Case: Graham Barclay Oysters Pty Ltd v Ryan [2002] HCA 54 ; (2002) 211 CLR 540
Outcome: cited
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 &amp; 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.