State of New South Wales v Bryant; State of New South Wales v Ibbett [2006] HCATrans 319 (16 June 2006)

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State of New South Wales v Bryant; State of New South Wales v Ibbett [2006] HCATrans 319 (16 June 2006)

Last Updated: 6 July 2006

[2006] HCATrans 319

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S580 of 2005

B e t w e e n -

STATE OF NEW SOUTH WALES

Applicant

and

DAVID ANDREW BRYANT

Respondent

Office of the Registry
Sydney No S25 of 2006

B e t w e e n -

STATE OF NEW SOUTH WALES

Applicant

and

DOROTHY ISABEL IBBETT

Respondent

Applications for special leave to appeal

GUMMOW ACJ
KIRBY J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 16 JUNE 2006, AT 10.54 AM

Copyright in the High Court of Australia

__________________

MR J.E. MACONACHIE, QC: In both of those cases, I appear, in the first of them with my learned friend, MR C.F. HODGSON, and the second of them with MR E. CHRYSOSTOMOU. (instructed by Crown Solicitor for New South Wales)

MR G.R. PETTY, SC: In the first of those cases, if your Honours please, I appear with my learned friend, MR P.J. FRAME, for the respondent. (instructed by Burston, Cole & Mulock)

MR J.J.J. GARNSEY, QC: May it please the Court, I appear with my learned friend, MR B.E. KINSELLA, in the second of those, that is State of New South Wales v Ibbett. (instructed by James Fuggle Solicitors)

GUMMOW ACJ: We will hear you first, Mr Maconachie, on both matters.

MR MACONACHIE: If your Honour pleases. In the Bryant matter, your Honour, I rely on the written submissions that have been filed. The events which gave rise to the litigation was conduct by the plaintiff in a motor vehicle which brought him to the attention of the police. He was arrested, charged and convicted, but succeeded on appeal and hence these proceedings. The singular but important point that brings us here is whether or not the State of New South Wales can be held to be vicariously liable for exemplary damages. There is no question but that from the very first at the trial the plaintiff was on notice that that point would be taken, that vicarious liability for exemplary damages was a matter of contest.

KIRBY J: But are you not trying to take the law back to Enever?

MR MACONACHIE: No.

KIRBY J: I mean, after all the effort we have made to render the State liable for the actions of police, you are trying to go back and say they have got to bear it themselves.

MR MACONACHIE: No, your Honour, not for a moment.

KIRBY J: For exemplary damages.

MR MACONACHIE: Only in respect of exemplary damages.

KIRBY J: Not aggravated damages?

MR MACONACHIE: No, because they are compensatory. That point, in any event, does not arise in this case.

KIRBY J: But that distinction is not really drawn in the legislation.

MR MACONACHIE: It is, if one understands the law as it was before section 8 of the Vicarious Liability Act was introduced, and it was cases like Enever, Attorney-General v Perpetual Trustees so far as police officers are concerned, Darling Island v Long so far as statutory duties imposed on individuals were concerned. That is what section 7 and by extension section 8 were intended to cure.

GUMMOW ACJ: Where do we see the text of 7 and 8?

MR MACONACHIE: Your Honour will find that at the back of the volume - - -

KIRBY J: Tab 7.

GUMMOW ACJ: Thank you.

MR MACONACHIE: That is the 1992 reprint, though, for more abundant caution - - -

KIRBY J: There was no dissent on this point in the Court of Appeal, was there?

MR MACONACHIE: No, your Honour. I think I am right in saying that. No, there was not. I have, if it is of assistance to your Honours, the later reprint which includes Part 4, the police torts claim part, which is referred to in the judgment. It may be of assistance to your Honours. Could I hand those up. You will find on that second document that I handed up to your Honours the text of 7 and 8 on the second page. It is the words “in respect of a tort committed by the master’s servant” in 7 and “in respect of the tort committed by a person in the service of the Crown”, of which a police officer is one, in 8.

The intention, we say, of the legislation was to remove from the law the point that could be taken by an employer or, relevantly, the Crown, not my responsibility, Enever, Attorney-General v Perpetual Trustees, Darling Island v Long and of course the mining deputy cases and the pilot cases. That is what it was intended to do. We would submit, reading the Act as a whole, it is plain that is what it was intended to do. What it was never intended to do, in our respectful submission, because it is just not referred to anywhere in the Act, was to interfere with the law relating to vicarious liability.

GUMMOW ACJ: Did any question arise in this case at any stage, perhaps the preliminary stage, of this controversy as to the nature of vicarious liability and - - -

MR MACONACHIE: Yes. As to the nature of vicarious liability - - -

GUMMOW ACJ: - - - differences between Justice Fullagar and Justice Kitto and Justice Taylor?

MR MACONACHIE: I am sorry, your Honour.

GUMMOW ACJ: The differences of opinion in Darling Island.

MR MACONACHIE: In this case, no, save and except – and this is central to that which I want to say in addition to the written submissions – what was said in Darling Island by Justice Fullagar was, if I can respectfully put it this way, passed upon by this Court in Hollis v Vabu but in a case in which vicarious liability was not on the radar. Justice Basten, in a passage I will take you to in a moment, relied very heavily on the adoption by this Court in Hollis v Vabu of the Fullagar theory of vicarious liability and applied it, relied upon it, in his construing of section 8.

In our respectful submission, that infected his Honour’s decision with error because an analysis of Darling Island v Long demonstrates that four of the Judges supported what is referred to as the Kitto view. Justice Fullagar was out on his own, as it were. Certainly what Justice Fullagar said was obiter. It is arguable that that which is said by the other four was not necessary for the conclusion in the case which turned on the question of whether or not a statutory duty was imposed upon an employer when the penalty for breach of the regulation was directed to the person in charge.

