Stuart & Anor v Kirkland-Veenstra & Anor [2008] HCATrans 217 (23 May 2008)

Last Updated: 29 May 2008

[2008] HCATrans 217

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M18 of 2008

B e t w e e n -

DAVID STUART

First Applicant

ANTHONY WOOLCOCK

Second Applicant

and

TANIA KIRKLAND-VEENSTRA

First Respondent

STATE OF VICTORIA

Second Respondent

Application for special leave to appeal

HEYDON J
KIEFEL J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 23 MAY 2008, AT 3.41 PM

Copyright in the High Court of Australia

MR J. RUSKIN, QC: If the Court pleases, in this application I appear with my learned friend, MS R.J. ORR, for the applicants. (instructed by Victorian Government Solicitor)

MR D.F.R. BEACH, SC: If the Court pleases, I appear with my learned friend, MR P. HALLEY, for the first respondent. (instructed by Slater & Gordon Lawyers)

MR M.F. WHEELAHAN, SC: If the Court pleases, I appear with my learned friend, MR M.D. RUSH, for the second respondent. (instructed by Deacons Lawyers)

HEYDON J: Mr Ruskin, can I just get one thing straight about costs. If special leave were to be granted, our present thinking is it should be on a condition or an undertaking and that is that the applicant or appellant would pay the respondents’ costs of the appeal, in any event, and would not disturb the costs orders made in the courts below. Are you content with that?

MR RUSKIN: Yes, your Honour. I have instructions to agree to that course, if that was what the Court desired.

HEYDON J: Very well. Mr Beach, you may be right and the Court of Appeal may be right in its conclusions in this case but there are, at least it seems to me, serious questions about the correctness of the Court of Appeal’s decision. The case is obviously of extreme public importance and in those circumstances we would like you to explain to us why special leave should not be granted.

MR BEACH: Thank you, your Honour. Your Honour, could I start by saying a central plank of our learned friend’s case is they say that the imposition of a duty would have a significant negative policy ramification in being likely to lead to police decisions about persons in positions such as that of Mr Veenstra being made in a detrimentally defensive frame of mind. That seems to us to be the central plank of their case and we wish to advise three points in respect of that.

First, there is no basis for this so-called detrimentally defensive frame of mind, having regard to section 123 of the Police Regulation Act. We provided a copy of that in the material yesterday. Section 123 of the Police Regulation Act is a section which transfers liability from police officers to the State of Victoria - if I could put it broadly, provided the police officer has not behaved too badly or too far outside the scope of his or her employment.

We have also provided the Court with extracts from the Victorian Court of Appeal decision in State of Victoria v Horvath which deals with the construction of this section. The section is not, at first blush, easy to construe but the Court of Appeal have taken on that task in the case of State of Victoria v Horvath. I think I can summarise by saying, effectively, it was a section designed to take away the worry of serving good competent police officers that they might be sued for torts in the course of their employment and provided, as I say, they do not behave too badly, to impose that liability on the State of Victoria.

HEYDON J: However, I imagine police officers who, while not actually committing torts because of section 123, have so acted as to cause the State of Victoria to be liable in tort would not regard that as a good thing to have on their records.

MR BEACH: It may be so, but the fear that there will be detrimentally defensive frame of mind type decisions is, at least in part, in our submission, obviated by the existence of section 123 of the Police Regulation Act. The second point we want in respect of this proposition is that considerations of this kind have already been held by this Court in D’Orta-Ekinaike not to provide support in principle for the existence of an immunity, in that case, of course, advocate’s immunity.

Your Honours will be familiar with the arguments that the advocate’s immunity was once supported on the basis that court cases would run longer as people cross-examined witnesses to death for fear of being sued one day for not asking question 1076 in a line of 1077 questions. The third point we wish to make in - - -

HEYDON J: It may well be true.

MR BEACH: But the court has already said in a case concerning immunity from a suit that is not a proper basis for immunity. Detrimentally defensive frames of minds of barristers is not a proper basis for giving barristers immunity. Similarly, we would say it is not a proper basis for either giving police officers immunity or denying the existence of a duty of care.

The third point we wish to make is that a so-called detrimentally defensive frame of mind in this case would probably on the evidence, and we have set out some of it in our outline of argument, have led to the survival of Mr Veenstra, which is neither a negative policy ramification, significant or otherwise.

The next area I wish to deal with, your Honours is your Honours will see we have identified six reasons why we say special leave should not be granted and I hear what your Honour Justice Heydon says about there being a point, perhaps, as to whether or not the police cases should have been applied or the statutory authority cases should have been applied. We would say that in any event on an application of the police cases nothing in those cases would have told against the existence of a duty.

