment after a hearing shall be by way of rehearing [27] and the Court has the powers and duties of the first instance decision-maker to allow amendment, to draw inferences, to make findings of fact and the assessment of damages or other money sums. The Court may also receive further evidence.
The term "hearing" is not defined in the Supreme Court Act, but is defined in the Civil Procedure Act as including interlocutory hearings. [28] Ordinarily, a hearing would include an interlocutory hearing.
Leaving aside, for present purposes, an appeal from an executive authority to a court, Sir Frederick Jordan CJ described two kinds of "appeal" from one judicial tribunal to another, being an appeal stricto sensu or an appeal by way of rehearing. [29] Authorities have classified appeals into six categories, but, generally, in relation to an appeal from a court to another judicial officer are categorised into three types: an appeal in stricto sensu; an appeal by way of rehearing; and a de novo hearing or review.
The last-mentioned category is the appeal in which the appellate court uses the trial court's record and reviews the evidence and law, without deference to the trial court's rulings and during which the parties are at liberty to commence afresh and adduce new evidence. [30]
A hearing in stricto sensu is an appeal in which the question for consideration is whether the first instance decision was correct on the material that the primary decision-maker had and as the law was at the time of the first instance decision. [31]
As the High Court explained in Dignan, supra, in the English Court of Appeal, all appeals are by way of "rehearing" in that it is a trial over again on the evidence used in the court below, with the capacity, by special power, to receive further evidence. [32]
The High Court in Dignan was considering whether an alteration in the legislation, which altered rights, liabilities or immunities of the parties before the Court, which were acquired, incurred or secured after the judgment from which the appeal was brought but before the hearing in the High Court, affected the judgment with which the High Court was concerned or that it should deliver.
As is clear from the terms of s 75A(5) of the Supreme Court Act, where the appeal is after a hearing, which is the circumstance in these proceedings, the appeal shall be by way of rehearing. To some extent that term has been discussed already in these reasons.
It is certainly the subject of much authority. Section 75A of the Supreme Court Act replaced s 109 of the Supreme Court Act, in 1972, which previous section dealt only with appeals to the Court of Appeal.
It is now established that an appeal by way of rehearing requires the appellant to demonstrate to the appeal court that, having regard to all of the evidence that, at the time of the decision of the appeal court, has been admitted, and includes the evidence before the primary judge and on appeal, the judgment, which is the subject of the appeal, is a result of some legal, factual or discretionary error. [33]
The foregoing approach is the approach that must be adopted in relation to an appeal from an Associate Judge, as was the view of Cross J. [34] In Edwards v Noble [35] the High Court said:
"That the appeal may be by way of rehearing does not, in my opinion, really bear on this question. The consequence of that description of the appeal is that the appeal is one on fact as well as on law and that the appellate court in deciding it may apply the law as it may then exist: further, where additional evidence has been received it may do so in the light of that evidence along with what had been adduced before the court from which the appeal is brought. A rehearing is not however a retrial of the issues. The question is not whether the appellate court can substitute its view of the facts which, of course, it is empowered to do; but whether it should do so." [36]
Thus, where there is no fresh evidence that has been called to warrant a departure from the findings of fact made by the Associate Judge, assuming for present purposes those findings of fact were open to the Associate Judge, they should not be the subject of interference.
Further, where the Associate Judge has exercised a judicial discretion, any interference in the exercise of that discretion should and must accord with the principles that have been expounded over the years in relation to such appeals. That means that the appellant must show that the first instance judge has acted upon a wrong principle; allowed extraneous or irrelevant matters to affect the judgment; has mistaken facts; has not taken into account a material consideration; or the outcome is such that there is manifest an unreasonable or plainly unjust result. [37]
Unsurprisingly, the foregoing approach is the approach of the Court of Appeal, when dealing with a rehearing. In Ball v McInerney, [38] Gleeson JA (Beazley P and Emmett JA agreeing) said at [7]:
"The appellants seek a new trial in respect of the whole of their claim. The Court may order a new trial under the general power contained in s 75A(10) of the Supreme Court Act 1970 (NSW). Although the appeal to this Court is a rehearing (s 75A(5) Supreme Court Act) to succeed in obtaining a new trial the appellants must demonstrate that some substantial wrong or miscarriage has been occasioned because of an error of law, the improper admission or rejection of evidence, or "on any other ground": Uniform Civil Procedure Rules 2005 (NSW) (UCPR) r 51.53. If this Court concludes that there has been a relevant error below what has to be assessed is the essential justice of the case and whether the error of primary judge, if there was one, really bore upon the ultimate result: Tory v Megna [2007] NSWCA 13 at [41] (Spigelman CJ; Beazley and Bryson JJA agreeing)."