Justice Basten, by adopting the approach taken by Justice Fullagar in Darling Island v Long, we say, fell into error because that informed him of a theory, a principle relevant to or informing vicarious liability which affected the way in which he interpreted the words “in respect of the tort”. In effect, we say, what his Honour did was to extend that which the Parliament intended beyond responsibility for the acts of the employee or person in the service of the Crown beyond that which was plainly intended by the Parliament and it has very significant - - -

KIRBY J: The strength of your case, it seems to me, is the words “vicariously liable” in the statute, what does that mean?

MR MACONACHIE: Yes.

KIRBY J: Against you is, first, the history of all the endeavours to reform the law of police being able to look to their superiors following the decision in Enever; second, the use of the words “in respect of”, which is extremely wide; and third, the use of the words “purported performance”, which is a phrase apt for a case of going outside the employment or the duty to the Crown. So why is this not just an ambiguity in a State statute which the highest court of the State has looked at and come to a conclusion which is open? Justice McHugh always used to say all of these things you can argue both ways.

MR MACONACHIE: That is always a difficulty when one has a State statute that has been interpreted by the - - -

GUMMOW ACJ: And is now supplemented by the 2003 Act.

MR MACONACHIE: That does not really impact, your Honour, for two reasons. First, it is - - -

GUMMOW ACJ: It does not impact on this cause of action because it is later, I guess.

MR MACONACHIE: It is, but it does not impact upon the construction of section 8 or section 7, but relevantly section 8, because it really provides a procedure whereby the State is sued rather than the police officer whose actions are criticised is sued, and section 9E says “Nothing in this Part”, Part 4, 9A to 9E, is intended to change the law that would otherwise apply. So it is really section 8 and section 8 in the context of the common law of vicarious liability.

KIRBY J: But it is when you bring context in that you are in problems because the context of police torts is that they are of a nature that leads to contentions of aggravated damage or exemplary damage.

MR MACONACHIE: Yes, your Honour, that is quite right.

KIRBY J: So of their very nature they attract that form of damage.

MR MACONACHIE: They do.

KIRBY J: Therefore, it would be an odd thing for Parliament, in dealing with it, not to have used general language and not to have had the purpose of encompassing what is obviously going to be part of the damages in torts of this character.

MR MACONACHIE: Your Honour, the Enever/Attorney-General v Perpetual Trustees point is answered at least in part this way. The Parliament has on a number of occasions over the last 20-odd years or so made specific alterations to the law to deem police officers to be employees for certain purposes, such as superannuation purposes. Before April 1988 the Police Regulation (Superannuation) Act, or something to that effect, was the mechanism by which police officers who were appointed, as they still are under the Police Act, your Honour, they are appointed to an office. Jarratt’s Case in this Court - - -

GUMMOW ACJ: Well, exactly. We have been down this track.

MR MACONACHIE: - - - demonstrates the difference between the appointment on the one hand and the contract on the other – and I do not want to take up time with that, your Honours obviously understand. They are still appointed. Be they of the executive service, be they constables or sergeants, they are appointed, and that is where they get their authority from. For various purposes, such as workers compensation and superannuation, the law has been altered by Parliament to deem police officers to be employees in certain circumstances or, in this case, persons in the service of the Crown. But when the Parliament came to turn its mind to liability for acts by police officers, it did not deem them to be employees which would have immediately attracted the doctrine of vicarious liability; it chose to make a very special, particular and purposeful procedure and a narrow – we submit, much narrower than Justice Basten would have it - - -

GUMMOW ACJ: Does section 8 have any similar provision in any other Australian jurisdiction?

MR MACONACHIE: We cannot find one, your Honour.

GUMMOW ACJ: It is home grown, is it not?

MR MACONACHIE: I think it is. We cannot find one. We had a look and we cannot find one. But the point that I make to answer the hurdle presented to me by Justice Kirby is that his Honour in construing the section fails to have regard to the mischief that section 8 was sought to overcome and fails to have regard to the common law principles of vicarious liability which inform his – misunderstands the principles of vicarious liability which inform his construction of a very important section. It is not only important for police, it is important for employers generally, because of section 7.

GUMMOW ACJ: I was going to ask you about that. Forgetting about section 8 completely, do you say that vicarious liability does not carry with it against the employer the possibility of exemplary damages?

MR MACONACHIE: In Ibbett’s Case you will see, if you have not already seen, disparate views about that, your Honour, and reference to S Case in New Zealand which has been copied to you and I can take you, as I will, certainly for Ibbett’s Case, to passages in the Court of Appeal in New Zealand which say it is just antithetical to the whole notion of vicarious liability because of the punitive element because of the contumeliousness element and the like. The same is said in Britain.

GUMMOW ACJ: That brings us back to the nature of vicarious liability, does it not?

MR MACONACHIE: Yes, it does. Can I just quickly give your Honours - - -

GUMMOW ACJ: You have to solve that first before you get to section 8 I think.

MR MACONACHIE: I think you do.

GUMMOW ACJ: Then you ask yourself: what was section 8 trying to do?

MR MACONACHIE: Quite. In Darling Island v Long – can I take your Honours to it? There are a couple of passages I want to take you to. You should have a large volume that contains a number of cases. I really only want to take you to Darling Island, which you will find at tab 2. That was a case that turned on the application of a regulation under the Navigation Act. Did it impact upon the employer or did it impact only upon the person in charge? It was determined that the words “person in charge” could not include the employer, so the notions of vicarious liability had to be looked at.

