case_text: I do not consider that the applicants have made out any reasonable cause to believe they have an arguable case for the reading down of s 8 of the AFP Act . I should add for the sake of completeness that it may be the case that, even if the AFP Act were to be read down as contended for, it would not prevent members of the AFP from making the request they did in the absence of legislative authority: cf Barton v The Commonwealth [1974] HCA 20 ; (1974) 131 CLR 477 at 490. It is unnecessary to express any view on this. 72 A distinct way in which the applicants had proposed challenging the propriety of the AFP members' conduct in making the two requests was to contend that that conduct did not comply with the requirements of the Death Penalty Charge Guide such that, arguably, those members committed disciplinary offences under reg 4 of the Australian Federal Police (Discipline) Regulations 1979. It was not made at all apparent how, even if such disciplinary offences could have been made out, this would have availed the applicants. 73 As I understand the applicants' supplementary submissions they no longer rely upon breach of the Guide and Discipline Regulations. However, I should make the following comments in any event. First, and subject to what I later say, the Guide, on its face, may well be only of indirect relevance in this matter in that its substantive content is directed to how AFP members are required to act in relation to requests for assistance made of it by a foreign country. It is silent on requests made by the AFP of an overseas law enforcement agency. Secondly even if the standards prescribed in the Guide (with appropriate adaptation) be taken as the operative ones when a request is made by the AFP and I consider this was probably their intendment the conduct of the officers concerned in this case (whoever they may have been beyond Mr Hunniford) could not properly be said to have been relevantly in breach of the Guide as it related to "police to police" cooperation. The requests made and the information provided pre-dated the INP investigations and the arrests and detention of the applicants. In consequence it pre-dated any "charges being laid which may attract the death penalty" irrespective of how the term "charges" should be interpreted in the Guide as it applied to the formalities of the Indonesian legal system. Finally there was, as I have indicated, authority for the AFP members to make their request under the AFP Act and that in turn was translated into a practical arrangement with Indonesia in the Police Cooperation MoU under which, according to Mr Watson, the actual requests were made. The MoU is not in evidence before me for the reasons I earlier gave. Nonetheless, counsel for the applicant was provided with the opportunity to inspect the MoU or to have the Court inspect it, but declined to take either course. Counsel for the Commissioner has nonetheless indicated to the Court that the terms of the MoU contemplated the very provision of information by the AFP in circumstances such as in this matter and it could properly be said of the MoU that there was a standing request by Indonesia for such assistance. In the above circumstances, I am prepared to accept (a) that the applicants cannot claim reasonably to believe that the information provided to Indonesia was totally unsolicited and (b) that, possibly, the AFP in providing the information was acting upon a general request by Indonesia. However, for the reasons I gave above, I do not consider it to be of any consequence whether the request was made by the AFP or by Indonesia. The AFP members acted in conformity with the Death Penalty Charge Guide. 74 Despite their various and varying formulations of a potential cause of action based on what compendiously I have called acting without lawful authority, I am not satisfied that the applicants have been able to identify or articulate any reasonable cause to believe that they are or may be entitled to obtain relief in this Court under this rubric.


case_outcome: cited

case_text: The applicants initially sought to contend that they had in Australian law an enforceable right to life and not to be executed. The ICCPR and the Second Optional Protocol were invoked to this end. This was later abandoned, as it had to be. The provisions of an international treaty do not form part of Australian law merely because Australia is a ratifying party to it. For that reason neither the ICCPR nor the Second Optional Protocol of itself "operate[s] to give rights to or impose duties on members of the Australian community: Minogue v Human Rights and Equal Opportunity Commission [1999] FCA 85 ; (1999) 84 FCR 438 at [35] ; see also Dietrich v The Queen [1992] HCA 57 ; (1992) 177 CLR 292 at 305-306.


case_text: Even if (a) an obligation of procedural fairness could arise in the setting of present concern (see below) and (b) the alleged duty to be advised could properly be described as being procedural and not substantive in character: see Attorney-General (NSW) v Quin [1990] HCA 21 ; (1990) 170 CLR 1 at 22; Minister for Immigration and Ethnic Affairs v Teoh [1995] HCA 20 ; (1995) 183 CLR 273 ("Teoh") at 291; the particular expectation in question, arising as it allegedly did, was not one entertained by Scott Rush: see Re Minister for Immigration and Multicultural and Indigenous Affairs; ex parte Lam ; [2003] HCA 6 ; (2003) 214 CLR 1 ("Lam") at [36], [90]-[93], [95] and [145]. In consequence, Scott Rush would have been unable to show practical injustice done to himself: Lam , at [36]. As I understand it, from the applicants' supplementary written submissions, no reliance is now being placed by Scott Rush on a possible claim so framed. 82 In light of the decisions of the High Court in Teoh and in Lam it is clear that the doctrine of substantive legitimate expectation is for the present not part of Australian law. For present purposes I need only refer to the joint judgment of McHugh and Gummow JJ in Lam at [66]-[67]: "The doctrine of 'legitimate expectation' has been developed in England so as to extend to an expectation that the benefit in question will be provided or, if already conferred, will not be withdrawn or that a threatened disadvantage or disability will not be imposed. This gives the doctrine a substantive, as distinct from procedural, operation. The earlier English decisions with respect to 'legitimate expectations' were discussed by Mason CJ in Attorney-General (NSW) v Quin and by McHugh J in Minister for Immigration and Ethnic Affairs v Teoh . In Quin , Mason CJ observed: 'In the cases in this Court in which a legitimate expectation has been held entitled to protection, protection has taken the form of procedural protection, by insisting that the decision-maker apply the rules of natural justice. In none of the cases was the individual held to be entitled to substantive protection in the form of an order requiring the decision-maker to exercise his or her discretion in a particular way. The prevailing view in this Court has been, as Stephen J observed in Salemi [v MacKellar [No 2] ], that: '[t]he rules of natural justice are "in a broad sense a procedural matter"", echoing the words of Dixon CJ and Webb J in Commissioner of Police v Tanos .' That remains the position in this Court and nothing in this judgment should be taken as encouragement to disturb it by adoption of recent developments in English law with respect to substantive benefits or outcomes."


case_outcome: considered

case_title: Minister for Immigration and Ethnic Affairs v Teoh [1995] HCA 20 ; (1995) 183 CLR 273


case_outcome: applied

case_title: Re Minister for Immigration and Multicultural and Indigenous Affairs; ex parte Lam ; [2003] HCA 6 ; (2003) 214 CLR 1


case_text: For present purposes all I need note of the "doctrine of substantive legitimate expectation" is what was said of it in the Court of Final Appeal of Hong Kong in Ng Siu Tung v Director of Immigration at [92]: "The doctrine recognizes that, in the absence of any overriding reason of law or policy excluding its operation, situations may arise in which persons may have a legitimate expectation of a substantive outcome or benefit, in which event failing to honour the expectation may, in particular circumstances, result in such unfairness to individuals as to amount to an abuse of power justifying intervention by the court. Generally speaking, a legitimate expectation arises as a result of a promise, representation, practice or policy made, adopted or announced by or on behalf of government or a public authority." This in turn drew upon the reasons of Lord Woolf MR (for the court) in R v North and East Devon Health Authority; Ex parte Coughlan [2001] QB 213; see also Craig, Administrative Law, 639-656 (5 th ed 2003); Sedley, "The last 10 years' development of English public law", (2004) 12 Aust Jo of Admin Law 9 at 18-20.


case_text: What is immediately apparent in the above is that it attempts neither to locate the alleged duty to Scott Rush in the context of an ongoing AFP investigation nor to justify the imposition of the duty in such a context. Rather, it addresses the question whether the circumstances of Lee Rush's providing information to the AFP founded a reasonable expectation in Lee Rush that the AFP would not use, and an implied undertaking (though to whom is not stated) not to use, that information in a particular way. While that inquiry may be a step in the fashioning of an action for breach of confidence by Lee Rush, or a possible duty of care to Lee Rush (if, hypothetically, the unauthorised disclosure of the information would expose Mr Rush to a reasonably foreseeable risk: cf Swinney v Chief Constable of Northumbria Police [1997] QB 464), it does not lead necessarily or obviously to potential relief for Scott Rush in a negligence action by him. At best it hints at Lee Rush's having put the AFP in a position of power over Scott Rush, a position which carried with it an obligation not to exercise that power adversely to him. What I should emphasise as well is that whatever claims, if any, Lee Rush might be able to mount against an officer or officers of the AFP in consequence of their dealings and I do not suggest that the present circumstances suggest he might have any such claims he is not a party to this application.