The foregoing is the approach that the Court, as presently constituted, shall take in relation to the appeal from the judgment of Harrison AsJ.
From [40] and following, her Honour discussed the principles concerning the duty of care and the various seminal cases that her Honour considered were relevant to the duty of care pleaded by the respondent. The Reasons for judgment of the learned Associate Judge noted that the claim, being one for psychiatric harm, was subject to the terms of s 32 of the Civil Liability Act 2002 (NSW), recited those provisions of the Act and referred to the judgment of Basten JA in Optus Administration Pty Ltd v Glenn Wright by his tutor James Stuart Wright [40] , and, in particular, extracted and recited [36] of the Optus judgment.
From [90] of the Reasons, her Honour summarised the Submissions of the appellant under four subheadings: inconsistency with statutory duty; the impermissible retrospective nature of the duty pleaded; the duty pleaded being particular to the respondent; and the deficiencies in the pleading in relation to the breach of the said duties.
The learned Associate Judge then summarised the respondent's Submissions (being the respondent to this appeal) and from [117] of the Reasons set out her conclusion in relation to the matters before the Court.
In setting out her conclusions, the learned Associate Judge referred to the proposition that, in terms of summary dismissal, each case depends upon its facts and circumstances and that it was uncontroversial that the appellant owed the respondent a duty of care in relation to her workplace health and safety.
Further, her Honour reiterated that exceptional caution must be exercised in ordering summary dismissal. Her Honour came to the conclusion that it is at least arguable that the appellant owed the respondent a duty of care, which was not incompatible with the performance of a statutory duty, while investigating the misconduct of another Police Officer. As a consequence, her Honour took the view that whether the duty of care existed and whether it was breached depended upon the facts and the ultimate determination of the duty of care after trial and declined to dismiss the proceedings summarily on that basis.
Further, the learned Associate Judge dealt with the foreseeability of the risk of injury, as distinct from its identification retrospectively, and took the view that the respondent's case that the risk of injury was foreseeable was, also, arguable and involved an issue of fact that was required to be illuminated at trial. Her Honour also referred to the Court's duty to facilitate the just, quick and cheap resolution of the proceedings imposed by virtue of s 56 of the Civil Procedure Act. Her Honour reiterated the need to be cautious in ordering summary dismissal and refused the appellant's application on that basis.
Lastly, the learned Associate Judge dealt with the issue of whether the provisions of s 50C of the Limitation Act rendered the cause of action statute barred. Her Honour referred to the onus resting on the respondent to satisfy the Court that the discretion (and jurisdiction) to extend time to commence proceedings and to the circumstance that the appellant accepted that "generally" limitation issues should not be determined on an application for summary dismissal. Her Honour referred to the appellant, notwithstanding that general limitation, relying upon the proposition that in the current circumstances the limitation period had uncontroversially expired and the Court was able to conclude that the Statement of Claim did not disclose a reasonable cause of action and should be dismissed summarily.
Dealing with that aspect, her Honour considered the issues arising in relation to whether a person is "under a disability" within the meaning of s 52 of the Limitation Act and concluded that the respondent's application for an extension of time was arguable and, given that there was medical evidence disclosing that it was appropriate for the extension of time to be heard at the same time as the substantive proceedings in order to ameliorate the adverse and debilitating effect of the giving of evidence on the respondent's disorder, her Honour came to the view that in those particular circumstances, the respondent's application to extend the limitation period should be determined at the same time as the substantive matter.
Essentially, without intending to do justice to the extensive reasons issued by her Honour, on the basis disclosed in her Reasons, her Honour made the orders to which earlier reference has been made.
On 3 December 2015, the respondent was provided with legal advice in respect of the availability of a common law claim for damages. [44]
The Statement of Claim, initiating the proceedings, was filed on 23 December 2015, less than three weeks after the advice on the availability of a common law claim and approximately five months after the respondent realised that the failure to provide her with appropriate treatment prevented her from getting well, according to her Affidavit. A Defence was filed on 27 May 2016.
Thus, taking the respondent's evidence at its highest, the time at which the respondent realised that the alleged failure of the appellant was the cause of her inability to work was some five months before the filing of the Statement of Claim; about nine months after the application for an increase in superannuation allowance on that account; and the Statement of Claim was filed less than three weeks after the advice was provided on the availability of a common law claim.