Justice Williams at pages 51 to 53 – you will find that at page 34, the top right-hand corner of that bundle, your Honours – right at the bottom of the page, last paragraph:

The final question is whether the appellant can be sued at common law for breach of the statutory obligation placed upon its supervisor or foreman but not upon it by reg. 31 because it is the employer of the supervisor or foreman.

He then goes on to say what happened in the Full Court, as it then was, in New South Wales and at about point 2 on the page, on page 52 of the report, page 35 of the bundle:

But the vicarious liability of an employer for the acts and omissions of his servant in the course of his employment is a liability at common law. If the omission of the supervisor or foreman to take the precautions before loading or unloading a ship prescribed by reg. 31 would be a breach of the duty of care that the supervisor or foreman owed those engaged in loading or unloading the ship at common law the stevedore could be sued at common law because he would be vicariously responsible for this breach of duty. But the employer could not be made liable for the breach by his servant of a duty imposed by a statute or regulation on the servant and not on the employer . . . But it is the statute or regulation that creates the civil right and not the common law. It is the common law that supplies the remedy. It is only in this respect and to this extent that such a duty can be said to become part of the common law.

We say that plainly directs attention to liability of an employer for the acts and omissions of the servant. If you go then to the judgment of Justice Webb, which commences at page 36 of the bundle, at the top of page 37, point 2, in a very short judgment he says this:

Then as to whether the employer is liable in civil proceedings for a breach of reg. 31 by his servant: the employer is not a “person-in-charge” and so has no statutory duty, unless he actually conducts the operation referred to in reg. 31, whether on the spot or from a distance, say through the telephone. And the law does not attribute to the employer the liability that attaches to the servant.

He plainly favours the Kitto approach. Justice Fullagar can be found at page 57, point 2 – that is page 40 of the bundle. He says – and I am passing over some of that which he says, your Honour:

The rule is, in my opinion, rightly stated, as it always is, in terms of liability and not in terms of duty. The liability is a true vicarious liability: that is to say, the master is liable not for a breach of duty resting on him and broken by him but for a breach of duty resting on another and broken by another.

I would pause to interpolate here, his Honour speaks in terms of attributing to the employer the mixed fact and law question of breach – not of the whole of the liability, but of the breach. It is then left to other principles to determine what reparation is imposed upon the employer by reason of that breach.

KIRBY J: But you would have thought, if it had been intended in this context of police torts to exclude indemnity for police action that led to exemplary damages, that the Minister would have said so. It is obviously a very sensitive question.

MR MACONACHIE: Indeed.

GUMMOW ACJ: Do not forget that in Rookes v Barnard in 1964, all those years ago, one of the categories that even Lord Devlin would have preserved was government responsibility for high-handed conduct of government servants.

MR MACONACHIE: Your Honour, I accept that, but that is a very different question to whether or not, when the State is sued purely vicariously, that liability should be attributed to the State when, by the Police Act, the constable is to this very day appointed to a position and then there is statutory and regulatory - - -

KIRBY J: I see the ghost of Enever rising from its chains. This is Enever. You are trying to restore Enever.

MR MACONACHIE: Not it is not, your Honour. It is the difference between right on the one hand and remedy on the other.

KIRBY J: But our duty is to look - - -

MR MACONACHIE: I see that the red lights are winking at me, your Honours. May I continue?

GUMMOW ACJ: Yes.

KIRBY J: Our duty is to look at the statute.

MR MACONACHIE: Of course it is, your Honour.

KIRBY J: And your anchor in the statute is vicarious liability.

MR MACONACHIE: Yes.

KIRBY J: But the problem is that all the other indications in the statute and the purpose of the statute are to deal with, relevantly, police torts and they will always have aspects of exemplary and aggravated damages. It just does not seem to fit with this statute.

MR MACONACHIE: Not always, your Honour. It is a rare case this Court said in Gray.

KIRBY J: I saw somewhere in the figures 146 cases have been brought against police officers.

MR MACONACHIE: Brought against them perhaps.

KIRBY J: I do not know how many of them have involved aggravated or exemplary damages, but I would suspect quite a few.

MR MACONACHIE: Well, your Honour, there might be allegations of them, but whatever the detail might be, the law is, and was recognised in Ibbett’s Case by Chief Justice Spigelman to be, that it is a rare case that attracts exemplary damages.

GUMMOW ACJ: One hopes so.

MR MACONACHIE: Indeed one hopes so.

GUMMOW ACJ: Nevertheless, one has to allow for that special case.

MR MACONACHIE: Of course it does, but that which informs – they are in the written submissions, the cases, your Honour, S and the English case - - -

GUMMOW ACJ: Kuddus.

MR MACONACHIE: Kuddus. Around the world in other jurisdictions vicarious liability for exemplary damages has not been recognised.

KIRBY J: But is that by a specific statutory provision?

MR MACONACHIE: No, it is common law principle, but my point is - - -

KIRBY J: I can see the argument. In fact, that was the sort of thing that was motivating me in Cotogno v Lamb, which was where I was not upheld in this Court, which was that the very purpose of exemplary damages is to bring it home on the person who actually does it.

MR MACONACHIE: Indeed.

KIRBY J: But this Court did not agree with that view in the context of motor vehicle third parties.

MR MACONACHIE: In an insurance context, your Honour.

KIRBY J: That was a specific remedial statute, so is the Vicarious Liability Act.

MR MACONACHIE: But very much in the sense of getting rid of Enever which had nothing to do with exemplary damages. That is the point.

KIRBY J: It would have been so easy, if it is only a few cases, for the legislation to have had a little paragraph saying it will not cover exemplary damages.

MR MACONACHIE: Just as easy to say that it would.

KIRBY J: You can still get that put in. You are the State of New South Wales. Anyway, I think you have had a fair crack of the whip on that one – on the first one.