case_text: I referred above to the absence of reference to the context in which the duty allegedly owed Scott Rush is said to arise for this reason. In Tame v New South Wales [2002] HCA 35 ; (2002) 211 CLR 317 ("Tame") at [231] Gummow and Kirby JJ observed in dicta: "It is unlikely that an investigating police officer owes a duty of care to a person whose conduct is under investigation. Such a duty would appear to be inconsistent with the police officer's duty, ultimately based in the statutory framework and anterior common law by which the relevant police service is established and maintained, fully to investigate the conduct in question." Their Honours cited in support of this view the decisions (inter alia) of Hill v Chief Constable of West Yorkshire Police [1987] UKHL 12 ; [1989] AC 53 ("Hill") at 63-65 and Sullivan v Moody [2001] HCA 59 ; (2001) 207 CLR 562 at [60] . Similar views were expressed in Tame by McHugh J at [125]-[126]; Hayne J at [298] and by Callinan J at [335]-[336]. 92 It equally is well recognised that to impose common law duties of care on police officers to a particular member or members of the public in addition to their duty to the general public can, on occasion, be "inconsistent with the proper and effective discharge of [their public] responsibilities": cf Sullivan v Moody , at [62]; (whether those responsibilities arise under a statute such as the AFP Act or at common law) and to be impermissible for that reason. As the observations of Gummow and Hayne JJ in Tame illustrate, this inconsistency is often revealed where, in a setting in which injury is foreseeable if care is not taken in the conduct of a police investigation, a suspect, a victim, or a third party injured by acts or omissions of the police seeks to raise a claim in negligence against the police: Hill , above; Thompson v Vincent [2005] NSWCA 219 at [152] - [154] ; Batchelor v State of Tasmania [2005] TASSC 11 ; Cran v State of New South Wales [2004] NSWCA 92 ; (2004) 62 NSWLR 95; see also D'Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12 ; (2005) 214 ALR 92 at [101] ; State of New South Wales v Paige [2002] NSWCA 235 ; (2002) 60 NSWLR 371 at [115] - [117] . Save in exceptional circumstances: cf Hill at 62; Batchelor , above; and in North America see e.g. Doe v Board of Commissioners for Municipality of Metropolitan Toronto (1990) 72 DLR 4 th 580 ("Doe"); Eaton, "Liability of Municipality or Other Governmental Unit for Failure to Provide Police Protection from Crime" 90 ALR 5 th 273 at SS4 ; 57 Am Jur 2d, "Municipal, County, School and State Tort Liability", SSSS407-418; such attempts have been unsuccessful. 95 Hill's case, I would note, has been referred to approvingly in some number of High Court judgments: see e.g. Sullivan v Moody at [57]; Tame at [231], [335]; see also Thompson v Vincent at [153]-[154]; Cran v State of New South Wales , at [33] ff; but cf contra Zalewski v Turcarolo [1995] 2 VR 562 a decision which pre-dated Sullivan v Moody . 104 As I earlier noted, the judgment of Gummow and Kirby JJ in Tame relied on Sullivan at [60] above when expressing the view that it was unlikely that an investigating police officer would owe a duty of care to a person whose conduct was under investigation. Sullivan equally was invoked by Hayne J and Callinan J to the same end in Tame . In its apparent endorsement of Hill at [57] in the above quotation, Sullivan along with Hill and D'Orta-Ekenaike v Victoria Legal Aid above, have been treated by the New South Wales Court of Appeal as recognising that there is "an area in which it has been held that the public law duties of police are not consonant with recognition of a private law duty of care in favour of a particular member of the public": Thompson v Vincent at [153]-[154]. Again, as I have already noted, Tame and its debt to Sullivan and Hill were relied upon again by the New South Wales Court of Appeal in Cran v State of New South Wales in privileging the greater public interested accorded unimpeded police investigation over the interest of a person suffering foreseeable harm as a result of an allegedly careless omission in the conduct of an investigation.


case_text: I referred above to the absence of reference to the context in which the duty allegedly owed Scott Rush is said to arise for this reason. In Tame v New South Wales [2002] HCA 35 ; (2002) 211 CLR 317 ("Tame") at [231] Gummow and Kirby JJ observed in dicta: "It is unlikely that an investigating police officer owes a duty of care to a person whose conduct is under investigation. Such a duty would appear to be inconsistent with the police officer's duty, ultimately based in the statutory framework and anterior common law by which the relevant police service is established and maintained, fully to investigate the conduct in question." Their Honours cited in support of this view the decisions (inter alia) of Hill v Chief Constable of West Yorkshire Police [1987] UKHL 12 ; [1989] AC 53 ("Hill") at 63-65 and Sullivan v Moody [2001] HCA 59 ; (2001) 207 CLR 562 at [60] . Similar views were expressed in Tame by McHugh J at [125]-[126]; Hayne J at [298] and by Callinan J at [335]-[336]. 92 It equally is well recognised that to impose common law duties of care on police officers to a particular member or members of the public in addition to their duty to the general public can, on occasion, be "inconsistent with the proper and effective discharge of [their public] responsibilities": cf Sullivan v Moody , at [62]; (whether those responsibilities arise under a statute such as the AFP Act or at common law) and to be impermissible for that reason. As the observations of Gummow and Hayne JJ in Tame illustrate, this inconsistency is often revealed where, in a setting in which injury is foreseeable if care is not taken in the conduct of a police investigation, a suspect, a victim, or a third party injured by acts or omissions of the police seeks to raise a claim in negligence against the police: Hill , above; Thompson v Vincent [2005] NSWCA 219 at [152] - [154] ; Batchelor v State of Tasmania [2005] TASSC 11 ; Cran v State of New South Wales [2004] NSWCA 92 ; (2004) 62 NSWLR 95; see also D'Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12 ; (2005) 214 ALR 92 at [101] ; State of New South Wales v Paige [2002] NSWCA 235 ; (2002) 60 NSWLR 371 at [115] - [117] . Save in exceptional circumstances: cf Hill at 62; Batchelor , above; and in North America see e.g. Doe v Board of Commissioners for Municipality of Metropolitan Toronto (1990) 72 DLR 4 th 580 ("Doe"); Eaton, "Liability of Municipality or Other Governmental Unit for Failure to Provide Police Protection from Crime" 90 ALR 5 th 273 at SS4 ; 57 Am Jur 2d, "Municipal, County, School and State Tort Liability", SSSS407-418; such attempts have been unsuccessful. 94 The progenitor of this principle was the decision of the House of Lords in Hill . After concluding that, in the circumstances of that case, the ordinary principles of negligence would not admit of a duty of care to a victim of crime, Lord Keith went on to indicate (at 63) that there was "another reason" why an action for damages in negligence should not be against the police in the circumstances of that case and that was "public policy". His Lordship then observed: "The general sense of public duty which motivates police forces is unlikely to be appreciably reinforced by the imposition of such liability so far as concerns their function in the investigation and suppression of crime. From time to time they make mistakes in the exercise of that function, but it is not to be doubted that they apply their best endeavours to the performance of it. In some instances the imposition of liability may lead to the exercise of a function being carried on in a detrimentally defensive frame of mind. The possibility of this happening in relation to the investigative operations of the police cannot be excluded. Further it would be reasonable to expect that if potential liability were to be imposed it would be not uncommon for actions to be raised against police forces on the ground that they had failed to catch some criminal as soon as they might have done, with the result that he went on to commit further crimes. While some such actions might involve allegations of a simple and straightforward type of failure for example that a police officer negligently tripped and fell while pursuing a burglar others would be likely to enter deeply into the general nature of a police investigation, as indeed the present action would seek to do. The manner of conduct of such an investigation must necessarily involve a variety of decisions to be made on matters of policy and discretion, for example as to which particular line of inquiry is most advantageously to be pursued and what is the most advantageous way to deploy the available resources. Many such decisions would not be regarded by the courts as appropriate to be called in question, yet elaborate investigation of the facts might be necessary to ascertain whether or not this was so. A great deal of police time, trouble and expense might be expected to have to be put into the preparation of the defence to the action and the attendance of witnesses at the trial. The result would be a significant diversion of police manpower and attention from their most important function, that of the suppression of crime. Closed investigations would require to be reopened and retraversed, not with the object of bringing any criminal to justice but to ascertain whether or not they had been competently conducted. I therefore consider that Glidewell LJ, in his judgment in the Court of Appeal [1988] QB 60, 76 in the present case, was right to take the view that the police were immune from an action of this kind on grounds similar to those which in Rondel v Worsley [1967] UKHL 5 ; [1969] 1 AC 191 were held to render a barrister immune from actions for negligence in his conduct of proceedings in court." 101 It is, in my view, unnecessary in this matter to express a concluded view on whether, as in England, a special though not unqualified, immunity rule applies to police activities "in the investigation and suppression of crime": Costello's case at 563; or whether the duty of care question is to be answered by applying to police those principles now generally applied to public authorities in the discharge of their statutory and, if relevant, common law functions: see Graham Barclay Oysters Pty Ltd v Ryan . I am of this view because both binding and persuasive authority lead inevitably to the conclusion that this application must fail. However, I would respectfully suggest that more recent English authority demonstrating "reluctance to endorse the full breadth of what Hill v Chief Constable of West Yorkshire ... has been thought to lay down" on the immunity of police: cf Brooks v Commissioner of Police , at [3], [6] and [28]; and the difficulty in providing criteria to mark out exceptions to that immunity: see e.g. Costello ; Cowan v The Chief Constable for Avon & Somerset Constabulary [2001] EWCA Civ 1699 ; tell in favour of avoiding any special rule applicable to police, while still acknowledging that the police function can have distinctive characteristics and purposes which in many settings may exclude the concurrent operation of a duty of care at common law: cf Doe , 72 DLR 4 th at 584-586. 104 As I earlier noted, the judgment of Gummow and Kirby JJ in Tame relied on Sullivan at [60] above when expressing the view that it was unlikely that an investigating police officer would owe a duty of care to a person whose conduct was under investigation. Sullivan equally was invoked by Hayne J and Callinan J to the same end in Tame . In its apparent endorsement of Hill at [57] in the above quotation, Sullivan along with Hill and D'Orta-Ekenaike v Victoria Legal Aid above, have been treated by the New South Wales Court of Appeal as recognising that there is "an area in which it has been held that the public law duties of police are not consonant with recognition of a private law duty of care in favour of a particular member of the public": Thompson v Vincent at [153]-[154]. Again, as I have already noted, Tame and its debt to Sullivan and Hill were relied upon again by the New South Wales Court of Appeal in Cran v State of New South Wales in privileging the greater public interested accorded unimpeded police investigation over the interest of a person suffering foreseeable harm as a result of an allegedly careless omission in the conduct of an investigation.


