Gibbs v Commissioner of Police & Anor B37/2000 [2001] HCATrans 298 (27 June 2001)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Brisbane Nos B37 and B38 of 2000

B e t w e e n -

ALAN HARRY GIBBS

Applicant

and

COMMISSIONER OF POLICE

First Respondent

THE STATE OF QUEENSLAND

Second Respondent

Applications for special leave to appeal

GUMMOW J

CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON WEDNESDAY, 27 JUNE 2001, AT 12.22 PM

Copyright in the High Court of Australia

MR A.H. GIBBS appeared in person.

MR M.J. BURNS: I appear in both matters, your Honour, for the respondents. (instructed by the Crown Solicitor for Queensland)

GUMMOW J: You appear in No 11 as well, do you?

MR BURNS: Yes.

GUMMOW J: All right. But they are separate matters, are they not?

MR BURNS: Well, as I understand it, it is an application for leave and an application for an extension of time within which to bring that application, as best I can gather.

GUMMOW J: I see. That being so, they can be dealt with together.

MR BURNS: In my submission, yes.

GUMMOW J: Yes. Yes, very well. Do you understand what has been said, Mr Gibbs?

MR GIBBS: Not quite, your Honour. I am very hard of hearing, I am sorry.

GUMMOW J: No 8 and 11 are interconnected because one involves an application for extension of time and then, if you got that, got the extension, you would be over the first hurdle. The next question: what about the other hurdles? So we would be assisted if you would direct us - if you would address us on both matters together, why you should have the extension and then what would follow.

MR BURNS: It might save time. The extension of time is not opposed, your Honour.

GUMMOW J: The extension is not opposed. All right, very well. Now, this is the matter of Gibbs v Commissioner of Police. So you can assume you - there is no resistance to the extension of time in Gibbs v Commissioner of Police and what we are asking you to do now is to develop, if you wish to do so, your written submissions as to why you should get special leave in the Police matter.

MR GIBBS: Certainly, your Honour. Well, in the first place, your Honour, my case is against the Queensland Police Force and their employer, the government. Now, in a recent case in the Federal Court - could you excuse me while I get a pair of glasses?

GUMMOW J: Yes.

MR GIBBS: In a recent case in the Federal Court, Barclay Oysters Pty Ltd v Ryan and Others 177 ALR 18, it was ruled that statutory bodies are liable for negligence. Now, I apologise for not having that on the file because I never got this until after I filed the evidence, but I am sure Judges of your calibre would be aware of these important authorities that have just come up. Now, I believe that my case should be heard against the Crown and the Police Force on that point of law. Statutory bodies are liable for negligence.

The second point I would like to make, your Honour, it is shown on the evidence filed in Sweeny v The Commissioner of Police - Sweeny received judgment there because the police acted - it was improper conduct. It was based on improper conduct. That is the second reason why police can be sued for negligence and improper conduct.

Now, when this matter went before Judge Noud the judge spoke to me before he heard the matter and he said, "I am not even going to hear this, Mr Gibbs, because your amended pleadings are no better than your first pleadings" and then when he found out that the amended pleadings were made by a barrister, he decided to hear the case after he got the colour out of his face and he said to me, "Mr Gibbs" - well, he ruled that I have a case but it is not actionable because of the authority in Hill and he also quoted the Swan Case, which does not apply. Now, the authority in Hill is as old as the hills and I think it is - - -

GUMMOW J: No, it is not. It is 1989, is it not?

MR GIBBS: I beg your pardon?

GUMMOW J: It is 1989, Hill v The Chief Constable.

MR GIBBS: Is it? I thought it was the "Jack the Ripper" case, your Honour.

GUMMOW J: Well, he was well and truly dead by 1989.

MR GIBBS: Well, that is what it said. Well, I thought it was almost common knowledge that the Hill Case was struck out because there was no proximity in it and there was no personal involvement of police and that is quite the opposite to my case. In the evidence before the court, evidence No 8, Freeman's report, in paragraph 2 he states that there is some complaints were not investigated and he also states that my complaints to police are only a figment of my imagination. They do not exist.

