Johnston v State of New South Wales [2020] NSWSC 174

Johnston v State of New South Wales [2020] NSWSC 174

The initial determination was set aside because, on the material before the Court, it was unclear whether the alleged tortious act, if proved, was committed in the service of the Crown. Harrison AsJ's analysis placed undue emphasis on Prior and did not sufficiently account for the relevance of the second defendant's account and the Prince Alfred College approach concerning whether the employment position gave the occasion for the wrongful act. It was therefore impracticable to make an initial determination before findings of fact at the final hearing.

Jurisdiction
Australia
Judgment Date
06 March 2020
Procedural Posture
Notice of Motion Seeking Appeal or Review of an Associate Justice's Initial Determination Under S 9 C of the Law Reform (vicarious Liability) Act 1983 (nsw) Concerning Crown Vicarious Liability for an Alleged Police Officer Tort / Appeal/review From Johnston V State of New South Wales [2019] NSWSC 1206; Motion Heard on 25 February 2020
Outcome
Motion allowed in part; initial determination set aside; vicarious liability determination reserved for final hearing; plaintiff ordered to pay costs of the motion.
Legal Topics
['initial Determination Under Law Reform (vicarious Liability) Act 1983 (nsw) S 9 C' 'vicarious Liability of the Crown' 'alleged Assault and Battery by Police Officer' 'whether Alleged Tortious Acts Were Committed in the Course of Service to the Crown' 'whether Initial Determination Was Impracticable Before Final Hearing']
['practice and Procedure' 'torts' 'vicarious Liability' 'police Tort Claims'] ['initial Determination Under Law Reform (vicarious Liability) Act 1983 (nsw) S 9 C' 'vicarious Liability of the Crown' 'alleged Assault and Battery by Police Officer' 'whether Alleged Tortious Acts Were Committed in the Course of Service to the Crown' 'whether Initial Determination Was Impracticable Before Final Hearing']

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Procedural Posture

Notice of Motion Seeking Appeal or Review of an Associate Justice's Initial Determination Under S 9 C of the Law Reform (vicarious Liability) Act 1983 (nsw) Concerning Crown Vicarious Liability for an Alleged Police Officer Tort / Appeal/review From Johnston V State of New South Wales [2019] NSWSC 1206; Motion Heard on 25 February 2020

Legal Issues

  1. 1 ['Whether the initial determination that the first defendant would not be vicariously liable for the torts allegedly committed by the second defendant should be set aside.' 'Whether it was practicable to make an initial determination under s 9C of the Law Reform (Vicarious Liability) Act 1983 (NSW) before determining whether the alleged tort was committed.' "Whether, assuming the alleged assault and battery were established, the alleged tortious conduct was in the performance or purported performance of a function in the course of, or incident to, the second defendant's service with the Crown."]

Ratio Decidendi

The initial determination was set aside because, on the material before the Court, it was unclear whether the alleged tortious act, if proved, was committed in the service of the Crown. Harrison AsJ's analysis placed undue emphasis on Prior and did not sufficiently account for the relevance of the second defendant's account and the Prince Alfred College approach concerning whether the employment position gave the occasion for the wrongful act. It was therefore impracticable to make an initial determination before findings of fact at the final hearing.

Court Disposition

Motion allowed in part; initial determination set aside; vicarious liability determination reserved for final hearing; plaintiff ordered to pay costs of the motion.

Orders

  • ['The initial determination of the Honourable Associate Justice Harrison on 11 September 2019 that the first defendant is not vicariously liable for the torts allegedly committed by the second defendant, pursuant to ss 9C(a) and (b) of the Law Reform (Vicarious Liability) Act 1983 (NSW), be set aside.' 'The...