Valdemar Ian Valder v The State of New South Wales

Facts 3The plaintiff was charged with shoplifting and prosecuted in the Local Court. A further charge of common assault was preferred and prosecuted at the same time. 4The learned Magistrate convicted the plaintiff of each offence charged and fined the plaintiff $500 for each of the alleged offences. 5From that conviction and sentence, the plaintiff appealed on all grounds to the District Court. The District Court proceedings were heard in Parramatta before Judge Bennett DCJ, who confirmed the conviction and quashed the sentences imposed, sentencing the plaintiff to a good behaviour bond under s 10(1)(b) of the Crimes (Sentencing Procedure) Act 1999 in relation to both of the offences. The bond was entered in the District Court and commenced on 18 September 2012. 6The conditions of the bond were that the plaintiff must be of good behaviour; appear before the court; and accept certain conditions relating to residential address and notification of any change therein. 7From the sentence imposed by Judge Bennett DCJ, the plaintiff sought to appeal to the Court of Criminal Appeal. There was no capacity to appeal to the Court of Criminal Appeal and, at some other stage, it seems, although there is little evidence in relation to it, the plaintiff sought prerogative relief in the Court of Appeal. 8Whatever be the ultimate nature of the proceedings and appeals or review that were sought, the District Court sentence remains extant and has not been set aside or quashed. 9The negligence arises from the conduct of the District Court proceedings referred to above. An interlocutory order of the District Court was that any evidence upon which the plaintiff relied in the all grounds appeal to the District Court should be served on the Director of Public Prosecutions (DPP) by close of business 14 September 2012. 10On Monday, 17 September 2012, the plaintiff attended at the police station at Parramatta and there conversed with the officer on duty, BJ Wilcox. The terms of the conversation are in evidence. It is appropriate for me to repeat the terms of the conversation to which the plaintiff has attested: "I arrived at the police station at around ten to nine on Monday, on the day, and I walking (sic) to the counter. There was one police officer with the badge, the name badge, on his body. I had a number of documents which was going to be my evidence in the Court of Appeal in Parramatta. I had that envelope sealed and addressed to the DPP, Parramatta Police Station. I had a brief exchange of words with the officer. I said, "I have given an order to give this material to the DPP." I even opened the envelope and showed him the paperwork. He initially said, "Okay", and after a few seconds, "I am not going to give it to them." I didn't want to be involved in any discussion. It would not be wise or safe. So I said, "It is your problem now" and left the envelope with the officer and I walked out." 11From the foregoing evidence, and statements made from the bar table by the plaintiff, it appears that the plaintiff, in the mistaken belief that the Director of Public Prosecutions and the Police Prosecutor were one and the same body, attended the police station to serve the Police Prosecutor in circumstances where the direction was to serve the Director of Public Prosecutions. 12From the evidence, and the explanation given from the bar table, it seems that the plaintiff told the officer on duty that it was necessary for the plaintiff to serve these documents on the DPP and he was serving them on the police so they could deliver them to the DPP. This was done in the mistaken belief that the DPP had an office at the Parramatta Police Station. 13The police officer replied "Okay", as is attested to above. A proper understanding of that conversation, as explained, seems to be that the police officer was acknowledging that he understood the nature of the request that was being made. The plaintiff then disclosed the nature of the documents that were contained in the envelope to the police officer, at which stage the police officer made it clear that he would not or could not deliver the documents to the Director of Public Prosecutions. 14I consider that to be a proper explanation for the conversation that occurred between the plaintiff and the police officer at Parramatta. 15At the time that the documents were delivered to the police station, the time for service of the documents on the DPP had already lapsed. Each of the documents provided to the police, and left with them purportedly for the purpose of delivery to the DPP, were documents of which the plaintiff retained copies. 16The next day, 18 September 2012, the plaintiff appeared before Judge Bennett DCJ at the hearing of the all grounds appeal. The plaintiff sought to rely upon the documents, copy of which had been left with the police. 17His Honour declined to allow the plaintiff to rely on those documents. The content and nature of the documents, a copy of which, presumably, is still retained by the plaintiff, have not been adduced in evidence in these proceedings. The Court, as presently constituted, is unaware of the nature of the documents and whether they would or could have any effect on the conviction that was confirmed or the nature of the sentence imposed. 18These are civil proceedings. There is an overwhelming inference that the documents, in the possession of the plaintiff and not produced to the Court in these proceedings, would not assist the plaintiff's case in these proceedings. 19Essentially, the plaintiff's case depends upon the allegation that the police officer owed the plaintiff a duty to deliver the documents on his behalf, a breach of which duty gave rise to damage. The damage is the ultimate conviction in the District Court at the all grounds appeal hearing and the consequences of that conviction on the plaintiff.