The appellant submits that the learned Associate Judge did not deal with whether the respondent "ought to have known" of the availability of a claim per s 61I of the Limitation Act and submits that there was a three-year period in which the respondent was no longer suffering a disability per s 52 of the Limitation Act and before which the proceedings were commenced.
There can be little doubt that as from September 2005, when the respondent was certified as having the infirmities that led to her medical discharge and that they were inflicted at work and the hurt was caused "on duty", the respondent was aware that her infirmities of adjustment disorder, generalised anxiety disorder, panic disorder with agoraphobic symptoms in partial remission and a superimposed major depressive disorder in partial remission, were caused at and by work. Nevertheless, taking the respondent's evidence at its highest, the respondent was not aware that those infirmities were inflicted or continued as a result of the failure of the appellant (or more accurately the New South Wales Police Force) to treat those infirmities in a timely manner until July 2015.
Of course, it may be that the respondent's date of realisation is unreliable. It may be that the facts known to the respondent were, at a time much earlier than 23 July 2015, such that the respondent "ought to have known" that the personal injury had been suffered; the nature and extent of the personal injury suffered; and the connection between the personal injury, the damages and the appellant's act or omission. [45]
These are the mandatory considerations that a court must take into account in determining whether to make orders, relevantly, under s 60G of the Limitation Act, being an extension of time in relation to a cause of action accruing after 1 September 1990, founded on negligence, nuisance or breach of duty for personal injury damages. The major considerations in s 60I of the Limitation Act preclude the Court from making an order that it otherwise considers is "just and reasonable" to extend time.
However, the appellant pays no regard to the proposition that tortious conduct depends on damage. Until the respondent "ought to have known" that the inability to work was caused by the negligence of the New South Wales Police Force, she was unaware of the elements of the tort.
Further, the appellant's argument in this area is fundamentally flawed. It treats the judgment of the learned Associate Judge as if it were a determination under s 60G of the Limitation Act and/or under s 60I of the Limitation Act. If it were, then it is the Court of Appeal that should be, subject to leave, determining the appeal. [46]
If the learned Associate Judge had granted summary dismissal on the basis that it was necessary to refuse the application for an extension of time, then the application for an extension of time would have been refused and this Court would lack jurisdiction to deal with the matter.
However, the learned Associate Judge took into account medical evidence relating to the respondent. At [134] of the Reasons, her Honour stated:
"[134] The plaintiff also seeks that the notice of motion be heard together with the substantive matter for the reasons explained by Dr Selwyn Smith in his report that the plaintiff should not be put through preliminary hearing as to whether the limitation period should be extended. Dr Smith opined:
'It is my opinion that the forthcoming hearings are in and of themselves extremely anxiety provoking for Ms Walsh. In having to traverse the previous events involving [the Detective Senior Constable].
This will on a balance of medical probability result in significant emotional distress to her. She continues to experience marked psychological symptomatologies in having to discuss the events that occurred. Accordingly, I would state that it would be most detrimental to Ms Walsh's psychiatric injury to give evidence and be examined on two occasions about the above events. It would be suitably less distressing and harmful to her if she would only have to give evidence and be cross-examined on one occasion.
…'"
After discussing and reciting the evidence of the respondent, the Associate Judge, in her Reasons, discussed the effect of that evidence and its affect on the extension of time. The Reasons state:
"[138] Here the plaintiff deposed that it was not until about 23 July 2015, when she read the report of Dr Wright that she understood for the first time that she should have been treated earlier and if this had occurred she would have recovered and remained a police officer until her normal retirement age. The notice of motion seeking an extension of the limitation period was filed on 23 December 2015, five months after the plaintiff became aware of the connection between the personal injury and the defendant's omissions: see s 60I of the Limitation Act.
[139] The plaintiff's application for an extension of time is arguable. She has been under a period of disability and the medical evidence of Dr Smith is that it would be most detrimental to her psychiatric injury to give evidence and be examined on two occasions about the events. Dr Smith is of the opinion that it would be less distressing and harmful to her if she was only to give evidence and be cross examined on one occasion. In these circumstances, it is my view that the plaintiff's application to extend the limitation period should be determined at the same time as the substantive matter. The defendant's application to have the plaintiff's claim dismissed prior to a substantive hearing fails."