case_text: I referred above to the absence of reference to the context in which the duty allegedly owed Scott Rush is said to arise for this reason. In Tame v New South Wales [2002] HCA 35 ; (2002) 211 CLR 317 ("Tame") at [231] Gummow and Kirby JJ observed in dicta: "It is unlikely that an investigating police officer owes a duty of care to a person whose conduct is under investigation. Such a duty would appear to be inconsistent with the police officer's duty, ultimately based in the statutory framework and anterior common law by which the relevant police service is established and maintained, fully to investigate the conduct in question." Their Honours cited in support of this view the decisions (inter alia) of Hill v Chief Constable of West Yorkshire Police [1987] UKHL 12 ; [1989] AC 53 ("Hill") at 63-65 and Sullivan v Moody [2001] HCA 59 ; (2001) 207 CLR 562 at [60] . Similar views were expressed in Tame by McHugh J at [125]-[126]; Hayne J at [298] and by Callinan J at [335]-[336]. 92 It equally is well recognised that to impose common law duties of care on police officers to a particular member or members of the public in addition to their duty to the general public can, on occasion, be "inconsistent with the proper and effective discharge of [their public] responsibilities": cf Sullivan v Moody , at [62]; (whether those responsibilities arise under a statute such as the AFP Act or at common law) and to be impermissible for that reason. As the observations of Gummow and Hayne JJ in Tame illustrate, this inconsistency is often revealed where, in a setting in which injury is foreseeable if care is not taken in the conduct of a police investigation, a suspect, a victim, or a third party injured by acts or omissions of the police seeks to raise a claim in negligence against the police: Hill , above; Thompson v Vincent [2005] NSWCA 219 at [152] - [154] ; Batchelor v State of Tasmania [2005] TASSC 11 ; Cran v State of New South Wales [2004] NSWCA 92 ; (2004) 62 NSWLR 95; see also D'Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12 ; (2005) 214 ALR 92 at [101] ; State of New South Wales v Paige [2002] NSWCA 235 ; (2002) 60 NSWLR 371 at [115] - [117] . Save in exceptional circumstances: cf Hill at 62; Batchelor , above; and in North America see e.g. Doe v Board of Commissioners for Municipality of Metropolitan Toronto (1990) 72 DLR 4 th 580 ("Doe"); Eaton, "Liability of Municipality or Other Governmental Unit for Failure to Provide Police Protection from Crime" 90 ALR 5 th 273 at SS4 ; 57 Am Jur 2d, "Municipal, County, School and State Tort Liability", SSSS407-418; such attempts have been unsuccessful. 95 Hill's case, I would note, has been referred to approvingly in some number of High Court judgments: see e.g. Sullivan v Moody at [57]; Tame at [231], [335]; see also Thompson v Vincent at [153]-[154]; Cran v State of New South Wales , at [33] ff; but cf contra Zalewski v Turcarolo [1995] 2 VR 562 a decision which pre-dated Sullivan v Moody . 102 Sullivan v Moody did not involve an allegation of negligence against police officers. Its concern was with whether medical practitioners and social workers who had examined children for evidence of sexual abuse by their fathers in the setting of a statutory regime containing provisions for the protection of children (including mandatory reporting to a government department of reasonable suspicion of child abuse), owed a duty of care to protect such fathers in the conduct of their examinations, investigations and reporting. It was held unanimously by the High Court that they did not. The plaintiff fathers had alleged that, as a result of negligent examination, diagnosis and reporting, they had suffered shock, distress, psychiatric injury and consequential personal and financial loss. Unsurprisingly, given the opinions expressed by the Court, Sullivan v Moody has been influential in this country in later decisions and judicial commentary on police liability for negligence in the conduct of investigations. 103 In rejecting the duty of care argued for in Sullivan v Moody the Court observed: "55. ... A duty of the kind alleged should not be found if that duty would not be compatible with other duties which the respondents owed. 56. How may a duty of the kind for which the appellants contend rationally be related to the functions, powers and responsibilities of the various persons and authorities who are alleged to owe that duty? A similar problem has arisen in other cases. The response to the problem in those cases, although not determinative, is instructive. 57. In Hill v Chief Constable of West Yorkshire , the House of Lords held that police officers did not owe a duty to individual members of the public who might suffer injury through their careless failure to apprehend a dangerous criminal. Lord Keith of Kinkel pointed out that the conduct of a police investigation involves a variety of decisions on matters of policy and discretion, including decisions as to priorities in the deployment of resources. To subject those decisions to a common law duty of care, and to the kind of judicial scrutiny involved in an action in tort, was inappropriate. ... 60. The circumstance that a defendant owes a duty of care to a third party, or is subject to statutory obligations which constrain the manner in which powers or discretions may be exercised, does not of itself rule out the possibility that a duty of care is owed to a plaintiff. People may be subject to a number of duties, at least provided they are not irreconcilable. A medical practitioner who examines, and reports upon the condition of, an individual, might owe a duty of care to more than one person. But if a suggested duty of care would give rise to inconsistent obligations, that would ordinarily be a reason for denying that the duty exists. Similarly, when public authorities, or their officers, are charged with the responsibility of conducting investigations, or exercising powers, in the public interest, or in the interests of a specified class of persons, the law would not ordinarily subject them to a duty to have regard to the interests of another class of persons where that would impose upon them conflicting claims or obligations . ... 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:" emphasis added. 104 As I earlier noted, the judgment of Gummow and Kirby JJ in Tame relied on Sullivan at [60] above when expressing the view that it was unlikely that an investigating police officer would owe a duty of care to a person whose conduct was under investigation. Sullivan equally was invoked by Hayne J and Callinan J to the same end in Tame . In its apparent endorsement of Hill at [57] in the above quotation, Sullivan along with Hill and D'Orta-Ekenaike v Victoria Legal Aid above, have been treated by the New South Wales Court of Appeal as recognising that there is "an area in which it has been held that the public law duties of police are not consonant with recognition of a private law duty of care in favour of a particular member of the public": Thompson v Vincent at [153]-[154]. Again, as I have already noted, Tame and its debt to Sullivan and Hill were relied upon again by the New South Wales Court of Appeal in Cran v State of New South Wales in privileging the greater public interested accorded unimpeded police investigation over the interest of a person suffering foreseeable harm as a result of an allegedly careless omission in the conduct of an investigation. 114 There is a short answer to the alleged duty. Even if it be the case that AFP officers said they would act, or had acted, in a particular way towards Scott Rush at the airport and failed to do so, neither their representations and their failure to act nor the circumstances of the Myer-Patching conversations could give rise to a duty such as is alleged. The proposed duty would be inconsistent with the duty owed by the AFP to the public at large in the conduct of its investigations into the Bali drug trafficking operation: cf Sullivan v Moody at [60]. 115 I have already indicated that the AFP officers concerned did not act in contravention of the AFP Act in deciding to, and in making, the 8 and 12 April 2005 communications to the INP. They were acting in performance of their functions under the AFP Act and consonantly with ministerial directions. The communications made had a proper and rational purpose in the furtherance of that police investigation. The proposed duty would only qualify and impede the conduct of the investigation embarked upon by the AFP. It would elevate the interests of Scott Rush over the public interest that the AFP was serving under its legislation to the extent that the two collided, as it did in the making of the request to the INP. 116 If, as the other applicants seem to suggest albeit faintly, a like duty was owed them its obvious effect would have been to compromise the investigation itself in an important respect. No assistance of the type sought could have been asked of the INP notwithstanding that the investigation involved transnational criminal activity and that the assistance in fact sought, as I have noted, was for a proper purpose in furtherance of the AFP's statutory functions. 117 In the cases of Scott Rush and of the other applicants the duty contended for cannot be reconciled with the nature and purpose of the functions being exercised by the AFP officers concerned, the discretions conferred on them in virtue of the task they were involved in, and the policy directive they were, apparently, implementing: cf Sullivan v Moody at [62]. Accordingly, to adopt Santow JA's observations in Cran v State of New South Wales at [63], the greater public interest accorded unimpeded investigation by the AFP precludes in this case any duty of care owed to Scott Rush or to the other applicants. Such is the current law in this country and the policy informing it, that the interests of the applicants were subordinated to the public interests served by the AFP in their conduct of the investigation in question.


case_text: Before I express my own views on this, I should emphasise the following. Bearing in mind that this is an application for preliminary discovery where information about the possible commission of a tort is being sought, exceptional caution must be exercised before reaching a conclusion that, whatever the information that might be disclosed as a result of an order for information discovery, that information could make no difference for the reason that the duty contended for could not even arguably be imposed on AFP members when conducting the drug trafficking investigation in question: cf the observations of Lord Bingham in Brooks v Commissioner of Police for the Metropolis [2005] UKHL 24 ; [2005] 1 WLR 1495 at [4] . 90 As noted earlier, there are conflicting versions as to the substance of the conversations between Robert Myers (on behalf of Lee Rush) and Mr Patching of the AFP. The alleged duty of care is premised upon acceptance of Myers' version of what transpired. For present purposes, and dealing with the matter on the basis most favourable to the applicants, I am prepared to assume the correctness of that version for the purposes of this application. Nonetheless, I am satisfied from what is already known about the circumstances surrounding Myers' communications with Patching, that the negligence claim as it has been framed would in any event be unarguable irrespective of any further information relevant to it that might conceivably be forthcoming if an order for information discovery were to be made. Accordingly, I am satisfied for the purposes of O 15A r 3 that no such proceeding for negligence could properly be brought in this Court and, for the purposes of O 15A r 6, there is no reasonable cause to believe that Scott Rush may have a right to obtain relief on the basis proposed. 98 What is noticeable in the case law of common law countries illustrated above (including that of England) is that it is accepted both that positive dangerous behaviour by police can still attract a duty of care and that, particularly in cases of omissions to act, the police may nonetheless have, or have assumed such a particular responsibility to take care of a person as to give rise to a "special relationship" with that person which attracts a duty of care to him or her: see e.g. Brooks v Commissioner of Police at [22] and [29]; Costello v Chief Constable of the Northumbria Police esp per May LJ; in US jurisdictions the "special relationship" exception is well recognised in a range of otherwise negligence exempt areas of police activity, see e.g. Eaton, above at SS4 ; see also 57 Am Jur 2d, above, at SS410 ff. What equally is notable is the varying significance given to the particular "operational" context in which the relationship giving rise to a duty of care is said to exist. Hence the ready imposition of a duty of care to persons in police custody: Hall v Whatmore , above; and the corresponding reluctance to impose such a duty in the context of the conduct of a criminal investigation D'Orta Ekenaike v Victoria Legal Aid at [101]-[102]; see also Cran v State of New South Wales , above; or in preventing a breach of the peace: Thompson v Vincent , above. 101 It is, in my view, unnecessary in this matter to express a concluded view on whether, as in England, a special though not unqualified, immunity rule applies to police activities "in the investigation and suppression of crime": Costello's case at 563; or whether the duty of care question is to be answered by applying to police those principles now generally applied to public authorities in the discharge of their statutory and, if relevant, common law functions: see Graham Barclay Oysters Pty Ltd v Ryan . I am of this view because both binding and persuasive authority lead inevitably to the conclusion that this application must fail. However, I would respectfully suggest that more recent English authority demonstrating "reluctance to endorse the full breadth of what Hill v Chief Constable of West Yorkshire ... has been thought to lay down" on the immunity of police: cf Brooks v Commissioner of Police , at [3], [6] and [28]; and the difficulty in providing criteria to mark out exceptions to that immunity: see e.g. Costello ; Cowan v The Chief Constable for Avon & Somerset Constabulary [2001] EWCA Civ 1699 ; tell in favour of avoiding any special rule applicable to police, while still acknowledging that the police function can have distinctive characteristics and purposes which in many settings may exclude the concurrent operation of a duty of care at common law: cf Doe , 72 DLR 4 th at 584-586.