MR MACONACHIE: Yes, your Honour. The second one will be significantly shorter.

GUMMOW ACJ: Is there any relevant differences between - - -

MR MACONACHIE: They are very different, your Honour.

GUMMOW ACJ: No, in the legal point that would be wished to bring up here.

MR MACONACHIE: Yes, there is, but I can be short.

KIRBY J: You have a dissent in the second case of Justice Ipp.

MR MACONACHIE: Yes.

KIRBY J: The issue of the damages is quite an important issue.

MR MACONACHIE: Indeed.

KIRBY J: The Court of Appeal upped the damages quite substantially.

MR MACONACHIE: They did. We do not come here, as it were, complaining about the quantum issue so much as the principles that are behind it. Can I take your Honours to the application book in Ibbett and if I can ask you to open that at page 140 where our written submissions - - -

KIRBY J: Is the point of difference in Ibbett the damages point?

MR MACONACHIE: No, it is quite different, your Honour. I ran Ibbett in the Court of Appeal, but not the other one. In Ibbett we do not take the vicarious liability point except in a narrow sense in respect of exemplary damages for the re-education that failed. I can explain that very shortly in a moment. The reason that we did not take the same point as was taken in Bryant is because they had a different history, so far as I am aware. The two police officers, Pickavance and Harman, in the Ibbett Case were originally joined and by agreement they were removed from the proceedings and in the circumstances, having regard to the responsibilities of the State as a model litigant and the like, that point was not taken.

The point that is taken – there are four points that are taken. The first is the absence of conscious wrongdoing. The written submissions on that point are at page 140. May I say immediately that the learned Chief Justice decided it, as did Justice Basten, on the basis that there was conscious wrongdoing. I am reminded of something that Justice Kirby said to me when he was President: courts are here to correct orders, not reasons for judgment. I cannot sustain the absence of conscious wrongdoing point because there is a finding of fact that there was conscious wrongdoing and that which the learned Chief Justice wrote and which I criticised - - -

KIRBY J: All right, you have softened us up by your candour. What is your real point?

MR MACONACHIE: The second point, exemplary damages for trespass to land. The Chief Justice – and this was a matter of real controversy in the Court of Appeal - - -

KIRBY J: This is the case where the constable came in, the garage door was going down, one of them jumped under the garage door and brandished his gun at the mother of the accused?

MR MACONACHIE: Yes, your Honour. The only thing he did not say was, “Do you feel lucky?” It was not a - - -

KIRBY J: We find it amusing, but she was an old lady, nearly 80, and she was very upset.

MR MACONACHIE: Of course, your Honour.

KIRBY J: And we do not like our constables to do that.

MR MACONACHIE: Of course, your Honour, and I do not mean to minimise it. I accept by saying what I just said that it was a serious matter and we do not come here complaining about it. The facts are as they were. At 1.42 in the morning a lady of 78 had a revolver pointed at her in her own home. All that we challenged in the Court of Appeal about that I accept here. But the Chief Justice found that there was no basis for awarding exemplary damages in respect of trespass to land except an interest in the owner to have her guests undisturbed. Now, that has never been, as Justice Ipp identifies in his reasons - - -

KIRBY J: The theory of the Englishman’s or now Australian’s home is their castle, it that not enough?

MR MACONACHIE: No.

KIRBY J: You do not have to worry about your guests, do you?

MR MACONACHIE: No, but that is the basis upon which the Chief Justice found there was - - -

KIRBY J: But again we would be correcting the rationale as distinct from the offence here and what was contumelious conduct was going into the home under the gateway with a gun brandished.

MR MACONACHIE: But, your Honour, that may have a considerable impact upon whether or not there are exemplary damages for trespass to land as opposed to exemplary damages for the assault and the extent to which there is double counting and double punishment.

GUMMOW ACJ: What is the crux of the reasoning of Justice Ipp on this question?

MR MACONACHIE: The crux of the reasoning of Justice Ipp is to be found at page – I am sorry, your Honour, I cannot – the crux of his reasoning is it never has been - - -

GUMMOW ACJ: Just take a minute to find it, Mr Maconachie.

MR MACONACHIE: Page 83 to 84 I am told by my learned friend to my right.

GUMMOW ACJ: Be careful on acting in that.

MR MACONACHIE: Your Honour, he is an old and dear friend. Aggravated damages for trespass starts at the top, and he says at line 50:

The Chief Justice describes this as a right of Mrs Ibbett, as the owner of the property, “to have her guests undisturbed”.

I respectfully disagree with the Chief Justice and Basten JA. In my opinion, no such right (sounding in damages) has ever existed and it does not now exist.

I know of no authority –

et cetera.

KIRBY J: The Englishman conceives of the castle with the occupant alone, whereas Justice Spigelman conceives of the castle with the person with their guests, convivial.

MR MACONACHIE: Yes, some kind of resort notion.

KIRBY J: I do not know that it goes that far, but it is different to my notion of the castle theory.

MR MACONACHIE: Of course, your Honour, and that is - - -

GUMMOW ACJ: Where is Justice Basten?

MR MACONACHIE: Justice Basten is to be found at 55.

GUMMOW ACJ: I am sorry?

MR MACONACHIE: No, that is not – no, that is Justice - - -

KIRBY J: Justice Ipp’s long reasons for judgment.

MR MACONACHIE: I am sorry for this lack of control of the paper, your Honour, but they go in all directions these judgments.

GUMMOW ACJ: Page 110, is it?

MR MACONACHIE: It is 113, starting at 246, your Honour.

GUMMOW ACJ: Thank you.