The orders of the learned Associate Judge on the issue associated with the effect of the Limitation Act were, essentially, based on the circumstance that the distress and harm to the respondent associated with the need to be cross-examined on two occasions: one on the extension of time or Limitation Act issue; and the second on the substantive proceedings; was such that it was inappropriate to deal with the Limitation Act issue on a preliminary basis. Her Honour, therefore, ordered that the Limitation Act issue should be heard and determined together with the substantive hearing.
Were it otherwise, as stated, it would have been a decision of the Associate Judge "on an application to extend the period of limitation, fixed by or under an enactment" and would be, subject to the issue of leave, an appeal to the Court of Appeal.
The criticisms of her Honour's judgment on the issue of the Limitation Act are criticisms that can be made only if her Honour was purporting to deal with the application for an extension of time. The summary dismissal application, to the extent that it relied upon the failure to initiate proceedings within the time set by the Limitation Act, is a proceeding for the summary dismissal of proceedings and to the opposite effect of the application under the Limitation Act.
Her Honour decided, exercising the Court's discretion in a manner that was within her Honour's discretion and exercising the discretion judicially, not to deal with the issue of the Limitation Act, but, rather, to list the application under the Limitation Act at the same time as the substantive proceedings.
On the evidence before her Honour, there was an arguable case for an extension of time. Whether it would be or will be successful, ultimately, is not to the point. Nor is it to the point that the appellant's submissions have merit or, even, that they render it likely that the extension of time will not be granted.
There is no error in the manner in which her Honour dealt with the programming of the second Motion, nor with that aspect of the first Motion that dealt with summary dismissal on account of the provisions of the Limitation Act. It was unnecessary to determine the question posed by Ground 2 because there was an arguable case that the claim was not statute-barred on the basis that the claim was only discoverable in 2015 per s 60I of the Limitation Act and, therefore, there was no need for her Honour to explicitly consider the terms of s 52 of the Limitation Act and the question of "disability" thereunder. Accordingly, no error has been established under Ground 2.
I then deal with Ground 1 and the issue associated with the summary dismissal claim on the basis that there is no cause of action or no arguable case. It is conceded, and must be, that the appellant is legally responsible for the conduct of the New South Wales Police Force.
Further, it is accepted that the New South Wales Police Force, and through it the appellant, owes a duty of care to an officer, being, at least, the ordinary duty to take reasonable care to avoid causing foreseeable harm by its acts and omissions. [47] There can be little or no controversy as to the existence of such a duty of care.
The principles relating to summary dismissal were set out by her Honour. Some years ago I summarised them in not dissimilar circumstances. [48] Except as follows herein, it is unnecessary to rehearse or reiterate those principles.
In the period between November 2000 (when the respondent raised issues associated with harassment by the Detective Senior Constable) and 2005 (when the respondent left the New South Wales Police Force), the respondent was governed by the provisions of the Occupational Health and Safety Act 1983 (NSW) (hereinafter "the 1983 Act") and the Occupational Health and Safety Act 2000 (NSW) (hereinafter "the 2000 Act"). Each of those enactments created a duty to ensure the health, safety and welfare at work of all employees of the employer. To avoid doubt, the 1983 Act clarified that police officers were employees and the New South Wales Police Force was an employer for the purposes of that Act. [49]
Each of the aforesaid enactments required an employer to "ensure the health, safety and welfare at work of all employees of the employer". Those duties are conferred by Pt 2 of the 2000 Act, s 32 of which provides that nothing in that Part is to be construed "as conferring a right of action in any civil proceedings in respect of any contravention" or "as conferring a defence". But the right of action of the respondent is not a right conferred by the 2000 Act. If there is a duty that extends to the pleading in [7] of the Proposed Amended Statement of Claim, that relates to the standard of care not to the right of action.
Similarly, s 22 of the 1983 Act provides that nothing in the Division (being the Division that imposes the duties) shall be construed as conferring a right of action in civil proceedings; nor as affecting the extent (if any) to which the breach of a duty imposed under the associated occupational health and safety legislation is actionable; nor affecting the extent (if any) to which the breach of a duty imposed by or under the regulations is actionable. There is also a similar provision relating to the conferring of a defence. The right of action of the respondent in the substantive proceedings is not conferred by any duty, the standard of which is determined by the 1983 Act. Nor does the Proposed Amended Statement of Claim (or the filed Statement of Claim) deal with a duty imposed under the associated occupational health and safety legislation.