case_text: It is widely accepted in common law jurisdictions that, at common law, police officers owe to the general public a duty to enforce the criminal law and, correspondingly, that latitude necessarily must be given to those responsible for the conduct of police operations in the judgments required to be made to that end: see generally Hinchcliffe v Commissioner of Australian Federal Police [2001] FCA 1747 ; (2001) 118 FCR 308 at [33] - [35] . As Lord Denning observed in R v Chief Constable of Devon and Cornwall; Ex parte Central Electricity Generating Board [1982] 1 QB 458 at 472: "It is of the first importance that the police should decide on their own responsibility what action should be taken in any particular situation".


case_title: R v Chief Constable of Devon and Cornwall; Ex parte Central Electricity Generating Board [1982] 1 QB 458


case_title: Thompson v Vincent [2005] NSWCA 219

case_text: It equally is well recognised that to impose common law duties of care on police officers to a particular member or members of the public in addition to their duty to the general public can, on occasion, be "inconsistent with the proper and effective discharge of [their public] responsibilities": cf Sullivan v Moody , at [62]; (whether those responsibilities arise under a statute such as the AFP Act or at common law) and to be impermissible for that reason. As the observations of Gummow and Hayne JJ in Tame illustrate, this inconsistency is often revealed where, in a setting in which injury is foreseeable if care is not taken in the conduct of a police investigation, a suspect, a victim, or a third party injured by acts or omissions of the police seeks to raise a claim in negligence against the police: Hill , above; Thompson v Vincent [2005] NSWCA 219 at [152] - [154] ; Batchelor v State of Tasmania [2005] TASSC 11 ; Cran v State of New South Wales [2004] NSWCA 92 ; (2004) 62 NSWLR 95; see also D'Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12 ; (2005) 214 ALR 92 at [101] ; State of New South Wales v Paige [2002] NSWCA 235 ; (2002) 60 NSWLR 371 at [115] - [117] . Save in exceptional circumstances: cf Hill at 62; Batchelor , above; and in North America see e.g. Doe v Board of Commissioners for Municipality of Metropolitan Toronto (1990) 72 DLR 4 th 580 ("Doe"); Eaton, "Liability of Municipality or Other Governmental Unit for Failure to Provide Police Protection from Crime" 90 ALR 5 th 273 at SS4 ; 57 Am Jur 2d, "Municipal, County, School and State Tort Liability", SSSS407-418; such attempts have been unsuccessful. 95 Hill's case, I would note, has been referred to approvingly in some number of High Court judgments: see e.g. Sullivan v Moody at [57]; Tame at [231], [335]; see also Thompson v Vincent at [153]-[154]; Cran v State of New South Wales , at [33] ff; but cf contra Zalewski v Turcarolo [1995] 2 VR 562 a decision which pre-dated Sullivan v Moody . 96 I will return below to whether such an exclusionary principle based on public policy accurately reflects the law in this country; see Thompson v Vincent at [153]-[154]; or whether the "principle" does no more than represent the usual or predictable, but not invariable, consequence of the evaluation of whether the relationship between the police and an individual in a given instance imports a duty of care in the context of a police investigation: cf Graham Barclay Oysters Pty Ltd v Ryan [2002] HCA 54 ; (2002) 211 CLR 540 at [149] . Before so doing, it is important to emphasise that police officers are not as such and in all circumstances immune from the law of negligence for acts or omissions in the course of official duty that occasion foreseeable harm. The contrary is clearly the case, as a large case law in common law jurisdictions, including England, attests: Zalewski v Turcarolo ; Costello v Chief Constable of the Northumbria Police [1999] 1 All ER 550; see also Grubb (ed), The Law of Tort , "The Police" 16.73 ff (2002); Linden, Canadian Tort Law , 286, 625 (7 th ed 2001); Todd (ed), The Law of Torts in New Zealand , 204, 212 ff (3 rd ed, 2001); Eaton, above 90 ALR 5 th 273. 98 What is noticeable in the case law of common law countries illustrated above (including that of England) is that it is accepted both that positive dangerous behaviour by police can still attract a duty of care and that, particularly in cases of omissions to act, the police may nonetheless have, or have assumed such a particular responsibility to take care of a person as to give rise to a "special relationship" with that person which attracts a duty of care to him or her: see e.g. Brooks v Commissioner of Police at [22] and [29]; Costello v Chief Constable of the Northumbria Police esp per May LJ; in US jurisdictions the "special relationship" exception is well recognised in a range of otherwise negligence exempt areas of police activity, see e.g. Eaton, above at SS4 ; see also 57 Am Jur 2d, above, at SS410 ff. What equally is notable is the varying significance given to the particular "operational" context in which the relationship giving rise to a duty of care is said to exist. Hence the ready imposition of a duty of care to persons in police custody: Hall v Whatmore , above; and the corresponding reluctance to impose such a duty in the context of the conduct of a criminal investigation D'Orta Ekenaike v Victoria Legal Aid at [101]-[102]; see also Cran v State of New South Wales , above; or in preventing a breach of the peace: Thompson v Vincent , above. 104 As I earlier noted, the judgment of Gummow and Kirby JJ in Tame relied on Sullivan at [60] above when expressing the view that it was unlikely that an investigating police officer would owe a duty of care to a person whose conduct was under investigation. Sullivan equally was invoked by Hayne J and Callinan J to the same end in Tame . In its apparent endorsement of Hill at [57] in the above quotation, Sullivan along with Hill and D'Orta-Ekenaike v Victoria Legal Aid above, have been treated by the New South Wales Court of Appeal as recognising that there is "an area in which it has been held that the public law duties of police are not consonant with recognition of a private law duty of care in favour of a particular member of the public": Thompson v Vincent at [153]-[154]. Again, as I have already noted, Tame and its debt to Sullivan and Hill were relied upon again by the New South Wales Court of Appeal in Cran v State of New South Wales in privileging the greater public interested accorded unimpeded police investigation over the interest of a person suffering foreseeable harm as a result of an allegedly careless omission in the conduct of an investigation.


case_text: It equally is well recognised that to impose common law duties of care on police officers to a particular member or members of the public in addition to their duty to the general public can, on occasion, be "inconsistent with the proper and effective discharge of [their public] responsibilities": cf Sullivan v Moody , at [62]; (whether those responsibilities arise under a statute such as the AFP Act or at common law) and to be impermissible for that reason. As the observations of Gummow and Hayne JJ in Tame illustrate, this inconsistency is often revealed where, in a setting in which injury is foreseeable if care is not taken in the conduct of a police investigation, a suspect, a victim, or a third party injured by acts or omissions of the police seeks to raise a claim in negligence against the police: Hill , above; Thompson v Vincent [2005] NSWCA 219 at [152] - [154] ; Batchelor v State of Tasmania [2005] TASSC 11 ; Cran v State of New South Wales [2004] NSWCA 92 ; (2004) 62 NSWLR 95; see also D'Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12 ; (2005) 214 ALR 92 at [101] ; State of New South Wales v Paige [2002] NSWCA 235 ; (2002) 60 NSWLR 371 at [115] - [117] . Save in exceptional circumstances: cf Hill at 62; Batchelor , above; and in North America see e.g. Doe v Board of Commissioners for Municipality of Metropolitan Toronto (1990) 72 DLR 4 th 580 ("Doe"); Eaton, "Liability of Municipality or Other Governmental Unit for Failure to Provide Police Protection from Crime" 90 ALR 5 th 273 at SS4 ; 57 Am Jur 2d, "Municipal, County, School and State Tort Liability", SSSS407-418; such attempts have been unsuccessful. 100 In contrast, the 1995 decision of the Appeal Division of the Supreme Court of Victoria and the recent Tasmanian decision of Batchelor v State of Tasmania are more questioning of whether the immunity principle (at least in the scope given it) is part of Australian law.