Now, the evidence that I have put to this Court is a complaint to the Commissioner of Police with an analysis from the government department showing that my food had been poisoned. The proof of that complaint was not investigated is shown in evidence 6 and the police freedom of information section shows that no investigation was made about that complaint and that is only one complaint that they did not investigate.

Police proximity is the most important part of my case and it is clearly shown in the police report. If I cannot complain to police and I cannot be heard in a court of law, then I do not have any rights laid down by the Constitution. I am not an alien. I am a citizen of this country and I am entitled to police service and I am entitled to be heard by a court of law. Everybody - every profession has a duty of care and that has been shown in the authority of Justice White in the Campbell v Hyland Case No 1478 of 1985.

That clearly shows duty of care, the same duty of care police are liable for, and on the recent rulings of the Federal Court these statutory bodies are liable for negligence and I am asking this Court for leave to have my case heard. Thank you, your Honour.

GUMMOW J: Yes, Mr Gibbs.

MR BURNS: I have nothing to add to my outline, save for two things. Your Honours will see that in the collection of authorities provided by the respondents there is the addition of two decisions which are not referred to in my outline. One is Mensinga v The Commissioner of the Australian Federal Police Force, an unreported decision.

GUMMOW J: Where do we find that?

MR BURNS: It is, in fact, authority No 15 in the bundle of authorities.

GUMMOW J: Yes.

MR BURNS: It is simply a recent example of the application of the Hill principle in this country and it is followed by the very next authority, the decision of this Court in Crimmins.

GUMMOW J: What was decided in Mensinga?. It is a magistrate's case, is it, or master's case, Master Connolly.

MR BURNS: It was simply before a master. The question that arose for consideration was whether the Director of Public Prosecutions owed a duty of care in the exercise of his discretion whether or not to prosecute.

GUMMOW J: What was the result?

MR BURNS: It was answered in the negative, referring to Hill and also, in particular, to the judgment of Justice McHugh in Crimmins v Stevedoring Industry Finance Committee.

GUMMOW J: Yes.

CALLINAN J: What page is that you want to refer to?

MR BURNS: The passage in Crimmins, your Honour, is at page 39.

CALLINAN J: What paragraph is that?

GUMMOW J: What paragraph in the judgment?

MR BURNS: At about point 4 on page 39. I am referring, of course, to - - -

CALLINAN J: Paragraph [93]; is that right?

MR BURNS: Yes.

GUMMOW J: Yes.

MR BURNS: Thank you, your Honour.

GUMMOW J: Yes, Mr Gibbs. Do you wish to add anything in reply to - - -

MR GIBBS: Yes. I would just like to add that the Crown stated that the Police Service Act was only a charter. It was just some means or guide for them to go on. It is my submission that any Act of Parliament is law. The Police Service Act is law and they have breached their duty by refusing my applications, which is marked under section G of the Police Service Act which is filed with the Court.

GUMMOW J: Now, what do you say about Lord Templeman's speech in Hill?

MR GIBBS: Beg your pardon, your Honour?

GUMMOW J: What do you say about what was said in the House of Lords in Hill v The Chief Constable at page - - -

MR GIBBS: The Chief Constable Case, that was struck out because there was no proximity, and that was also demonstrated in the Doe Case in Canada. There was no proximity in the Hill Case. That is why it was struck out. But in the Doe Case in Canada, they do not have public - "public rights" I think they called it - I have not got it here - but it has been demonstrated many times that the Hill Case was struck out because there was no proximity. I have clear proximity in my case.

GUMMOW J: Yes, thank you. The Court will retire for a short time.

AT 12.36 PM SHORT ADJOURNMENT

UPON RESUMING AT 12.43 PM:

GUMMOW J: The purpose of this application is to enable the applicant, Mr Gibbs, ultimately to argue that an action lies against police officers for failure to investigate, or investigate thoroughly, complaints of criminal conduct made to them by the applicant. Even if in some circumstances such an action could be said to lie, the applicant here would enjoy inadequate prospects of establishing a sufficient basis of liability and loss to support such a claim. In dismissing the application for special leave we make no comment on the application in this country of the decision of the House of Lords in Hill v Chief Constable of West Yorkshire [1989] 1 AC 53.

The application for special leave is refused with costs.

AT 12.44 PM THE MATTER WAS CONCLUDED