Commissioner of Police, NSW Police Service v Estate Edward John Russell & ors. [2001] NSWSC 745

Commissioner of Police, NSW Police Service v Estate Edward John Russell & ors. [2001] NSWSC 745

The Commissioner of Police and NSW Police Service are not liable as employer/principal of constables acting in that capacity under Anti-Discrimination Act 1977 (NSW), but the State of New South Wales is vicariously liable for tortious acts committed by police in the performance of their functions. Police officers' pursuit/arrest did not amount to provision of 'services' to Mr Russell under section 19(b), but their failure to afford Mr Russell protection upon arrest constituted conduct contemplated by section 19(a). The Tribunal lacks statutory power under s 113(1)(b) to order Employment Management Record entries for redress of loss or disciplinary purposes.

Jurisdiction
Australia
Judgment Date
31 August 2001
Procedural Posture
Referral of Questions of Law From Administrative Decisions Tribunal Appeal Panel Under Section 118 ADT Act / Determination of Referred Questions of Law
Outcome
Questions answered as follows: (i) No; State of NSW is so liable. (ii) No; police officers' failure after arrest constituted conduct under s 19(a). (iii) No.
Legal Topics
['police Liability' 'vicarious Liability' 'discrimination' 'racial Vilification' 'statutory Interpretation']
['administrative Law' 'anti Discrimination Law' 'public Law'] ['police Liability' 'vicarious Liability' 'discrimination' 'racial Vilification' 'statutory Interpretation']

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Procedural Posture

Referral of Questions of Law From Administrative Decisions Tribunal Appeal Panel Under Section 118 ADT Act / Determination of Referred Questions of Law

Legal Issues

  1. 1 ['Whether Anti-Discrimination Act 1977 (NSW) extends liability to Commissioner of Police/Police Service as employer/principal of constables' "Whether police officers in pursuit/arrest provided a 'service' within section 19 Anti-Discrimination Act" 'Whether Tribunal has power under s 113(1)(b) Anti-Discrimination Act to order Employment Management Record entries']

Ratio Decidendi

The Commissioner of Police and NSW Police Service are not liable as employer/principal of constables acting in that capacity under Anti-Discrimination Act 1977 (NSW), but the State of New South Wales is vicariously liable for tortious acts committed by police in the performance of their functions. Police officers' pursuit/arrest did not amount to provision of 'services' to Mr Russell under section 19(b), but their failure to afford Mr Russell protection upon arrest constituted conduct contemplated by section 19(a). The Tribunal lacks statutory power under s 113(1)(b) to order Employment Management Record entries for redress of loss or disciplinary purposes.

Court Disposition

Questions answered as follows: (i) No; State of NSW is so liable. (ii) No; police officers' failure after arrest constituted conduct under s 19(a). (iii) No.

Orders

  • ['Commissioner of Police and NSW Police Service to pay costs of Mr. and Mrs. Russell on questions (i) and (ii)' 'Mr. and Mrs. Russell to pay costs of named individual police officers on question (iii)' 'No order otherwise as to costs of named individual police officers' 'Notice of Motion of Mr. and Mrs. Russell...