Duty of Care 20In Australia, at least, foreseeability is not the only determining factor in ascertaining whether the defendant, the State of New South Wales, has a duty of care. In the foregoing, by referring to the State, it must be understood that I am referring to the police for whom the State is vicariously liable. The vicarious liability of the State for the conduct of members of the police, in a claim such as this, is not in issue in these proceedings. 21In Sullivan v Moody [2001] HCA 59; (2001) 207 CLR 562, the High Court said: "[42] The argument was conducted upon the basis that it was foreseeable that harm of the kind allegedly suffered by the appellants might result from want of care on the part of those who investigated the possibility that the children had been sexually abused. But the fact that it is foreseeable, in the sense of being a real and not far-fetched possibility, that a careless act or omission on the part of one person may cause harm to another does not mean that the first person is subject to a legal liability to compensate the second by way of damages for negligence if there is such carelessness, and harm results. If it were otherwise, at least two consequences would follow. First, the law would subject citizens to an intolerable burden of potential liability, and constrain their freedom of action in a gross manner. Secondly, the tort of negligence would subvert many other principles of law, and statutory provisions, which strike a balance of rights and obligations, duties and freedoms. A defendant will only be liable, in negligence, for failure to take reasonable care to prevent a certain kind of foreseeable harm to a plaintiff, in circumstances where the law imposes a duty to take such care" (per Gleeson CJ, Gaudron, McHugh, Hayne and Callinan JJ). 22The common law of Australia requires not only foreseeability, but the determination of a separate question as to whether the law imposes a duty, for which question there is no one precise formula: Sullivan v Moody at [48], citing Professor Fleming. The High Court dealt further with the determination of existence of such a duty in Sullivan v Moody in the following passage: "[50] Different classes of case give rise to different problems in determining the existence and nature or scope, of a duty of care. Sometimes the problems may be bound up with the harm suffered by the plaintiff, as, for example, where its direct cause is the criminal conduct of some third party. Sometimes they may arise because the defendant is the repository of a statutory power or discretion. Sometimes they may reflect the difficulty of confining the class of persons to whom a duty may be owed within reasonable limits. Sometimes they may concern the need to preserve the coherence of other legal principles, or of a statutory scheme which governs certain conduct or relationships. The relevant problem will then become the focus of attention in a judicial evaluation of the factors which tend for or against a conclusion, to be arrived at as a matter of principle. In Donoghue v Stevenson, for example, Lord Buckmaster, in dissent, was concerned that, if the manufacturer in that case was liable, apart from contract or statute, to a consumer, then a person who negligently built a house might be liable, at any future time, to any person who suffered injury in consequence; a concern which later cases showed to have been far from fanciful. The problem which has caused so much difficulty in relation to the extent of tortious liability in respect of negligently constructed buildings was not only foreseeable, but foreseen, in the seminal case on the law of negligence. [51] In Dorset Yacht Co Ltd v Home Office, Lord Diplock said: "...[T]he judicial development of the law of negligence rightly proceeds by seeking first to identify the relevant characteristics that are common to the kinds of conduct and relationship between the parties which are involved in the case for decision and the kinds of conduct and relationships which have been held in previous decisions of the courts to give rise to a duty of care". [52] Conversely, conduct and relationships may have been held not to give rise to a duty of care, and the reasons for that holding may provide an important guide to the solution of the problem in a new case. [53] Developments in the law of negligence over the last 30 or more years reveal the difficulty of identifying unifying principles that would allow ready solution of novel problems. Nonetheless, that does not mean that novel cases are to be decided by reference only to some intuitive sense of what is "fair" or "unfair". There are cases, and this is one, where to find a duty of care would so cut across other legal principles as to impair their proper application and thus lead to the conclusion that there is no duty of care of the kind asserted. [54] The present cases can be seen as focusing as much upon the communication of information by the respondents