It is trite to state that the legislative schemes, being those that existed at the time that the respondent was an employee of the New South Wales Police Force, or those that exist now, did, and do, not create a duty of care. It is at least arguable that the 1983 Act and the 2000 Act affect the standard of care that must be provided.
Nevertheless, the respondent does not argue that her claim rests upon any standard of care created by the foregoing legislation. Rather, the respondent relies upon the statement of Sackville AJA in Sills v State of New South Wales [2019] NSWCA 4 at [9], in which his Honour summarised the position of the State of New South Wales as to a police officer and the acceptance of the duty of care there noted. His Honour said:
"[9] The State admitted that it owed a non-delegable common law duty of care to guard against police officers sustaining foreseeable injury or being exposed to the risk of injury and to provide adequate safeguards against such injury. The State accepted that pursuant to its duty of care it was required to identify officers who, as a result of their duties, were at risk of suffering and were suffering psychiatric or psychological harm. It was also required to take steps to ensure that any officer so identified received appropriate treatment and support to alleviate or lessen the effect of his or her injury. The State further admitted that upon an injured worker's return to duties and thereafter, the State's duty required it to consult with appropriate persons in the workplace to identify hazards associated with the work environment and with systems of work. They [sic] duty extended to assessing the risks of injury or further injury associated with the hazards."
That which is pleaded in [7] of the Proposed Amended Statement of Claim is to the effect of that admitted by the State of New South Wales and described by Sackville AJA in Sills, recited above. The Reasons for Judgment of Sackville AJA were agreed to by Payne JA and Simpson AJA.
The terms of the Proposed Amended Statement of Claim are relevantly:
"3. At all material times, the Defendant had a duty of care to take reasonable steps to prevent or reduce the risk of harm as part of her work as a police officer.
4. At all material times, the Defendant knew or ought to have known that threats of violence, threats and intimidating behaviour by one police officer against another may cause harm.
5. At all material times, the Defendant knew or ought to have known that a police officer ordered to undertake an investigation into a fellow police officer:
(a) Ought be provided with a work environment that would enable security of sensitive information;
(b) Ought not be placed in a situation where the police officer's position with respect to the officer under investigation is compromised by personal conflict, deceit or dishonesty;
(c) Protects the identity of the complainant;
(d) Provides the investigating officer with independence.
6. The Defendant knew or ought to have known that to:
(a) Place the investigating officer in close physical proximity provided no relevant security over the information in the investigator's file;
(b) Place the investigating police officer in a position of unnecessary interpersonal conflict, and may require him or her to engage in deceit, dishonesty and secrecy;
(c) May place the investigating police officer under unnecessary and increased levels of stress;
(d) May compromise the efficacy and integrity of the investigation;
(e) May compromise the security of the investigation;
(f) May cause unnecessary inter-personal conflict with the officer subject to the investigation including physical harm, harassment, bullying which could otherwise be avoided;
(g) Would necessarily expose the investigating officer to risk of harm when the investigating officer was ordered to interview the police officer, and in doing so, reveal that while the officers had been working together on other tasks, one had secretly been investigating the other.
7. At all material times, the Defendant had a duty of care to take reasonable steps to provide a safe working environment for the Plaintiff and to take reasonable steps to reduce the risk of harm as a result of her workplace environment.
Particulars
The harm includes physical and psychiatric injury.
8. At all material times, the Defendant had a duty of care to take reasonable steps to ensure that appropriate measures were taken in response to complaints of inappropriate, intimidating behaviour towards the Plaintiff by another officer.
9. At all material times, the Defendant had a duty of care to take reasonable steps to ensure that appropriate workplace structures were put in place to prevent the continued intimidation, harassment or threatening of the Plaintiff by another police officer."
It is, in the view of the Court as presently constituted, impermissible to construe the duty of care in [3] of the Proposed Amended Statement of Claim, other than together with the remainder of the claim and in particular the extracted paragraphs above. Taken together, the expressions used by the respondent in the Proposed Amended Statement of Claim, give rise to an arguable duty of care, the success of which must depend upon the facts adduced at trial.
The appellant submits that the learned Associate Judge erred by not dealing with the question of law as to the existence of the duty of care as pleaded and as argued by the appellant below. There can be no doubt that there are occasions when summary dismissal may be granted in circumstances where the summary dismissal depends upon lengthy argument on a question of law and the determination of a legal issue.