case_text: It equally is well recognised that to impose common law duties of care on police officers to a particular member or members of the public in addition to their duty to the general public can, on occasion, be "inconsistent with the proper and effective discharge of [their public] responsibilities": cf Sullivan v Moody , at [62]; (whether those responsibilities arise under a statute such as the AFP Act or at common law) and to be impermissible for that reason. As the observations of Gummow and Hayne JJ in Tame illustrate, this inconsistency is often revealed where, in a setting in which injury is foreseeable if care is not taken in the conduct of a police investigation, a suspect, a victim, or a third party injured by acts or omissions of the police seeks to raise a claim in negligence against the police: Hill , above; Thompson v Vincent [2005] NSWCA 219 at [152] - [154] ; Batchelor v State of Tasmania [2005] TASSC 11 ; Cran v State of New South Wales [2004] NSWCA 92 ; (2004) 62 NSWLR 95; see also D'Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12 ; (2005) 214 ALR 92 at [101] ; State of New South Wales v Paige [2002] NSWCA 235 ; (2002) 60 NSWLR 371 at [115] - [117] . Save in exceptional circumstances: cf Hill at 62; Batchelor , above; and in North America see e.g. Doe v Board of Commissioners for Municipality of Metropolitan Toronto (1990) 72 DLR 4 th 580 ("Doe"); Eaton, "Liability of Municipality or Other Governmental Unit for Failure to Provide Police Protection from Crime" 90 ALR 5 th 273 at SS4 ; 57 Am Jur 2d, "Municipal, County, School and State Tort Liability", SSSS407-418; such attempts have been unsuccessful. 95 Hill's case, I would note, has been referred to approvingly in some number of High Court judgments: see e.g. Sullivan v Moody at [57]; Tame at [231], [335]; see also Thompson v Vincent at [153]-[154]; Cran v State of New South Wales , at [33] ff; but cf contra Zalewski v Turcarolo [1995] 2 VR 562 a decision which pre-dated Sullivan v Moody . 98 What is noticeable in the case law of common law countries illustrated above (including that of England) is that it is accepted both that positive dangerous behaviour by police can still attract a duty of care and that, particularly in cases of omissions to act, the police may nonetheless have, or have assumed such a particular responsibility to take care of a person as to give rise to a "special relationship" with that person which attracts a duty of care to him or her: see e.g. Brooks v Commissioner of Police at [22] and [29]; Costello v Chief Constable of the Northumbria Police esp per May LJ; in US jurisdictions the "special relationship" exception is well recognised in a range of otherwise negligence exempt areas of police activity, see e.g. Eaton, above at SS4 ; see also 57 Am Jur 2d, above, at SS410 ff. What equally is notable is the varying significance given to the particular "operational" context in which the relationship giving rise to a duty of care is said to exist. Hence the ready imposition of a duty of care to persons in police custody: Hall v Whatmore , above; and the corresponding reluctance to impose such a duty in the context of the conduct of a criminal investigation D'Orta Ekenaike v Victoria Legal Aid at [101]-[102]; see also Cran v State of New South Wales , above; or in preventing a breach of the peace: Thompson v Vincent , above. 99 Australian case law, while generally conforming in its results with particularly comparable English decisions, has not unreservedly committed itself to the public policy immunity prevailing in England. The Court of Appeal of New South Wales on a number of occasions and most recently in Cran v State of New South Wales has adopted an approach to cases involving investigative conduct that reflects the immunity principle found in English decisions and particularly Hill's case. In Cran v State of New South Wales it was noted by Santow JA that in Tame's case, "there are strong dicta suggesting that the English authorities would be followed in Australia" (at [35]) and that "on present authority [in New South Wales] the greater public interest accorded unimpeded investigation by the police ... preclude[d] any duty of care to the appellant" (at [63]) in that case where a prisoner claimed damages for post-traumatic stress disorder resulting from unnecessarily prolonged imprisonment because of delay in a police investigation. 104 As I earlier noted, the judgment of Gummow and Kirby JJ in Tame relied on Sullivan at [60] above when expressing the view that it was unlikely that an investigating police officer would owe a duty of care to a person whose conduct was under investigation. Sullivan equally was invoked by Hayne J and Callinan J to the same end in Tame . In its apparent endorsement of Hill at [57] in the above quotation, Sullivan along with Hill and D'Orta-Ekenaike v Victoria Legal Aid above, have been treated by the New South Wales Court of Appeal as recognising that there is "an area in which it has been held that the public law duties of police are not consonant with recognition of a private law duty of care in favour of a particular member of the public": Thompson v Vincent at [153]-[154]. Again, as I have already noted, Tame and its debt to Sullivan and Hill were relied upon again by the New South Wales Court of Appeal in Cran v State of New South Wales in privileging the greater public interested accorded unimpeded police investigation over the interest of a person suffering foreseeable harm as a result of an allegedly careless omission in the conduct of an investigation. 117 In the cases of Scott Rush and of the other applicants the duty contended for cannot be reconciled with the nature and purpose of the functions being exercised by the AFP officers concerned, the discretions conferred on them in virtue of the task they were involved in, and the policy directive they were, apparently, implementing: cf Sullivan v Moody at [62]. Accordingly, to adopt Santow JA's observations in Cran v State of New South Wales at [63], the greater public interest accorded unimpeded investigation by the AFP precludes in this case any duty of care owed to Scott Rush or to the other applicants. Such is the current law in this country and the policy informing it, that the interests of the applicants were subordinated to the public interests served by the AFP in their conduct of the investigation in question.


case_text: It equally is well recognised that to impose common law duties of care on police officers to a particular member or members of the public in addition to their duty to the general public can, on occasion, be "inconsistent with the proper and effective discharge of [their public] responsibilities": cf Sullivan v Moody , at [62]; (whether those responsibilities arise under a statute such as the AFP Act or at common law) and to be impermissible for that reason. As the observations of Gummow and Hayne JJ in Tame illustrate, this inconsistency is often revealed where, in a setting in which injury is foreseeable if care is not taken in the conduct of a police investigation, a suspect, a victim, or a third party injured by acts or omissions of the police seeks to raise a claim in negligence against the police: Hill , above; Thompson v Vincent [2005] NSWCA 219 at [152] - [154] ; Batchelor v State of Tasmania [2005] TASSC 11 ; Cran v State of New South Wales [2004] NSWCA 92 ; (2004) 62 NSWLR 95; see also D'Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12 ; (2005) 214 ALR 92 at [101] ; State of New South Wales v Paige [2002] NSWCA 235 ; (2002) 60 NSWLR 371 at [115] - [117] . Save in exceptional circumstances: cf Hill at 62; Batchelor , above; and in North America see e.g. Doe v Board of Commissioners for Municipality of Metropolitan Toronto (1990) 72 DLR 4 th 580 ("Doe"); Eaton, "Liability of Municipality or Other Governmental Unit for Failure to Provide Police Protection from Crime" 90 ALR 5 th 273 at SS4 ; 57 Am Jur 2d, "Municipal, County, School and State Tort Liability", SSSS407-418; such attempts have been unsuccessful. 104 As I earlier noted, the judgment of Gummow and Kirby JJ in Tame relied on Sullivan at [60] above when expressing the view that it was unlikely that an investigating police officer would owe a duty of care to a person whose conduct was under investigation. Sullivan equally was invoked by Hayne J and Callinan J to the same end in Tame . In its apparent endorsement of Hill at [57] in the above quotation, Sullivan along with Hill and D'Orta-Ekenaike v Victoria Legal Aid above, have been treated by the New South Wales Court of Appeal as recognising that there is "an area in which it has been held that the public law duties of police are not consonant with recognition of a private law duty of care in favour of a particular member of the public": Thompson v Vincent at [153]-[154]. Again, as I have already noted, Tame and its debt to Sullivan and Hill were relied upon again by the New South Wales Court of Appeal in Cran v State of New South Wales in privileging the greater public interested accorded unimpeded police investigation over the interest of a person suffering foreseeable harm as a result of an allegedly careless omission in the conduct of an investigation.


case_text: It equally is well recognised that to impose common law duties of care on police officers to a particular member or members of the public in addition to their duty to the general public can, on occasion, be "inconsistent with the proper and effective discharge of [their public] responsibilities": cf Sullivan v Moody , at [62]; (whether those responsibilities arise under a statute such as the AFP Act or at common law) and to be impermissible for that reason. As the observations of Gummow and Hayne JJ in Tame illustrate, this inconsistency is often revealed where, in a setting in which injury is foreseeable if care is not taken in the conduct of a police investigation, a suspect, a victim, or a third party injured by acts or omissions of the police seeks to raise a claim in negligence against the police: Hill , above; Thompson v Vincent [2005] NSWCA 219 at [152] - [154] ; Batchelor v State of Tasmania [2005] TASSC 11 ; Cran v State of New South Wales [2004] NSWCA 92 ; (2004) 62 NSWLR 95; see also D'Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12 ; (2005) 214 ALR 92 at [101] ; State of New South Wales v Paige [2002] NSWCA 235 ; (2002) 60 NSWLR 371 at [115] - [117] . Save in exceptional circumstances: cf Hill at 62; Batchelor , above; and in North America see e.g. Doe v Board of Commissioners for Municipality of Metropolitan Toronto (1990) 72 DLR 4 th 580 ("Doe"); Eaton, "Liability of Municipality or Other Governmental Unit for Failure to Provide Police Protection from Crime" 90 ALR 5 th 273 at SS4 ; 57 Am Jur 2d, "Municipal, County, School and State Tort Liability", SSSS407-418; such attempts have been unsuccessful.


case_title: Doe v Board of Commissioners for Municipality of Metropolitan Toronto (1990) 72 DLR 4 th 580


case_text: Primary concerns manifest in English and, in some degree, Australian case law have been to maintain the effectiveness of particular police functions (and notably the conduct of investigations and the suppression of crime) and to avert their compromise or undermining by the imposition of a duty to an individual (or individuals) over and above that owed to the public. In English law this has led to the adoption of an exclusionary principle (or immunity) which is often cast in broad terms. So, for example, in Calveley v Chief Constable of Merseyside Police [1989] 1 AC 1228 it was said by Lord Bridge (at 1238) that: "... it would plainly be contrary to public policy ... to prejudice the fearless and efficient discharge by police officers of their vitally important public duty of investigating crime by requiring them to act under the shadow of a potential action for damages for negligence by the suspect."


case_title: Zalewski v Turcarolo [1995] 2 VR 562

case_text: Hill's case, I would note, has been referred to approvingly in some number of High Court judgments: see e.g. Sullivan v Moody at [57]; Tame at [231], [335]; see also Thompson v Vincent at [153]-[154]; Cran v State of New South Wales , at [33] ff; but cf contra Zalewski v Turcarolo [1995] 2 VR 562 a decision which pre-dated Sullivan v Moody . 96 I will return below to whether such an exclusionary principle based on public policy accurately reflects the law in this country; see Thompson v Vincent at [153]-[154]; or whether the "principle" does no more than represent the usual or predictable, but not invariable, consequence of the evaluation of whether the relationship between the police and an individual in a given instance imports a duty of care in the context of a police investigation: cf Graham Barclay Oysters Pty Ltd v Ryan [2002] HCA 54 ; (2002) 211 CLR 540 at [149] . Before so doing, it is important to emphasise that police officers are not as such and in all circumstances immune from the law of negligence for acts or omissions in the course of official duty that occasion foreseeable harm. The contrary is clearly the case, as a large case law in common law jurisdictions, including England, attests: Zalewski v Turcarolo ; Costello v Chief Constable of the Northumbria Police [1999] 1 All ER 550; see also Grubb (ed), The Law of Tort , "The Police" 16.73 ff (2002); Linden, Canadian Tort Law , 286, 625 (7 th ed 2001); Todd (ed), The Law of Torts in New Zealand , 204, 212 ff (3 rd ed, 2001); Eaton, above 90 ALR 5 th 273. 97 By way of illustration I would note that a duty of care has been assumed, or found to exist: (i) in the conduct of a high speed police motor vehicle pursuit of a suspected criminal ( Schilling v Lenton (1988) 47 SASR 88; see also Marshall v Osmond [1983] 1 QB 1034; 57 Am Jur 2d, above SS439); (ii) where a superior officer failed to go to the assistance of another officer whom he knew was being attacked close by and for whom he had a responsibility ( Costello v Chief Constable of the Northumbria Police , above; Mullaney v Chief Constable of West Midlands Police [2001] EWCA Civ 700) ; (iii) in positively provoking or acting in disregard of a real and substantial risk of harm to a person ( Zalewski v Turcarolo , above) or property ( Rigby v Chief Constable of Northamptonshire [1985] 1 WLR 1242); (iv) in providing for the safety and well-being of persons in police custody ( Hall v Whatmore [1961] VR 225; Howard v Jarvis [1958] HCA 19 ; (1958) 98 CLR 177; Reeves v Commissioner of Police of the Metropolis [1999] UKHL 35 ; [2000] 1 AC 360); (v) in relation to preserving the confidentiality of information provided by an informant identifying a criminal suspect, the disclosure of which was likely to expose the informant and her husband to a greater risk of harm at the hands of the suspect than the ordinary risk to the general public ( Swinney v Chief Constable of the Northumbria Police ); (vi) in Canada, to protect a woman who was unaware she was knowingly being used by police as "bait" to catch a serial rapist in circumstances in which the police deliberately failed to warn of the risk she faced for fear of compromising their investigation though knowing that the rapist would attack again and cause irreparable harm to his victim ( Doe v Metropolitan Toronto (Municipality) Commissioners of Police (1998) 160 DLR 4 th 697); and (vii) in a United States jurisdiction, in delaying in responding to calls made by assault victims, the assurance that help was on its way having been given to them ( Chambers-Castanes v King County 669 P2d 451 (1983); and see Zitter, "Liability for Failure of Police Response to Emergency Call" , 39 ALR 4 th 691).