MR MACONACHIE: As the Chief Justice recognises at application book 55, Justice Basten referred to uncertainty in the law in this particular area. At 141, line 27 or thereabouts, we make the point that Justice Basten was “not persuaded that the conduct of Constable Pickavance, accepted by the trial judge, was insufficient to warrant an award of exemplary damages”. In other words, the Chief Justice had one analysis: guests undisturbed; Justice Basten had another analysis, that is, the same basis as the trial judge; and Justice Ipp said that there was no proper basis at all.

GUMMOW ACJ: Where is the basis of Justice Basten?

MR MACONACHIE: Can I ask my learned junior to look for that, your Honour, whilst I go to the next and relatively short point? That is general damages for trespass to land. I hope on this occasion the references to the passages of the judgment are on the right-hand side of the written submissions. The point shortly - - -

KIRBY J: Are you contending as a matter of principle that you have to have deliberate wrongdoing to attract exemplary damages? Why cannot reckless wrongdoing? Is that not the law? I thought the courts have said many times - - -

MR MACONACHIE: The absence of conscious wrongdoing was the first point that I said that I did not wish to press.

KIRBY J: Yes. So you do not press that point?

MR MACONACHIE: No, your Honour.

GUMMOW ACJ: What is your point as to why no exemplary damages in this case?

MR MACONACHIE: I am not suggesting – I will start again. Exemplary damages were given in assault and trespass to land.

GUMMOW ACJ: I know that. What is your point on no exemplary damages for trespass to land?

MR MACONACHIE: That the Chief Justice - - -

GUMMOW ACJ: No, the point of principle. What is the point of principle?

MR MACONACHIE: The point of principle, your Honour, is that - - -

GUMMOW ACJ: If there was any licence, it is obviously revoked on the misconduct.

MR MACONACHIE: Yes, of course.

GUMMOW ACJ: So we have a forcible entry.

MR MACONACHIE: General damages for trespass to land of necessity, of their very nature contain an element of punishment and vindication.

GUMMOW ACJ: But is there any authority that denies the availability of exemplary damages in such cases?

MR MACONACHIE: For trespass to land?

GUMMOW ACJ: Yes.

MR MACONACHIE: I know of none and I know of none that supports it on the basis that the trial judge did.

GUMMOW ACJ: For a forcible entry which is in conscious disregard of a plaintiff’s rights in the land. I would have thought this goes back to the Middle Ages probably.

MR MACONACHIE: That is not quite how it is put, your Honour. Justice Basten speaks of - - -

GUMMOW ACJ: I know that. We have to think about what would happen if it got here and whether there is any utility in chasing this rabbit down a burrow.

MR MACONACHIE: Yes, I understand that, your Honour. The point of principle is upon what basis can or should it be awarded.

GUMMOW ACJ: Contumelious disregard for the plaintiff’s rights.

MR MACONACHIE: What rights? The rights to have his property - - -

KIRBY J: To be a woman in Australia in her own home and not to have a constable rush in with a gun drawn.

MR MACONACHIE: That is not the basis upon which the Chief Justice - - -

GUMMOW ACJ: I realise that, Mr Maconachie.

MR MACONACHIE: Indeed, your Honour.

KIRBY J: But, you see, if at the end of the day you are not going to get relief from us because we simply say the guests is an irrelevancy but the - - -

MR MACONACHIE: I understand what you are saying, your Honour. I am hoisted on the petard that I put forward earlier perhaps.

GUMMOW ACJ: The moment this word “licence” gets uttered lawyers go into some strange stratosphere.

MR MACONACHIE: Indeed.

KIRBY J: You said there were four points.

MR MACONACHIE: The next is general damages for trespass to land, your Honour. The submissions are to be found at page 142 of the application book.

KIRBY J: Do you have a point on damage?

MR MACONACHIE: Yes.

KIRBY J: Because, I must say, I thought there was some sense in what Justice Ipp said on the damages issue and that the majority may have got a bit carried away with the quantum of the damages.

MR MACONACHIE: Yes. Well, there is on the general damages for trespass to land point, your Honour, because the methodology which was employed by Justice Basten, that is, a global or rolled-up approach is appropriate, was deprecated by the Chief Justice and was deprecated by Justice Ipp.

GUMMOW ACJ: You would not ordinarily get special leave on that point, would you?

MR MACONACHIE: It is important, your Honour. After Adams v Kennedy and Lee when the rolled-up approach led to exemplary damages of 100,000, 120,000, or approximately those figures, the incidence of the awarding of exemplary damages, not only in police cases but otherwise, has increased dramatically. The question of the methodology to be applied to ensure that there is no double counting, no double punishment is a very important point – a very important point. The last point, your Honour - - -

KIRBY J: Especially if there are 146 cases. I do not know how many of them have exemplary damages, but there are apparently.

MR MACONACHIE: I apologise for not having seen that figure in the material, your Honour. Maybe it is in the first - - -

GUMMOW ACJ: Anyhow, what is the last point, Mr Maconachie?

MR MACONACHIE: The last point, vicarious liability for negligence. Effectively what the Chief Justice and Justice Basten did was to have regard to the fact that senior police officers, who had never been named in the evidence, never been named in the pleadings, were said not to have done as much as they might have done to re-educate Pickavance and Harman.

KIRBY J: They did not do anything. They just said, “You didn’t do well this time, boys”. That was the extent of the re-education.

MR MACONACHIE: That was one part of the evidence. There was other evidence to the effect that Mr Harman had been treated somewhat differently and more extensively. But the point is, your Honour, the - - -

KIRBY J: He was strip searched.

MR MACONACHIE: No.

KIRBY J: Hold on, that was Mrs - - -

MR MACONACHIE: That was Mr Ibbett.

KIRBY J: Yes.

MR MACONACHIE: The son.

KIRBY J: But he did have a history of drug offending, did he not?