Whether the legal issue is novel is not to the point. If proceedings were summarily dismissed, because a novel cause of action were sought to be agitated and the court was against the proposed cause of action, the summary dismissal could be appealed and an appropriate intermediate or final appellate court could determine whether the proceedings should have been dismissed and the cause of action existed or did not exist.
In General Steel Industries Inc v Commissioner for Railways (NSW), [50] Barwick CJ stated the test on summary dismissal in a manner that since has been universally adopted. The learned Chief Justice said:
"It is sufficient for me to say that these cases uniformly adhere to the view that the plaintiff ought not to be denied access to the customary tribunal which deals with actions of the kind he brings, unless his lack of a cause of action - if that be the ground on which the court is invited, as in this case, to exercise its powers of summary dismissal - is clearly demonstrated. The test to be applied has been variously expressed; 'so obviously untenable that it cannot possibly succeed'; 'manifestly groundless'; 'so manifestly faulty that it does not admit of argument'; 'discloses a case which the Court is satisfied cannot succeed'; 'under no possibility can there be a good cause of action'; 'be manifest that to allow them' (the pleadings) 'to stand would involve useless expense'.
At times the test has been put as high as saying that the case must be so plain and obvious that the court can say at once that the statement of claim, even if proved, cannot succeed; or 'so manifest on the view of the pleadings, merely reading through them, that it is a case that does not admit of reasonable argument'; 'so to speak apparent at a glance'." [51]
Further, Barwick CJ cited with approval the earlier comment of Dixon J (as his Honour then was) to the effect that:
"the fact that a transaction is intricate may not disentitle the court to examine a cause of action alleged to grow out of it for the purpose of seeing whether the proceeding amounts to an abuse of process or is vexatious. But once it appears that there is a real question to be determined whether of fact or law and that the rights of the parties depend upon it, then it is not competent for the court to dismiss the action as frivolous and vexatious and an abuse of process." (Emphasis added) [52]
As the courts have made clear, summary dismissal is not confined to those cases where argument is unnecessary in the application for summary dismissal, but, after the argument, the respondent's case, in order for it to be dismissed summarily, must be clearly untenable and unarguable.
In these proceedings, the learned Associate Judge dealt at length with the principles on summary dismissal. Nothing in that discussion has been shown to be incorrect. Her Honour took the view that there was a real question to be determined being a question of fact and of law and determined that, in those circumstances, it was not appropriate to dismiss the proceedings summarily. In so doing, her Honour was following authority.
In that regard, the appellant's submission as to the retrospective nature of the duty of care cannot be made out. I have deliberately recited the extracts of the Proposed Amended Statement of Claim and the duties that are said to arise. Bearing in mind the view I take that [7] is intended to reflect that which is summarised and/or described as the duty accepted by the New South Wales Police Force in the extract of the judgment of Sackville AJA, the timing of the duty of care differs. Paragraph [7] of the Proposed Amended Statement of Claim is a general duty of care that arises and arose prior to any conduct on the part of the appellant or respondent.
Paragraph [8] of the Proposed Amended Statement of Claim relies on the duty of care that arose after initial complaint was made by the respondent to the appellant (or more accurately the New South Wales Police Force). Lastly, [9] of the Proposed Amended Statement of Claim, which is also framed as a duty of care, is framed as arising after the New South Wales Police Force was aware of both the complaint and a continuing pattern of behaviour to which the paragraph refers. Her Honour identified that timing aspect at [39] of the Reasons below.
Further, her Honour restated the duty of care and dealt with the submission of the appellant below as to the existence of a duty of care owed by police in the execution of ordinary tasks of duty by reference to the statement of McCallum J (as her Honour then was) in Patronis v State of New South Wales. [53]
In dealing with the submission of the respondent below as to the effect of Sullivan v Moody, [54] her Honour referred to the comments of McCallum J in Patronis at [22], [23], [25] and [26], at [48] and [49] in the Preliminary Judgment. The extract bears repeating:
"[48] In Patronis, McCallum J stated at [22] and [23]:
'22 …The Court held [in Sullivan v Moody] that it would be inconsistent with the proper and effective discharge of the professional and statutory responsibilities of those involved in investigating and reporting upon allegations of sexual abuse for them to be subject to a legal duty to take care to protect persons suspected of being the sources of harm.
