mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Attorney-General (NSW) v Quin [1990] HCA 21 ; (1990) 170 CLR 1
Outcome: cited
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so as to extend to an expectation that the benefit in question will be provided or, if already conferred, will not be withdrawn or that a threatened disadvantage or disability will not be imposed.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: Minister for Immigration and Ethnic Affairs v Teoh [1995] HCA 20 ; (1995) 183 CLR 273
Outcome: considered
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: Re Minister for Immigration and Multicultural and Indigenous Affairs; ex parte Lam ; [2003] HCA 6 ; (2003) 214 CLR 1 
Outcome: applied
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: R v North and East Devon Health Authority; Ex parte Coughlan [2001] QB 213
Outcome: cited
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: Swinney v Chief Constable of Northumbria Police [1997] QB 464 
Outcome: cited
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: Hinchcliffe v Commissioner of Australian Federal Police [2001] FCA 1747 ; (2001) 118 FCR 308
Outcome: cited
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: R v Chief Constable of Devon and Cornwall; Ex parte Central Electricity Generating Board [1982] 1 QB 458
Outcome: cited
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: Batchelor v State of Tasmania [2005] TASSC 11
Outcome: cited
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: D'Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12 ; (2005) 214 ALR 92
Outcome: cited
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: State of New South Wales v Paige [2002] NSWCA 235 ; (2002) 60 NSWLR 371
Outcome: cited
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: Doe v Board of Commissioners for Municipality of Metropolitan Toronto (1990) 72 DLR 4 th 580
Outcome: cited
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: Calveley v Chief Constable of Merseyside Police [1989] 1 AC 1228
Outcome: cited
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."