to the appellants and to third parties as upon the competence with which examinations or other procedures were conducted. The core of the complaint by each appellant is that he was injured as a result of what he, and others, were told. At once, then, it can be seen that there is an intersection with the law of defamation which resolves the competing interests of the parties through well-developed principles about privilege and the like. To apply the law of negligence in the present case would resolve that competition on an altogether different basis. It would allow recovery of damages for publishing statements to the discredit of a person where the law of defamation would not. [55] More fundamentally, however, these cases present a question about coherence of the law. Considering whether the persons who reported their suspicions about each appellant owed that appellant a duty of care must begin from the recognition that those who made the report had other responsibilities. A duty of the kind alleged should not be found if that duty would not be compatible with other duties which the respondents owed. ... [62] The statutory scheme that formed the background to the activities of the present respondents was, relevantly, a scheme for the protection of children. It required the respondents to treat the interests of the children as paramount. Their professional or statutory responsibilities involved investigating and reporting upon, allegations that the children had suffered, and were under threat of, serious harm. It would be inconsistent with the proper and effective discharge of those responsibilities that they should be subjected to a legal duty, breach of which would sound in damages, to take care to protect persons who were suspected of being the sources of that harm. The duty for which the appellants contend cannot be reconciled satisfactorily, either with the nature of the functions being exercised by the respondents, or with their statutory obligation to treat the interests of the children as paramount. As to the former, the functions of examination, and reporting, require, for their effective discharge, an investigation into the facts without apprehension as to possible adverse consequences for people in the position of the appellants or legal liability to such persons. As to the latter, the interests of the children, and those suspected of causing their harm, are diverse, and irreconcilable. That they are irreconcilable is evident when regard is had to the case in which examination of a child alleged to be a victim of abuse does not allow the examiner to form a definite opinion about whether the child has been abused, only a suspicion that it may have happened. The interests of the child, in such a case, would favour reporting that the suspicion of abuse has not been dispelled; the interests of a person suspected of the abuse would be to the opposite effect." 23Even where a relationship of the kind that gives rise to a duty of care is established, such a duty does not necessarily give rise to the ability to receive compensation for all losses occasioned. A common law duty of care does not apply to compensate injury, loss or damage of all kinds, simply because it exists in relation to one kind. In Sutherland Shire Council v Heyman [1985] HCA 41; (1985) 157 CLR 424 at 487, Brennan J (as his Honour then was) said: "[27] The corollary is that a postulated duty of care must be stated in reference to the kind of damage that a plaintiff has suffered and in reference to the plaintiff or a class of which the plaintiff is a member. [28] It is impermissible to postulate a duty of care to avoid one kind of damage - say, personal injury - and, finding the defendant guilty of failing to discharge that duty, to hold him liable for the damage actually suffered that is of another and independent kind - say, economic loss. Not only may the respective duties differ in what is required to discharge them; the duties may be owed to different persons or classes of persons. That is not to say that a plaintiff who suffers damage of some kind will succeed or fail in an action to recover damages according to his classification of the damage he suffered. The question is always whether the defendant was under a duty to avoid or prevent that damage, but the actual nature of the damage suffered is relevant to the existence and extent of any duty to avoid or prevent it." 24It is also instructive to recite two pages from the judgment of the High Court of Australia in Modbury Triangle Shopping Centre Pty Ltd v Anzil [2000] HCA 61; (2000) 205 CLR 254. In Modbury Triangle, Gleeson CJ said: "[14] In some cases, where there is a problem as to the existence and measure of legal responsibility, it is useful to begin by identifying the nature of the harm suffered by a plaintiff, for which a defendant is said to be liable." 