MR MACONACHIE: He had a significant criminal history.

KIRBY J: Yes.

MR MACONACHIE: The very short point is that asserting that exemplary damages were available because senior police officers did not properly re-educate the police officers is tantamount to – is, in fact, imposing upon the State vicarious liability for exemplary damages for a breach of a duty of reasonable care.

KIRBY J: Perhaps it was put on the basis that it added to the contumelious character of the conduct. This is the culture in which this can happen.

MR MACONACHIE: Subjective impact upon the plaintiff, your Honour. That might have something to do with aggravated damages but, in my respectful submission, it is not relevant to exemplary damages.

KIRBY J: I wonder about that. If the purpose of exemplary damages is to coerce and change the conduct of human beings, maybe a few exemplary damages will lead to the requirement amongst police and in police administration to ensure that where conduct of this kind happens it is corrected properly and not in a contemptuous way, “You didn’t do so well this time, boys”.

MR MACONACHIE: Your Honour, that focuses upon not that which was done at the time and in the place where this - - -

KIRBY J: The suggestion is it was done at the time because of this culture, that it would not be sanctioned.

MR MACONACHIE: But it was after the event, did not come to light until the hearing of the proceedings. It is essentially, in my respectful submission, to be properly characterised as a breach of a duty of care, if anything, and vicarious liability is said to be imposed upon the State for unnamed officers in circumstances that occur well after the event that brings us here. That, in our respectful submission, is wrong in principle and should be corrected.

GUMMOW ACJ: Now, there are a couple of points I want to raise with you before you finish dealing with Ibbett, Mr Maconachie. Just look at your draft notice of appeal on page 137 for a minute.

MR MACONACHIE: Yes, your Honour.

GUMMOW ACJ: Ground 2, I take it, would not be pressed, is that right? I think you accepted what the Court - - -

MR MACONACHIE: No, your Honour, that would be pressed, but not – I am sorry, ground 2 would not be pressed.

GUMMOW ACJ: Yes.

MR MACONACHIE: I cannot.

GUMMOW ACJ: Yes. That is in the absence of a finding of conscious wrongdoing. Well, there is such a finding by the Court of Appeal.

MR MACONACHIE: There is such a finding, but the alternative was what I was addressing and I cannot.

GUMMOW ACJ: Now, is 5 not linked to 2?

MR MACONACHIE: No, it is the last point that I addressed and that is it is really a breach of a duty of care, if anything, that is sought to be made the subject of an award of exemplary damages. In respect of those officers who failed properly to re-educate, there is no finding of contumelious disregard, no finding of malice, no finding in anything that is high handed, just a disappointment that more was not done. I would want to press that.

KIRBY J: But that is not confined to that aspect. It is at large:

The Court of Appeal erred in awarding exemplary damages:

(a) without any proper finding with respect to consciousness of wrongdoing –

which is the matter you gave away.

MR MACONACHIE: Well, it would need to be narrowed, I accept that, but that is what I - - -

GUMMOW ACJ: Exactly. Now, narrowed how?

MR MACONACHIE: With respect to the acts or omissions of the police officers concerned with the re-education program. I would need to polish it a little.

GUMMOW ACJ: We understand that.

MR MACONACHIE: But that is the essence of it.

GUMMOW ACJ: Ground 5 cannot stay as it is though if you want to get leave.

MR MACONACHIE: No, it would have to be amended.

GUMMOW ACJ: But grounds 3 and 4 would appear to encapsulate what you have been putting. Now, there is no point raised in Ibbett, is there, about the Vicarious Liability Act? There is no ground raising that?

MR MACONACHIE: I am certain that is right, your Honour.

GUMMOW ACJ: And no Civil Liability Act point left in the case, I do not think. That was agitated somewhere in the State’s - - -

MR MACONACHIE: No, I did not do well below on those points.

GUMMOW ACJ: No, you did not. All right. Now, the other thing is, what do you say about your opponent’s proposition at page 151 as to costs orders?

MR MACONACHIE: We would oppose an order for full indemnity costs, but whilst I have no instructions to resist the orders otherwise sought I would have nothing to say in opposition.

GUMMOW ACJ: What about (c), “the Applicant pay the cost of this application on a full indemnity basis forthwith”?

MR MACONACHIE: If that is the order that the Court thinks is an appropriate one, I do not have anything to say to the contrary of that.

GUMMOW ACJ: Very well. Yes, thank you.

MR MACONACHIE: I am sorry, your Honour. You asked where Justice Basten dealt with a particular point. It is at page 113 of the application book.

KIRBY J: He just really endorsed the primary judge’s approach which did not make reference to guests.

MR MACONACHIE: I think that is right, your Honour, yes. They are our submissions, if the Court pleases.

GUMMOW ACJ: We do not need to hear you, Mr Petty, but we will hear from Mr Garnsey in the matter of Ibbett.

MR PETTY: If the Court pleases.

MR GARNSEY: Your Honour, my friend, Mr Maconachie, appears to be relying on an alleged liability of the State for a finding of negligence in relation to failure to train the police as a matter for appeal.

KIRBY J: He says that is separate from the liability which is visited on the State in respect of the police constable who rushed in brandishing the gun, and that is what you sued for.

MR GARNSEY: Yes, well, with respect, we did not. There was never a claim for negligence of any kind on the pleadings or litigated at trial and there was not a ground of appeal before the Court of Appeal in relation to that. It arose because my friend sought to put an argument that section 21 of the Civil Liability Act, which applied to claims for negligence and which precludes – and awards exemplary damages, applied and - - -

GUMMOW ACJ: To intentional torts.