23 In reaching that conclusion, the Court had regard to other cases in which a common law duty of care has been alleged in circumstances where the duty would not be compatible with other duties owed by the alleged tortfeasor, including the decision of the House of Lords in Hill v Chief Constable of West Yorkshire [1988] 2 All ER 238; [1989] AC 53. The Court in Sullivan v Moody said at [57]:
"In Hill v Chief Constable of West Yorkshire, the House of Lords held that police officers did not owe a duty to individual members of the public who might suffer injury through their careless failure to apprehend a dangerous criminal. Lord Keith of Kinkel pointed out that the conduct of a police investigation involves a variety of decision on matters of policy and discretion, including decisions as to priorities in the development 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."
…'
[49] Her Honour continued at [25]-[26]:
'25 It may be accepted that courts have rejected the existence of a duty of care owed by police in a number of cases. In addition to Hill v Chief Constable of West Yorkshire, [counsel for the defendant] relied on the decisions in Tame v NSW; Annetts v Australian Stations Pty Ltd (2002) 211 CLR 317; [2002] HCA 35, Cran v NSW (2004) 62 NSWLR 95; [2004] NSWCA 92, New South Wales v Klein [2006] NSWCA 295 and New South Wales v Tyszyk [2008] NSWCA 107.
26 The burden of the submission was that there was no reason to regard the present case as "an exception to the proposition that no duty was owed or is owed by a police officer in the execution of ordinary tasks of duty". In my respectful opinion, the submission overstates the effect of the relevant principle. As recently recognised by the House of Lords in Robinson v Chief Constable of West Yorkshire Police [2018] UKSC 4 (at [55]), Hill v Chief Constable of West Yorkshire is "not authority for the proposition that the police enjoy a general immunity from suit in respect of anything done by them in the course of investigating or preventing crime." On the contrary, the ordinary principles of tortious liability apply to police except in the case of incompatibility with the performance of a professional or statutory duty. The practical effect of that principle may well be that no duty of care will be recognised in the vast majority of cases. But it is wrong, in my respectful opinion, to speak of a principle that no duty is owed by a police officer in the execution of ordinary tasks of duty.
…'
The respondent dealt with the submission as to duty of care owed by the New South Wales Police Force, as an employer, to one of its officers at [29] of its submissions, which are in the following terms:
"29. As to [31] of the Applicant's submissions, the general duty is to arrange workplace tasks to prevent harm arising. A superior officer warned the Respondent to be careful because the Detective Senior Constable might throw a chair at her. This warning was a recognition of the potential risk the Detective Senior Constable might pose and that the Detective Senior Constable had a propensity to violence. The giving of the warning was an acknowledgment that the Detective Senior Constable was potentially physically dangerous in the event he was subjected to interview. The giving of the warning is a clear acknowledgment of the risk. However, on one view, the giving of the warning was an inappropriate response to that risk. After all, if the chair was thrown, the likelihood would be the Respondent would suffer injury. Alternative steps were required. But a consideration of this feature needs to be made in a full hearing. It is not appropriate to address this summarily as the Applicant sought to do."
There is no necessary dichotomy between the duties owed by the New South Wales Police Force to its officers and the duties owed by the New South Wales Police Force and its officers under the Police Act 1990 (NSW). Whether there are inconsistent obligations will depend, very much, on the factual context in which the duty arises and the requirements imposed by the Police Act. Such an argument as to inconsistent obligations necessarily depends upon the facts that may be adduced in the substantive proceedings.
Further, we are not here dealing with an obligation to prevent harm occurring to others. [55] Rather, we are dealing with an obligation on an employer to exercise reasonable care to avoid causing foreseeable harm to an employee. In that context, foreseeable harm may be caused either by a positive act or an omission.
In the substantive proceedings that are now to come before the Court, the respondent was given a task of investigating allegedly corrupt activity by a fellow employee, with whom she was required to work both before and after the investigation. When she was given the work, the respondent was told "to be careful" because of the possibility that the Detective Senior Constable might "throw a chair at her".
In fact, he did not throw a chair at her (or anything else). He did however, on his return to work, threaten her, harass her, and intimidate her.
Yet, despite complaints about that conduct, the New South Wales Police Force did nothing, or did nothing effective, to deal with those threats, that harassment or that intimidation and continued to require the respondent to work in that environment.
So much is the allegation of the respondent in its Proposed Amended Statement of Claim. It is as far from the "prevention of harm to others" that must be distinguished from the obligation to exercise reasonable care to an employee, as one can imagine. [56] Ground 1 should also be dismissed.