25To similar effect is the statement of Hayne J: "[105] In cases such as the present, where the extent of the relevant duty is not clear, it is useful to begin by considering the damage which the plaintiff suffered, and the particular want of care which is alleged against the defendant. Asking then whether that damage, caused by that want of care, resulted from the breach of a duty which the defendant owed the plaintiff, may reveal more readily the scope of the duty upon which the plaintiff's allegations of breach and damage must depend." 26In this case, the damage for which Mr Valder seeks an award is the damage associated with the confirmation of the guilty verdict and the inability, it is said, to be admitted as a legal practitioner in New South Wales and/or to continue as a financial planner in New South Wales. The want of care, which is alleged to give rise to the damage, is the failure of the police officer to deliver to the Director of Public Prosecution's office the documents delivered to the police as earlier stated. 27Given that the claim against the State of New South Wales, which is vicariously liable for the actions of the police, is a claim in negligence, the provisions of the Civil Liability Act 2002 apply. It is unnecessary to decide whether the provisions of s 5B of the Civil Liability Act preclude a claim for negligence in the circumstances that Mr Valder alleges occurred. I am prepared to accept, without deciding, that s 5B of the Civil Liability Act does not preclude such a cause of action. 28While I consider that the burden of taking steps to avoid the risk of harm in a matter such as this would involve police taking on the responsibility for the delivery of papers in all criminal conduct and such a burden would be extremely onerous, I am also, for present purposes, prepared to accept, without deciding, that the onerousness of the burden does not impact upon the provisions of s 5B(2) and s 5B(1) of the Civil Liability Act in a way that precluded the conduct from a claim for negligence. 29However, the provisions of s 5D of the Civil Liability Act dealing with factual causation and the scope of liability pose significantly greater difficulties for Mr Valder. 30The test described in s 5D(a) requires the Court to deal with the factual connection between the alleged negligence or breach of relevant duty and the occurrence of the particular harm. It is otherwise described as the "but for" test of causation and requires the plaintiff to establish that he would not have suffered the harm of which he complains "but for" the defendant's negligence: Strong v Woolworths Limited [2012] HCA 5; (2012) 246 CLR 182; Adeels Palace Pty Ltd v Moubarak [2009] HCA 48; (2009) 239 CLR 420. 31As a consequence of the test in s 5D(1)(a) of the Civil Liability Act, the plaintiff must prove, to the civil standard of balance of probability, that but for the failure of the police to deliver the documents to the Director of Public Prosecutions, the damage would not have occurred. The evidence before the Court, and any inference that may properly be drawn therefrom, does not satisfy that test. The failure to deliver the documents to the DPP did not cause the harm. 32Mr Valder had the opportunity to explain to the District Court that the documents were delivered to the police on 17 September 2012 and to tender, subject to procedural requirements as to timing, the documents before the District Court. The District Court did not allow the tender. 33Further, Mr Valder has not provided the material to the Court in these proceedings and the Court is not in a position to be able to determine that, if the material were delivered, tendered and utilised by the District Court, the result of the proceedings would have been any different from that which occurred. 34As well as failing to satisfy the factual causation requirement in s 5D(1)(a) of the Civil Liability Act, the plaintiff has significant difficulty in satisfying the requirements of s 5(1)(b) of the Civil Liability Act. In my view, it is not appropriate for the scope of the police's liability to extend to the harm caused by the failure to deliver a document, in circumstances where the relationship between the plaintiff and the police and the police and the proceedings to which the documents relate is so tenuous. 35Further, the test must include the subjective element as to what the plaintiff would have done if the alleged breach of duty had not occurred. This is an issue in which the plaintiff has particular difficulties. Assuming, for the purpose of this discussion, but not deciding, that the police owed a duty of care and breached it by not delivering the document, the plaintiff was aware, and was made aware by the police officer, that the document would not be delivered. 36As earlier stated in the recital of the evidence, the police officer told the plaintiff that he would not be delivering the document. The plaintiff did nothing in relation to that information. He could have retrieved the envelope and delivered it himself. He chose not to do that. It is difficult, if not impossible, to determine that the failure to deliver the document caused the harm in circumstances where the plaintiff had it in his own hands to deliver the document himself and negate any damage. 