case_text: I will return below to whether such an exclusionary principle based on public policy accurately reflects the law in this country; see Thompson v Vincent at [153]-[154]; or whether the "principle" does no more than represent the usual or predictable, but not invariable, consequence of the evaluation of whether the relationship between the police and an individual in a given instance imports a duty of care in the context of a police investigation: cf Graham Barclay Oysters Pty Ltd v Ryan [2002] HCA 54 ; (2002) 211 CLR 540 at [149] . Before so doing, it is important to emphasise that police officers are not as such and in all circumstances immune from the law of negligence for acts or omissions in the course of official duty that occasion foreseeable harm. The contrary is clearly the case, as a large case law in common law jurisdictions, including England, attests: Zalewski v Turcarolo ; Costello v Chief Constable of the Northumbria Police [1999] 1 All ER 550; see also Grubb (ed), The Law of Tort , "The Police" 16.73 ff (2002); Linden, Canadian Tort Law , 286, 625 (7 th ed 2001); Todd (ed), The Law of Torts in New Zealand , 204, 212 ff (3 rd ed, 2001); Eaton, above 90 ALR 5 th 273. 101 It is, in my view, unnecessary in this matter to express a concluded view on whether, as in England, a special though not unqualified, immunity rule applies to police activities "in the investigation and suppression of crime": Costello's case at 563; or whether the duty of care question is to be answered by applying to police those principles now generally applied to public authorities in the discharge of their statutory and, if relevant, common law functions: see Graham Barclay Oysters Pty Ltd v Ryan . I am of this view because both binding and persuasive authority lead inevitably to the conclusion that this application must fail. However, I would respectfully suggest that more recent English authority demonstrating "reluctance to endorse the full breadth of what Hill v Chief Constable of West Yorkshire ... has been thought to lay down" on the immunity of police: cf Brooks v Commissioner of Police , at [3], [6] and [28]; and the difficulty in providing criteria to mark out exceptions to that immunity: see e.g. Costello ; Cowan v The Chief Constable for Avon & Somerset Constabulary [2001] EWCA Civ 1699 ; tell in favour of avoiding any special rule applicable to police, while still acknowledging that the police function can have distinctive characteristics and purposes which in many settings may exclude the concurrent operation of a duty of care at common law: cf Doe , 72 DLR 4 th at 584-586. 107 First, it needs to be emphasised that the AFP was performing a statutorily mandated function, i.e. the provision of legal services in relation to laws of the Commonwealth. The particular subject of the inquiry transnational crime and illicit drug trafficking - fell within areas of "special emphasis" in the direction given to the Commissioner by the Minister on 31 August 2004. As the 8 April 2004 letter to the INP reveals, the AFP was already possessed of a considerable body of information relating to past and likely prospective moves of (inter alia) the applicants. That letter indicated the AFP's purpose in making its request was that "[t]he AFP would like to identify the source of the drugs and the organisers (other than CHAN) in Australia". In other words there was a rational and proper police purpose for the making of the request. If there was to be a concurrent common law duty of care, this was the statutory and operational setting with which it had to be compatible: cf Graham Barclay Oysters Pty Ltd v Ryan at [147]. 108 Secondly, there was no contact between the AFP and any of the applicants at all let alone contact that could lead Scott Rush or any of the others to reasonably believe or expect that the AFP had assumed some tutelary responsibility for him or her on which each could rely. 109 The Myer-Patching communications were directed to Lee Rush, not to the applicants generally or to Scott Rush in particular. I assume for the purposes of this application, that those communications led Lee Rush reasonably to believe that AFP officers would and did speak to Scott Rush at Sydney airport and because of this he did not go to Bali to save his son from committing any offence. I equally assume that Scott Rush was to have been the beneficiary of the police action Lee Rush believed had occurred and that the police failure to speak to him before his departure to Bali denied him the opportunity to abandon his participation in the trafficking operation given its predictable consequence. However, it is not the failure to warn as such that underpins the alleged negligence of the AFP officers. Rather it appears to be said that, having regard (a) to the alleged provision of information by or on behalf of Lee Rush to Patching about the apprehended criminal activity by Scott Rush, and (b) the request for assistance in relation to Scott Rush's departure from Sydney and the alleged representation that it had been given, the AFP's failure to act against this background may have authored a duty not to use the information in a way that put Scott Rush at risk of exposure to the death penalty in Indonesia. Hence it is said there is reasonable cause to believe that he may have a right to obtain relief from the relevant AFP officers in a negligence action in this Court.


case_outcome: distinguished

case_text: I will return below to whether such an exclusionary principle based on public policy accurately reflects the law in this country; see Thompson v Vincent at [153]-[154]; or whether the "principle" does no more than represent the usual or predictable, but not invariable, consequence of the evaluation of whether the relationship between the police and an individual in a given instance imports a duty of care in the context of a police investigation: cf Graham Barclay Oysters Pty Ltd v Ryan [2002] HCA 54 ; (2002) 211 CLR 540 at [149] . Before so doing, it is important to emphasise that police officers are not as such and in all circumstances immune from the law of negligence for acts or omissions in the course of official duty that occasion foreseeable harm. The contrary is clearly the case, as a large case law in common law jurisdictions, including England, attests: Zalewski v Turcarolo ; Costello v Chief Constable of the Northumbria Police [1999] 1 All ER 550; see also Grubb (ed), The Law of Tort , "The Police" 16.73 ff (2002); Linden, Canadian Tort Law , 286, 625 (7 th ed 2001); Todd (ed), The Law of Torts in New Zealand , 204, 212 ff (3 rd ed, 2001); Eaton, above 90 ALR 5 th 273. 97 By way of illustration I would note that a duty of care has been assumed, or found to exist: (i) in the conduct of a high speed police motor vehicle pursuit of a suspected criminal ( Schilling v Lenton (1988) 47 SASR 88; see also Marshall v Osmond [1983] 1 QB 1034; 57 Am Jur 2d, above SS439); (ii) where a superior officer failed to go to the assistance of another officer whom he knew was being attacked close by and for whom he had a responsibility ( Costello v Chief Constable of the Northumbria Police , above; Mullaney v Chief Constable of West Midlands Police [2001] EWCA Civ 700) ; (iii) in positively provoking or acting in disregard of a real and substantial risk of harm to a person ( Zalewski v Turcarolo , above) or property ( Rigby v Chief Constable of Northamptonshire [1985] 1 WLR 1242); (iv) in providing for the safety and well-being of persons in police custody ( Hall v Whatmore [1961] VR 225; Howard v Jarvis [1958] HCA 19 ; (1958) 98 CLR 177; Reeves v Commissioner of Police of the Metropolis [1999] UKHL 35 ; [2000] 1 AC 360); (v) in relation to preserving the confidentiality of information provided by an informant identifying a criminal suspect, the disclosure of which was likely to expose the informant and her husband to a greater risk of harm at the hands of the suspect than the ordinary risk to the general public ( Swinney v Chief Constable of the Northumbria Police ); (vi) in Canada, to protect a woman who was unaware she was knowingly being used by police as "bait" to catch a serial rapist in circumstances in which the police deliberately failed to warn of the risk she faced for fear of compromising their investigation though knowing that the rapist would attack again and cause irreparable harm to his victim ( Doe v Metropolitan Toronto (Municipality) Commissioners of Police (1998) 160 DLR 4 th 697); and (vii) in a United States jurisdiction, in delaying in responding to calls made by assault victims, the assurance that help was on its way having been given to them ( Chambers-Castanes v King County 669 P2d 451 (1983); and see Zitter, "Liability for Failure of Police Response to Emergency Call" , 39 ALR 4 th 691). 98 What is noticeable in the case law of common law countries illustrated above (including that of England) is that it is accepted both that positive dangerous behaviour by police can still attract a duty of care and that, particularly in cases of omissions to act, the police may nonetheless have, or have assumed such a particular responsibility to take care of a person as to give rise to a "special relationship" with that person which attracts a duty of care to him or her: see e.g. Brooks v Commissioner of Police at [22] and [29]; Costello v Chief Constable of the Northumbria Police esp per May LJ; in US jurisdictions the "special relationship" exception is well recognised in a range of otherwise negligence exempt areas of police activity, see e.g. Eaton, above at SS4 ; see also 57 Am Jur 2d, above, at SS410 ff. What equally is notable is the varying significance given to the particular "operational" context in which the relationship giving rise to a duty of care is said to exist. Hence the ready imposition of a duty of care to persons in police custody: Hall v Whatmore , above; and the corresponding reluctance to impose such a duty in the context of the conduct of a criminal investigation D'Orta Ekenaike v Victoria Legal Aid at [101]-[102]; see also Cran v State of New South Wales , above; or in preventing a breach of the peace: Thompson v Vincent , above. 101 It is, in my view, unnecessary in this matter to express a concluded view on whether, as in England, a special though not unqualified, immunity rule applies to police activities "in the investigation and suppression of crime": Costello's case at 563; or whether the duty of care question is to be answered by applying to police those principles now generally applied to public authorities in the discharge of their statutory and, if relevant, common law functions: see Graham Barclay Oysters Pty Ltd v Ryan . I am of this view because both binding and persuasive authority lead inevitably to the conclusion that this application must fail. However, I would respectfully suggest that more recent English authority demonstrating "reluctance to endorse the full breadth of what Hill v Chief Constable of West Yorkshire ... has been thought to lay down" on the immunity of police: cf Brooks v Commissioner of Police , at [3], [6] and [28]; and the difficulty in providing criteria to mark out exceptions to that immunity: see e.g. Costello ; Cowan v The Chief Constable for Avon & Somerset Constabulary [2001] EWCA Civ 1699 ; tell in favour of avoiding any special rule applicable to police, while still acknowledging that the police function can have distinctive characteristics and purposes which in many settings may exclude the concurrent operation of a duty of care at common law: cf Doe , 72 DLR 4 th at 584-586.