Lastly, the appellant seeks an extension of time for the filing of the appeal. Given the conclusions to which the Court has arrived, little turns on the outcome of the extension of time. The prospects of success are relevant as a factor to be borne in mind in the determination of whether the Court should extend time. [59] The appeal is not unarguable, although there are aspects of it which elide the distinction between issues of principle and issues in the exercise of discretion.
Further, the Reasons and the orders of her Honour do not affect substantive rights. The only effect of the judgment below is that the Limitation Act issues; and the nature and existence of the cause of action; will be the subject of argument and determination later in the proceedings. The only prejudice to the appellant is that it, being the State of New South Wales, a "model litigant", will incur costs in preparing and presenting its case. In other words, a hearing will occur.
For its extension of time, the appellant relies on the Affidavit of Ms Maamary of 7 December 2018. By [9] thereof, she states her initial view that an appeal would lie with the Court of Appeal. In my view, she was correct. She had been overseas until 15 October 2018.
Regardless of where an appeal was filed, either in the Court of Appeal or in the Division, it would commence proceedings. [60] Moreover, an Intention to Appeal was filed and served in the time otherwise permitted for an appeal and the appeal itself was filed less than one month after the expiry of the appeal period.
Notwithstanding the strong grounds for refusing the extension of time, and notwithstanding the view I have of the merits of the appeal, it seems appropriate to grant the extension of time.
For the foregoing reasons the Court issues the following orders:
1. The time for the filing of the appeal is extended to allow the filing of the appeal in the instant case on 27 November 2018 and the rules are waived to the extent necessary to achieve that outcome;
2. The appeal is dismissed;
3. The appellant shall pay the respondent's costs of and incidental to the appeal.
Builders Licensing Board v Sperway Constructions (Syd) Pty Ltd (1976) 135 CLR 616 at 619; [1976] HCA 62; Victorian Stevedoring and General Contracting Co Pty Ltd and Meakes v Dignan (1931) 46 CLR 73 at 107; [1931] HCA 34.
Victorian Stevedoring and General Contracting Co Pty Ltd and Meakes v Dignan, supra, at 107.
Allesch v Maunz (2000) 203 CLR 172 at 180, [23]; [2000] HCA 40, per Gaudron, McHugh, Gummow and Hayne JJ; CDJ v VAJ (1998) 197 CLR 172 at 201-202 [111]; [1998] HCA 76, per McHugh, Gummow and Callinan JJ; each cited with approval in Kostas v HIA Insurance Services Pty Ltd (2010) 241 CLR 390 at 400, [27]; [2010] HCA 32, per French CJ.
Do Carmo v Ford Excavations Pty Ltd, op. cit., citing Knight v Kelly (Court of Appeal (NSW), 25 July 1978, unrep).
Edwards v Noble (1971) 125 CLR 296; [1971] HCA 54.
Ibid per Barwick CJ at CLR 304; see also Warren v Coombes (1979) 142 CLR 531; [1979] HCA 9.
House v The King, supra, at 504-505.
[2014] NSWCA 331.
From Preliminary Judgment at [30] and following.
(2017) 94 NSWLR 229; [2017] NSWCA 21.
Appellant's Written Submissions, at [43].
Appellant's Written Submissions, at [49].
Appellant's Written Submissions, at [51].
See Affidavit of the respondent of 26 November 2016 p 46.
Limitation Act 1969 (NSW), s 60I(1).
SCR, Pt 60 r 17(j).
See Reasons for Judgment of Harrison AsJ at [30] and the appellant's written Submissions at [35], together with the Defence to the Statement of Claim at [3].
See Fawcett v Cannon [2007] NSWSC 1267 at [7]-[11].
Occupational Health and Safety Act 1983 (NSW), s 4(3A) and s 4, definition of "employee"; c.f. s 118 of the Occupational Health and Safety Act 2000 (NSW).
(1964) 112 CLR 125; [1964] HCA 69.
Ibid per Barwick CJ at CLR 129.
Dey v Victorian Railways Commissioners (1949) 78 CLR 62; [1949] HCA 1, cited with approval by Barwick CJ in General Steel at 129-130.
[2018] NSWSC 516.
(2001) 207 CLR 562; [2001] HCA 59.
Roads and Traffic Authority of NSW v Dederer (2007) 234 CLR 330; [2007] HCA 42 at [51], per Gummow J.
Dederer, op. cit.; Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 CLR 254; [2000] HCA 61 at [28].
See fn 33 and [7] supra.
House v King, supra.
Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37.
Supreme Court Act, ss 51(1) and 51(2).
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: 26 June 2020