MR GARNSEY: Yes, to intentional torts, but applied in this case because the policeman who rolled under the door had an involuntary action which was negligent in substance and so the claim was really one for negligence, though that had not been litigated at trial or on appeal. With respect, the court declined specifically to uphold that argument in relation to section 21, and that is how it arose. My friend, with respect, in the summary of argument where, on page 142 to 143, in particular paragraph 3.23, seems to suggest that that matter was relevant to vicarious liability for negligence. There was simply no liability for negligence in issue at trial or on appeal and the Court of Appeal specifically refused to let my friend rely on that to succeed under section 21 for precisely that reason.

GUMMOW ACJ: Is what you are saying going to the proposed revised ground 5 on page 137?

MR GARNSEY: Yes. Your Honour, saying that, I did not quite catch the entire modification.

KIRBY J: He wants to narrow it now to the issue of police re-education.

GUMMOW ACJ: And you say that is a negligence issue which was not on the table?

MR GARNSEY: No, and not only that, but the Court of Appeal said it was not on the table.

GUMMOW ACJ: Where do we see that?

MR GARNSEY: The references are in our summary of argument and I will - - -

KIRBY J: It was not taken into account in aggravating or giving content to the contumelious approach of the police officer?

MR GARNSEY: I think it fair to say it was by Justice Spigelman.

KIRBY J: I thought so.

MR GARNSEY: Justice Basten said he thought the alleged re-education was spurious, but in his reasoning did not rely on that as justifying exemplary damages. Justice Ipp differed from the Chief Justice and Justice Basten as to the adequacy of the re-education and said the - - -

KIRBY J: There were differences between Justice Basten and the Chief Justice on the quantification, were there not? Not ultimately but - - -

MR GARNSEY: Not ultimately, but in the manner whether one divided it up or Justice Basten said because he got specifically to the same figures as the Chief Justice on different reasoning that he - - -

KIRBY J: That itself is a matter of some concern. If there are a large number of cases of this kind, it may at least unusually be a case for special leave in order to look at the approach to questions of damage. I must admit that when I read Judge Phegan’s reasons I thought he gave a pretty good fist of the quantification of the damages, but that is obviously not the view that was taken by the majority in the Court of Appeal.

MR GARNSEY: No, your Honour, but, your Honour, the point I am seeking to make is this is an issue thrust upon us. It has been thrust upon us in one way in the Court of Appeal. It is now thrust upon us in another way that was never litigated at trial. Underlying it is section 9B of the Vicarious Liability Act which says unless the State denies liability, one is not allowed to sue the police officers, and 9D, which we have not reproduced in the materials - - -

KIRBY J: We have it from the previous case.

GUMMOW ACJ: We have it.

MR GARNSEY: - - - yes – says that such a claim must be struck out. That in itself does raise, one would have to say, questions of fundamental and general importance but it has never been worked out.

KIRBY J: But if it is not raised in this case - - -

MR GARNSEY: I am sorry, your Honour?

KIRBY J: It is not in the forefront of argument in this case, 9B?

MR GARNSEY: No, for this reason. We originally sued the two police officers and the State. The amendments came in for 9B and 9D after we have issued the process. We then discontinued against the police officers, the State having expressly admitted vicarious liability for them in an amended defence.

GUMMOW ACJ: That is why we do not get into the statute?

MR GARNSEY: That is so.

GUMMOW ACJ: On this one.

MR GARNSEY: On this one. Yes, my friend - - -

KIRBY J: Why are you concentrating on matters that are not really before us or are really peripheral to the matter before us? We have a big issue here which is, what are the principles on which the courts award exemplary damages against police officers when they do what was alleged to have happened here and found to have happened and what is the sort of damages that should be awarded?

MR GARNSEY: Yes. Well, if I could follow through on the last point, because that happened, that is, the matter proceeded only against the State, not against the individual policemen, the judge was not asked at trial to make specific findings in relation to aggravated or exemplary damages against the policemen, for instance, in relation to intent.

Now, there are certain findings and they are referred to in the Court of Appeal, but the issues were not crystallised as to the necessity to make individual findings because the matter proceeded, the State having admitted vicarious liability, without the individual positions being a matter of significance in two ways, both factually and, secondly, there is a question of whether 9B and 9D can fairly be used to preclude a claim for exemplary damages in relation to the matters that your Honour Justice Kirby has referred to earlier of general importance.

Your Honour, what I am really trying to say is the matters that were litigated at trial and in the Court of Appeal against us do not raise any matters of general importance. But on the other hand, if it is convenient for the Court to have the matters disposed of with my friend’s proposed amended notice of appeal, then on the terms that we seek - - -

KIRBY J: You will turn up.

MR GARNSEY: We will turn up, and delighted to, your Honour.

KIRBY J: Nice to know that. There is a dissent in the Court of Appeal on the question of damages and it is a matter, at least possibly, of general importance and the basis of approaching exemplary damages is significant and important in this field of endeavour, police activity.

MR GARNSEY: Yes, your Honour.

KIRBY J: So it may be that the time has come for us to pass on it.

MR GARNSEY: Well, certainly the cases referred to by Justice Ipp in New Zealand and in the observations in a decision of the House of Lords – in the speech of the House of Lords case, are significant. But can I put this additional matter in relation to that matter out of fairness to the Court of Appeal, the majority, and it is this. Your Honours, Justice Ipp, where he seems to raise matters critical of what was said by the Chief Justice as to guests and the affront to an occupier or the castle holder seems to misunderstand what the Chief Justice said and, indeed, what Justice Basten said so far as he - - -

GUMMOW ACJ: What do you say they were saying?

MR GARNSEY: They were saying that it is an affront to the occupier of land who is there if the occupier’s guests are assaulted or perturbed or molested in front of the occupier and that is a disturbance of the occupier’s rights as occupier and it is a factual conclusion as to what is included in damages for trespass to land.