case_title: Schilling v Lenton (1988) 47 SASR 88

case_text: By way of illustration I would note that a duty of care has been assumed, or found to exist: (i) in the conduct of a high speed police motor vehicle pursuit of a suspected criminal ( Schilling v Lenton (1988) 47 SASR 88; see also Marshall v Osmond [1983] 1 QB 1034; 57 Am Jur 2d, above SS439); (ii) where a superior officer failed to go to the assistance of another officer whom he knew was being attacked close by and for whom he had a responsibility ( Costello v Chief Constable of the Northumbria Police , above; Mullaney v Chief Constable of West Midlands Police [2001] EWCA Civ 700) ; (iii) in positively provoking or acting in disregard of a real and substantial risk of harm to a person ( Zalewski v Turcarolo , above) or property ( Rigby v Chief Constable of Northamptonshire [1985] 1 WLR 1242); (iv) in providing for the safety and well-being of persons in police custody ( Hall v Whatmore [1961] VR 225; Howard v Jarvis [1958] HCA 19 ; (1958) 98 CLR 177; Reeves v Commissioner of Police of the Metropolis [1999] UKHL 35 ; [2000] 1 AC 360); (v) in relation to preserving the confidentiality of information provided by an informant identifying a criminal suspect, the disclosure of which was likely to expose the informant and her husband to a greater risk of harm at the hands of the suspect than the ordinary risk to the general public ( Swinney v Chief Constable of the Northumbria Police ); (vi) in Canada, to protect a woman who was unaware she was knowingly being used by police as "bait" to catch a serial rapist in circumstances in which the police deliberately failed to warn of the risk she faced for fear of compromising their investigation though knowing that the rapist would attack again and cause irreparable harm to his victim ( Doe v Metropolitan Toronto (Municipality) Commissioners of Police (1998) 160 DLR 4 th 697); and (vii) in a United States jurisdiction, in delaying in responding to calls made by assault victims, the assurance that help was on its way having been given to them ( Chambers-Castanes v King County 669 P2d 451 (1983); and see Zitter, "Liability for Failure of Police Response to Emergency Call" , 39 ALR 4 th 691).


case_title: Marshall v Osmond [1983] 1 QB 1034


case_title: Mullaney v Chief Constable of West Midlands Police [2001] EWCA Civ 700


case_title: Rigby v Chief Constable of Northamptonshire [1985] 1 WLR 1242


case_title: Hall v Whatmore [1961] VR 225

case_text: By way of illustration I would note that a duty of care has been assumed, or found to exist: (i) in the conduct of a high speed police motor vehicle pursuit of a suspected criminal ( Schilling v Lenton (1988) 47 SASR 88; see also Marshall v Osmond [1983] 1 QB 1034; 57 Am Jur 2d, above SS439); (ii) where a superior officer failed to go to the assistance of another officer whom he knew was being attacked close by and for whom he had a responsibility ( Costello v Chief Constable of the Northumbria Police , above; Mullaney v Chief Constable of West Midlands Police [2001] EWCA Civ 700) ; (iii) in positively provoking or acting in disregard of a real and substantial risk of harm to a person ( Zalewski v Turcarolo , above) or property ( Rigby v Chief Constable of Northamptonshire [1985] 1 WLR 1242); (iv) in providing for the safety and well-being of persons in police custody ( Hall v Whatmore [1961] VR 225; Howard v Jarvis [1958] HCA 19 ; (1958) 98 CLR 177; Reeves v Commissioner of Police of the Metropolis [1999] UKHL 35 ; [2000] 1 AC 360); (v) in relation to preserving the confidentiality of information provided by an informant identifying a criminal suspect, the disclosure of which was likely to expose the informant and her husband to a greater risk of harm at the hands of the suspect than the ordinary risk to the general public ( Swinney v Chief Constable of the Northumbria Police ); (vi) in Canada, to protect a woman who was unaware she was knowingly being used by police as "bait" to catch a serial rapist in circumstances in which the police deliberately failed to warn of the risk she faced for fear of compromising their investigation though knowing that the rapist would attack again and cause irreparable harm to his victim ( Doe v Metropolitan Toronto (Municipality) Commissioners of Police (1998) 160 DLR 4 th 697); and (vii) in a United States jurisdiction, in delaying in responding to calls made by assault victims, the assurance that help was on its way having been given to them ( Chambers-Castanes v King County 669 P2d 451 (1983); and see Zitter, "Liability for Failure of Police Response to Emergency Call" , 39 ALR 4 th 691). 98 What is noticeable in the case law of common law countries illustrated above (including that of England) is that it is accepted both that positive dangerous behaviour by police can still attract a duty of care and that, particularly in cases of omissions to act, the police may nonetheless have, or have assumed such a particular responsibility to take care of a person as to give rise to a "special relationship" with that person which attracts a duty of care to him or her: see e.g. Brooks v Commissioner of Police at [22] and [29]; Costello v Chief Constable of the Northumbria Police esp per May LJ; in US jurisdictions the "special relationship" exception is well recognised in a range of otherwise negligence exempt areas of police activity, see e.g. Eaton, above at SS4 ; see also 57 Am Jur 2d, above, at SS410 ff. What equally is notable is the varying significance given to the particular "operational" context in which the relationship giving rise to a duty of care is said to exist. Hence the ready imposition of a duty of care to persons in police custody: Hall v Whatmore , above; and the corresponding reluctance to impose such a duty in the context of the conduct of a criminal investigation D'Orta Ekenaike v Victoria Legal Aid at [101]-[102]; see also Cran v State of New South Wales , above; or in preventing a breach of the peace: Thompson v Vincent , above.


case_title: Reeves v Commissioner of Police of the Metropolis [1999] UKHL 35 ; [2000] 1 AC 360


case_title: Doe v Metropolitan Toronto (Municipality) Commissioners of Police (1998) 160 DLR 4 th 697


case_title: Chambers-Castanes v King County 669 P2d 451 (1983)


case_text: It is, in my view, unnecessary in this matter to express a concluded view on whether, as in England, a special though not unqualified, immunity rule applies to police activities "in the investigation and suppression of crime": Costello's case at 563; or whether the duty of care question is to be answered by applying to police those principles now generally applied to public authorities in the discharge of their statutory and, if relevant, common law functions: see Graham Barclay Oysters Pty Ltd v Ryan . I am of this view because both binding and persuasive authority lead inevitably to the conclusion that this application must fail. However, I would respectfully suggest that more recent English authority demonstrating "reluctance to endorse the full breadth of what Hill v Chief Constable of West Yorkshire ... has been thought to lay down" on the immunity of police: cf Brooks v Commissioner of Police , at [3], [6] and [28]; and the difficulty in providing criteria to mark out exceptions to that immunity: see e.g. Costello ; Cowan v The Chief Constable for Avon & Somerset Constabulary [2001] EWCA Civ 1699 ; tell in favour of avoiding any special rule applicable to police, while still acknowledging that the police function can have distinctive characteristics and purposes which in many settings may exclude the concurrent operation of a duty of care at common law: cf Doe , 72 DLR 4 th at 584-586.


case_title: Emanuele v Hedley [1998] FCA 709

case_text: In light of the above cases, and putting to one side the effect if any of the communications between Mr Myer and Mr Patching, there would be no arguable basis at all for any contention that AFP officers had a legal responsibility to warn any of the applicants either that they were under police surveillance or that they were exposing themselves to the foreseeable risk of the death penalty especially given the information acquired about the applicants in the ongoing AFP investigation. Having been prepared for whatever reason to engage in criminal activity, the applicants would properly be regarded as the authors of their own harm: cf Emanuele v Hedley [1998] FCA 709 esp in its reliance on State Rail Authority of New South Wales v Wiegold (1991) 25 NSWLR 500 at 517. And the police would have been entitled to have treated them as no more than subjects of an ongoing criminal investigation which fell clearly within the mandated functions of the AFP. Given the police's function in the matter, the applicants would not have been objects of rescue (as they would have been if there was a duty to warn).


case_title: State Rail Authority of New South Wales v Wiegold (1991) 25 NSWLR 500


case_text: It is unnecessary to enlarge here on the question whether this Court would have jurisdiction in any event to entertain such a suit in negligence in the Northern Territory against members of the AFP as Commonwealth officers. I simply adhere to the affirmative view I expressed on a similar question arising in the Australian Capital Territory in O'Neill v Mann [2000] FCA 1180 ; (2000) 101 FCR 160. My reasoning in that case is "equally applicable to the Northern Territory": ALRC Report 92, The Judicial Power of the Commonwealth, 652 (2001). 111 The proposed negligence claim could well be described as a mutated form of breach of confidence action with the important difference that the duty said to be owed by the AFP officers was not owed to the supplier of the information, i.e. Lee Rush, but to the subject of it, i.e. Scott Rush. Furthermore the limitation on the use of that information proposed by the applicants is a narrow one. It is not that the AFP could not use the information supplied at all. Rather it could not be used in a way that would put Scott Rush at risk of exposure to the death penalty in Indonesia.


case_text: It need hardly be said that the disclosures of information about Scott Rush made by or on behalf of Lee Rush to AFP officers could not give rise to a duty of confidence to Lee Rush such as would prevent its use by the AFP in its investigations into drug trafficking into Australia. The disclosures related to apprehended serious criminal misconduct: cf Corrs Pavey Whiting & Byrne v Collector of Customs (1987) 14 FCR 434 esp at 456. And a court would not enforce any contractual or equitable obligation relating to such information, the effect of which would have been to obstruct the administration of the criminal law: A v Hayden [1984] HCA 67 ; (1984) 156 CLR 532.