37The plaintiff submits to the Court that the risk of harm associated with the failure to deliver the documents was "obvious". Given that the plaintiff is unrepresented, I do not take that as an admission as to the operation of the provisions of s 5G of the Civil Liability Act. In any event, this case does not involve a failure to warn. Nevertheless the plaintiff, to put it in terms of the Civil Liability Act, was warned of the "obvious risk" when the police officer made it clear that the documents sought to be delivered would not be. 38I have assumed, earlier in these reasons, that a duty of care existed. I make it clear that the assumption was for the purpose of dealing with subsequent issues, which were more obvious and more easily shown to deny to the plaintiff any prospect of success in the proceedings. Nevertheless, I should point out that in my view there is no duty of care owed by a police officer to a member of the public to deliver goods or documents to the Director of Public Prosecutions, simply because a request is made. 39That is not to say that there are not situations in which a police officer owes a duty of care to members of the public. Obviously, police officers, in some circumstances, owe such a duty. One only has to give the example of circumstances where a person is to be arrested. 40Mr Valder relies upon the assumption of responsibility by the police officer when he said, "Okay" on being shown the envelope. As already stated, in my view the evidence does not establish the assumption of a responsibility to deliver, but, rather, an acknowledgement of the nature of the request being made. 41Even if the initial response were an assumption of responsibility, that assumption was negated by the express statement of the police officer that the document would not be delivered. In this case, the police officer did not assume risk or responsibility for the delivery of the goods. Nor does any risk of harm associated with non-delivery give rise to a cause of action for damages. 42For the foregoing reasons, the plaintiff has not established his cause of action. Nevertheless, I will deal with the issue of damage, but not its assessment. 43The plaintiff claims damages, being an inability to practice as a legal practitioner or to continue practice as a financial planner and/or an investment advisor. The path to such a claim must travel through the finding of guilt by the District Court. 44In other words, the plaintiff claims that the confirmation of the guilt of the plaintiff for shoplifting and common assault would deprive the plaintiff of the capacity, sometime in the future, of practising as a legal practitioner and/or continuing his capacity to act as a financial planner or investment planner. 45There are a number of fundamental problems with such a course. First, the finding of guilt is an order of the court. No material before the Court in these proceedings establishes, or even arguably establishes, that the result of the District Court proceedings would have been different were the documents delivered. The judgment and verdict of the District Court is a verdict of a court of record. The assumption must be that it reflects the law and justice. While the District Court verdict remains extant, it is impermissible for the plaintiff to rely on damages that flow from the assumption that the District Court verdict is wrong. 46Moreover, no evidence has been put to the Court to establish whether a shoplifting and common assault charge would be such as to disentitle the plaintiff from practising as a legal practitioner (were he otherwise qualified) or a financial planner (assuming that is currently the situation). 47In short, the plaintiff has not established, even as a matter of principle or as a matter of fact, that damages (whatever their calculation) arise from the conduct of the police and can, as a matter of vicarious liability, be sheeted home to the State of New South Wales. 48For all of the above reasons, the plaintiff has failed to establish a cause of action or damage arising from the impugned conduct of the police. 49The Court makes the following orders: (1)Judgment for the defendant; (2)The plaintiff shall pay the defendant's costs of and incidental to the proceedings, as agreed or assessed; (3)The parties have liberty within 14 days of the publication of this judgment to apply for a different or special costs order by submission of no more than three (3) pages and any party affected by any such application shall, within a further 14 days from receipt of the application, have liberty to file a response thereto, again by submission of no more than three (3) pages; (4)Proceedings otherwise dismissed.

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: 01 July 2014