KIRBY J: There is something about that in Macbeth.

MR GARNSEY: Yes, your Honour may well be right. I am afraid I am unable to match your Honour’s recollection.

GUMMOW ACJ: What do you say about this full indemnity basis? Mr Maconachie will go so far, but he will not go that far.

MR GARNSEY: Well, your Honour, there are two matters. One is the imprecision of – the State chose to admit vicarious liability at trial and that permeated through to lead away from a resolution of the issues that it now seeks special leave to appeal on. That is the first matter. The second matter is the State abandoned quite extensive ground in the summary of argument as to an attempt to somehow re-explore the criteria for exemplary damages from Uren’s Case through and to limit that by reference to a very short observation of Sir Adrian Knox in Whitfield v De Lauret. Taking all that into account, your Honour, and taking into account that the plaintiff has been kept - - -

GUMMOW ACJ: How old is the plaintiff now?

MR GARNSEY: She will be around 80, if your Honour pleases. I am sorry, she is 73 and in ill health, I am instructed.

KIRBY J: I thought I read 78, you know, and that is what Mr Maconachie said. But anyway, she is not a spring chicken.

MR GARNSEY: Yes, your Honour, and I should inform the Court out of fairness that her son did receive from Judge Black of the District Court $120,000 for the same events which has not been the subject of appeal, just to complete the picture.

KIRBY J: Well, he had special indignities heaped on him.

MR GARNSEY: Yes.

KIRBY J: He was strip searched and various other things were done.

MR GARNSEY: Yes, but if your Honour pleases we say that - - -

KIRBY J: But that is a separate case.

MR GARNSEY: - - - yes – in all the circumstances, given that the State is really proceeding to try and clarify matters in relation to the police on a number of fronts, that if leave is to be granted, it should be on the terms sought in 4.1.

GUMMOW ACJ: You would not get 4.1(b) would you? You might have to pay it back.

KIRBY J: I have been sitting here for 10 years and I do not think I can remember a full indemnity basis. Why should your client get full indemnity? Subject to Justice Gummow, I think you should just get the ordinary requirement that you get the costs.

MR GARNSEY: Well, your Honour, the State has chosen not to apply for special leave to appeal in relation to the Civil Liability Act where there were fundamental points raised and lost and it could have done that.

KIRBY J: But why should you get a stay of the orders and judgment of the trial judge – that there be no stay of those orders, when the whole point of the litigation is to contest them? It may be that - - -

MR GARNSEY: Your Honour, until my friend abandoned the contumelious disregard, conscious wrongdoing point, we had anticipated that that would be the primary matter on which he would seek leave to
appeal which involved a complete reconsideration of the High Court’s approach to exemplary damages from Uren’s Case on.

KIRBY J: The most that I have seen ordered is that the applicant be required not to disturb the costs orders below and not to seek costs in this Court.

MR GARNSEY: Well, I cannot say anything further in relation to those matters, your Honour.

GUMMOW ACJ: Very well.

MR MACONACHIE: Could I just bring to the Court’s attention one thing on the 4.1(b) matter, and I apologise for not having raised it when Justice Gummow - - -

GUMMOW ACJ: Yes.

MR MACONACHIE: There is presently adjourned in the Court of Appeal a stay application and, in our respectful submission, it is that stay application that ought to deal with it.

GUMMOW ACJ: We do not need to hear you any more on paragraph (b) I do not think.

In the matter of Ibbett there will be a grant of special leave but limited to the revised notice of appeal appearing at page 137. Ground 2 would go and ground 5 would require reformulation in the sense that appeared in exchanges with counsel in the course of the argument this morning. The grant of leave will be conditional upon the State not seeking to disturb any costs order already in favour of the respondent in the litigation in the State courts and upon terms that the State, in any event, pay the costs of the respondent of the appeal to this Court.

MR MACONACHIE: May it please the Court.

GUMMOW ACJ: The matter will be a one-day matter. Let me ask, how voluminous was the appeal book in this matter?

MR GARNSEY: Not very, your Honour. It was an application for leave and an appeal heard together. Should leave be granted – my recollection is only perhaps no more than two volumes.

MR MACONACHIE: Yes, it is not very extensive to my recollection, your Honour, but I have not turned my mind to that.

GUMMOW ACJ: Yes, thank you, gentlemen. It will be a one-day case and the parties should endeavour to have the matter available for listing, if the opportunity exists, in September.

MR GARNSEY: If your Honour pleases. Your Honour’s order in relation to the costs of the appeal, I do not think your Honour mentioned the costs of this application.

GUMMOW ACJ: There is a myth round the Bar which the Registrar tries to dispel to the best of her polite abilities which is that you need some special costs order about special leave applications. It is swept up in the appeal.

MR GARNSEY: I stand reproved, if your Honour pleases.

GUMMOW ACJ: We also have to deal with the matter of Bryant in which we said we did not need to call on Mr Petty. In that matter, although counsel for the State of New South Wales put forward an attractive argument to suggest doubt about the reasons of the Court of Appeal of New South Wales in this case, we are not convinced that the conclusion of Justice Basten, with whom Justices Beazley and McColl agreed, is attended by sufficient doubt to warrant a grant of special leave.

In the context of police torts covered by sections 8 and 9 of the Law Reform (Vicarious Liability) Act 1983 (NSW), it is unlikely that the Parliament would have contemplated that the provision of a statutory indemnity by way of vicarious liability for the conduct or “purported conduct” of police taking them outside their duties was inapt to attract the award of exemplary damages. Accordingly, in that matter special leave is refused with costs.

AT 11.57 AM THE MATTERS WERE CONCLUDED