case_text: It is unnecessary for present purposes to discuss the elements of this tort in any detail. They were recently essayed by the Full Court of this Court in Sanders v Snell (No 2) [2003] FCAFC 150 ; (2003) 130 FCR 149. I would note, though, that the tort can take two forms. In one form (that of "targeted malice") it must be shown that the public officer in question has acted as such with an actual intent to cause injury to a person or persons. In its alternate form it must be shown either that the officer has actual knowledge both that his or her action was beyond power and would cause or be likely to cause injury or else that the officer has acted with reckless indifference both to the possibility his or her action was beyond power and to the possibility that that action would cause or be likely to cause injury: see generally Sanders v Snell (No 2) at [95]-[100]. 122 The applicants' contentions in relation to this tort require that close attention be given to the requirements of O 15A r 6 in particular. I emphasise this for this reason.


case_text: The essence of the misfeasance tort in either of its forms is the "dishonest abuse of power": L (a child) v Reading Borough Council [2001] EWCA Civ 346 ; [2001] 1 WLR 1575 at 1588. I am in complete agreement with the submissions of the respondent that there is no basis at all in the material before me to suggest any reasonable cause to believe that Mr Hunniford or other AFP officers acted with the reckless indifference asserted in the applicants' supplementary written submissions. What is being advanced is at best "a mere possibility". The evidence does not "incline the mind" towards assenting to the proposition asserted: cf St George Bank Pty Ltd v Rabo at [26]. 124 I have already indicated that the actions of the AFP officers concerned with the decisions and actions which led to the applicants' arrest were not of themselves ultra vires. There is no reasonable cause to believe that the decisions or actions were invalid because they were improperly motivated or that the officers were recklessly indifferent to the possible lack of power or validity in making those decisions or actions. Rather, on the evidence, they were referable to the Police Cooperation MoU with Indonesia. And while it was a foreseeable and likely consequence of the 8 and 12 April letters to the INP, that the applicants would be arrested in Indonesia and in that sense be exposed to harm in the sense of being put at risk of the death penalty, there is again no material at all which could objectively incline me to the proposition that the likelihood of that harm was other than a possible consequence of what was in the circumstances a valid exercise of official power.


case_text: The applicant applies for leave to appeal from Driver FM's decision. That application was filed out of time. The Minister does not take issue with that fact and I will consider the merits of the application and whether leave to appeal should be granted under the principles in Decor Corporation Pty Ltd v Dart Industries Inc [1991] FCA 655 ; (1991) 33 FCR 397. 9 The application for leave to appeal annexes an affidavit and a draft notice of appeal. Looking at the grounds of appeal in substance, they contain assertions without particulars. There is no explanation of what the asserted error on the part of the Federal Magistrate is said to be. One ground of appeal refers to jurisdictional error in the decision of the delegate. I take that to mean jurisdictional error on the part of the Tribunal but, again, there is no particularisation of any such asserted jurisdictional error.


case_text: The grounds of appeal do not disclose an arguable case of error on the part of the Federal Magistrate or jurisdictional error on the part of the Tribunal. The applicant, who appears in person assisted by an interpreter, has not been able to point to any such error. I see no error on the part of the Federal Magistrate, nor jurisdictional error by the Tribunal. Indeed, there seems to be no dispute that the Tribunal carried out its functions in providing the required notification under the Migration Act 1958 (Cth). In the absence of any suggestion of fraud, SZFDE v Minister for Immigration and Citizenship [2007] HCA 35 ; (2007) 232 CLR 189 does not assist the applicant. 11 It follows that the application for leave to appeal should be refused. 12 The applicant is to pay the first respondent's costs in the sum of $1000. I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bennett. Associate: Dated: 10 September 2008 The applicant was self represented. Solicitor for the Respondents: Australian Government Solicitor Date of Hearing: 25 August 2008 Date of Judgment: 25 August 2008 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2008/1383.html


case_text: The applicant is a citizen of India. He arrived in Australia on 30 March 2007 and applied for a protection visa on 14 May 2007. The applicant's claim for a protection visa was based on a fear of persecution on the basis of his homosexuality. The applicant's application for a protection visa was refused by a delegate of the Minister for Immigration and Citizenship. On an application for review, the Refugee Review Tribunal affirmed the delegate's decision. An application for review of the Tribunal's decision was dismissed by Driver FM ( SZMBN v Minister for Immigration [2008] FMCA 503). 2 The applicant's difficulties in relation to his hearing before the Tribunal arose because he did not receive, or did not receive in time, notification from the Tribunal and the invitation to appear at the hearing. There is no dispute that the Tribunal notified the applicant's authorised recipient, his migration agent, of the hearing. However, it would seem that the migration agent did not, in turn, notify the applicant of the opportunity to attend. According to the decision of Driver FM, it may be that the applicant himself received a copy of the hearing invitation in the mail at his home address but, because he was working away from home at the time, it did not come to his attention until after the opportunity to attend the hearing had passed. 3 In any event, the applicant did not attend the hearing before the Tribunal. Given the lack of detail in the applicant's claims and without the opportunity to test the truthfulness of those claims at the hearing, the Tribunal found that it did not have sufficient evidence and was not prepared simply to accept the applicant's claims. It followed that the Tribunal was not satisfied that the applicant had a well-founded fear of persecution for a Convention reason.


case_text: As to issue estoppel, the underlying principles were stated by Dixon J (as he then was) in Blair v Curran [1939] HCA 23 ; (1939) 62 CLR 464 at 531-532: A judicial determination directly involving an issue of fact or of law disposes once for all of the issue, so that it cannot afterwards be raised between the same parties or their privies. The estoppel covers only those matters which the prior judgment, decree or order necessarily established as the legal foundation or justification of its conclusion, whether that conclusion is that a money sum be recovered or that the doing of an act be commanded or be restrained or that rights be declared. The distinction between res judicata and issue estoppel is that in the first the very right or cause of action claimed or put in suit has in the former proceedings passed into judgment, so that it is merged and has no longer an independent existence, while in the second for, the purpose of some other claim or cause of action, a state of fact or law is alleged or denied the existence of which is a matter necessarily decided by the prior judgment, decree or order. Nothing but what is legally indispensable to the conclusion is thus finally closed or precluded. In matters of fact the issue estoppel is confined to those ultimate facts which form the ingredients in the cause of action, that is, the title to the right established. Where the conclusion is against the existence of a right or claim which in point of law depends upon a number of ingredients or ultimate facts the absence of any one of which would be enough to defeat the claim, the estoppel covers only the actual ground upon which the existence of the right was negatived. But in neither case is the estoppel confined to the final legal conclusion expressed in the judgment, decree or order. In the phraseology of Coleridge J in R v Inhabitants of the Township of Hartington Middle Quarter (1855) 119 ER 288 at 293, the judicial determination concludes, not merely as to the point actually decided, but as to the matter which it was necessary to decide and which was actually decided as the groundwork of the decision itself, though not then directly the point at issue. Matters cardinal to the latter claim or contention cannot be raised if to raise them is necessarily to assert that the former decision was erroneous . (Emphasis added). 14 In Stack v Brisbane City Council [2004] FCA 354 (the Third Set of Reasons) Cooper J said at [21] and [22]: For there to arise an issue estoppel binding against Stack and GST it must be shown that: (a) the issue ruled upon was indispensable or fundamental to the ultimate decision: Blair and Perpetual Trustee Co Ltd v Curran [1939] HCA 23 ; (1939) 62 CLR 464 at 531; (b) the judgment is capable of giving rise to an issue estoppel: Administration of the Territory of Papua New Guinea v Guba [1973] HCA 59 ; (1973) 130 CLR 353 at 451; (c) the issues must be the same in each proceeding: Blair v Curran at 510, 532, 541; and (d) the parties to be bound by an issue estoppel were in controversy on the issue in question: Ramsay v Pigram [1968] HCA 34 ; (1968) 118 CLR 271 at 276, 279; Taylor v Ansett Transport Industries Ltd (1987) 18 FCR 342 at 356-358; 365. A practical test as to whether an issue was indispensable or fundamental to the ultimate decision is whether an appeal lies from a finding in respect of the issue: Murphy v Abi-Saab (1995) 37 NSWLR 280 at 288. In the instant case, each of the declarations was appealed to the Full Court of this Court and special leave to appeal in respect of them was refused by the High Court of Australia. Further, the fact that the proceedings were in respect of preliminary issues does not deny that they were capable of creating issues estoppel binding the parties to the proceedings: Fidelitas Shipping Co Ltd v V/O Exportchleb [1966] 1 QB 630 at 642. 52 In my opinion, Cooper J held, and indeed declared, that George Stack was not entitled, pursuant to s 15(1) of the Old Act , to a grant of a standard patent under Application No 85236/91. Since GST's entitlement to PP2 depends on Stack's entitlement to PP2, and since Stack's entitlement to PP2 depends on his entitlement to the standard patent under Application No 85236/91, of which PP2 was a divisional, GST is estopped, in these proceedings, from asserting an entitlement to PP2. In my judgment, the finding that Stack was not entitled to the Patent No 85236/91 is, in the words of Dixon J in Blair v Curran (supra) was " a matter necessary to decide and actually was decided, as the groundwork of the decision " that Stack was not entitled to PP1. 53 It follows that GST is not entitled to PP2 and that therefore an extension of PP2 would be futile. The delegate of the Commissioner was right to refuse the application for an extension of PP2 on this ground. 54 If, contrary to my finding, there was no issue estoppel binding on the applicant, the applicant claimed that having regard to the contents of the Deed of 22 October 1996, and the affidavit of Alan Joseph Grieves filed in these proceedings, there is evidence before the Court on which it might be concluded that Stack comes within s 15(1)(b) or (c) of the Old Act .


case_text: A recent discussion of what matters considered in an earlier proceeding can constitute an issue estoppel in later proceedings is to be found in Spassked Pty Ltd v Commissioner of Taxation [2007] FCAFC 205. See also Day v Commissioner of Taxation v Day [2007] FCAFC 193.