The police cases hold no duty of care being owed by police to victims of crime, in some cases, witnesses of crime, in other cases, or to people being investigated in respect of criminal conduct and they so hold for three reasons. The first is that it would inhibit the fearless investigation of criminal activity. The second is that it would impose a duty in respect of an indeterminate class of people and the third relates to the suggestion of a conflict of duties. How can one have a duty, potentially, to a victim and to a criminal and to investigate crime at the same time?

We would say that none of these underlying rationales for the police cases exist in the present case. First, dealing with inconsistency – and when I talk of the police cases I also mean to include Sullivan v Moody. In Sullivan v Moody the Court highlighted the inconsistencies between duties owed by the respondents concerning the reporting of suspected sexual abuse and a suggested duty owed to a person who might be a suspect. The inconsistency was obvious but we say, of course, there is no such inconsistency in this case.

This was a case where police officers came across a man in a car park. If we are right, a duty was owed to him. One cannot point to any other person in the same way that one could in Sullivan v Moody and say there is a duty owed at the same time in respect of the same matter to a person, the obligations of which are inconsistent with owing a duty to Mr Veenstra. As to indeterminacy, it is, we would say, obvious that if one was to hold that police officers owed a duty in respect of the investigation of crime and to potential victims the class would be indeterminate. It could be the whole world.

What is put here is that a duty was owed only to Mr Veenstra and those who might suffer nervous shock, consistently with what this Court has said in Annetts and that that duty arises because of the circumstances in which the police officers came into contact with Mr Veenstra and the existence of the power in section 10 of the Mental Health Act which gave them power to do something about it. So there was no indeterminacy of the kind that is spoken of in the police cases or indeed in Sullivan v Moody.

As for the inhibiting of the fearless investigation of crime, this case has nothing to do with the investigation of crime, fearlessly investigated or otherwise. So we say that even if the Court of Appeal was wrong to focus upon the statutory authority cases rather than the police cases, a proper
analysis of the police cases shows that there really is no point. It might be suggested by my learned friend that the court misapplied the statutory authority cases, but of course that would not be a reason for granting special leave here.

A misapplication of settled and accepted principles is not, in our submission, a matter about which was ordinarily suitable for a grant of special leave, so having put to one side the application of the statutory authority cases we say that even if the court had gone on to give greater consideration to the police cases, it would not have led to a different result. For those reasons, the Court of Appeal is, in our submission – the decision is correct.

I said I would not refer to the six reasons which we have outlined in our submissions as to why special leave should not be granted, but your Honours will recall that the first one relates to the fact that, as we put it, the Court of Appeal decision was right because the matter had to be remitted to the learned County Court judge, he having usurped the function of the jury, the fact-finding tribunal in this case, and determined some facts for the purposes of determining that there was no duty.

Our learned friends say in their response that the facts that we refer to are a distraction. To that we would say two things. First, the facts have to be found by the tribunal, in this case the jury, before one can assert with any confidence that no duty was owed. To do otherwise would encompass the acceptance of a position which would mean that no factual scenario when police find people in the position of Mr Veenstra would ever lead to a duty.

For example, the hypothetical example given by Chief Justice Warren at paragraph 75 that if one changed the facts ever so slightly to have the police turn up with the engine running, the exhaust into the car and smoke everywhere, could it seriously be suggested that those facts, coupled with the power that the police have under section 10, would not give rise to a duty. In our submission, not, and that is why the facts are relevant and why the matter does need to go back to the County Court in any event, whatever this Court thinks of our learned friend’s other arguments about the application of the police cases over and above the statutory authority cases. Those are the only additional matters that I wished to bring to the Court’s attention.

HEYDON J: Yes, thank you, Mr Beach. Mr Wheelahan, you are in firm alliance with Mr Ruskin?

MR WHEELAHAN: We are, if the Court pleases.

HEYDON J: Yes. We are of opinion that there should be a grant of special leave in this matter on the basis that the costs of the first respondent will be dealt with as Mr Ruskin indicated at the outset. How long do you think it will take, Mr Ruskin?

MR RUSKIN: We would submit it would take a day and a little bit, so could we say a day and a half.

HEYDON J: Yes. Do you agree with that, Mr Beach?

MR BEACH: I would have thought it could be done within a day, your Honour.

HEYDON J: But I think it is the sort of case where – I mean, lots of cases that can be done in a day and half can be done in a day or half an hour, but it is not the sort of case where argument should be skimped. The other thing is I imagine Victoria will be liaising closely with you, Mr Ruskin, on the form of the submissions.

MR RUSKIN: Yes. We will obviously try not to overlap in any way.

HEYDON J: Yes, very well. Thank you, gentlemen, and counsel, generally.

The Court will adjourn until 10.15 am on Tuesday, 10 June 2008 in Canberra.

AT 3.53 PM THE MATTER WAS CONCLUDED