Federal Court of Australia

Singh v State of Queensland (Queensland Police Service) [2026] FCA 1596

ORDERS

THE COURT ORDERS THAT:

1.    The Interlocutory Application filed 17 March 2026 (Interlocutory Application) by the State of Queensland (Queensland Police Service) (State of Queensland) is dismissed.

2.    The State of Queensland pay the costs of Mr Gurdeep Singh of and incidental to the Interlocutory Application, such costs to be taxed if not otherwise agreed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

COLLIER ACJ:

1    Before the Court is an Interlocutory Application lodged for filing by the respondent, the State of Queensland (Queensland Police Service) (the State), on 17 March 2026, seeking orders that the causes of action pleaded by the applicant, Mr Gurdeep Singh (Mr Singh), at [57]-[59] of his Amended Statement of Claim lodged for filing on 17 February 2026, be struck out or otherwise partially dismissed on the basis that those paragraphs disclose no reasonable cause of action.

2    It is necessary to discuss the relevant background of the proceedings to give context to the parties’ submissions.

RELEVANT BACKGROUND

3    On 17 February 2026, Mr Singh lodged for filing an Amended Originating Application, seeking relief pursuant to the Australian Human Rights Commission Act 1986 (Cth) (AHRC Act), the Human Rights Act 2019 (Qld) (HR Act) and the Racial Discrimination Act 1975 (Cth) (RD Act). In the Amended Originating Application, Mr Singh alleged that officers of the Queensland Police Service (QPS), specifically Senior Constable Wells and Senior Constable Felsman (QPS officers), unlawfully discriminated against him on the basis of race and otherwise acted unlawfully in the course of investigating and prosecuting him. Mr Singh therefore sought various declaratory and injunctive relief, damages, interest and costs.

4    The Amended Originating Application is supported by the Amended Statement of Claim. Relevantly, in the Amended Statement of Claim, Mr Singh pleaded the following causes of action:

    Unlawful discrimination in the provision of services, contrary to s 13 of the RD Act, based on allegations that police services were refused or provided on less favourable terms because of Mr Singh’s race, colour, or national or ethnic origin (at [39]-[41]).

    Direct racial discrimination contrary to s 9(1) of the RD Act, based on allegations that the QPS officers treated Mr Singh less favourably because of his race, colour, or national or ethnic origin, including by failing to provide an interpreter, lawyer, support person, or other procedural protections, by failing to conduct an adequate investigation, and by charging and prosecuting him (at [42]-[46]).

    Indirect racial discrimination contrary to s 9(1A) of the RD Act, based on allegations that the QPS officers imposed requirements or conditions with which Mr Singh was unable to comply because of his race, national or ethnic origin, limited English proficiency, and related vulnerabilities (at [47]-[51]).

    Racial vilification contrary to s 18C of the RD Act, based on allegations that remarks made by the QPS officers and captured on body-worn camera footage after the officers had left the scene were reasonably likely to offend, insult, humiliate, or intimidate because of race or ethnic origin (at [52]-[56]).

    Negligence and/or breach of statutory duty, based on allegations that the State and the QPS officers owed Mr Singh various common law and statutory duties, including duties arising under the Police Powers and Responsibilities Act 2000 (Qld) (PPR Act), the Police Service Administration Act 1990 (Qld) (PSA Act), the HR Act, and related instruments including the Operational Procedures Manual (OPM), and that those duties were breached in the course of investigating, questioning, charging and prosecuting Mr Singh, causing him loss and damage (at [2(i)], [57]-[59]).

    Misfeasance in public office, based on allegations that the QPS officers and/or “the Police Prosecutor, whose identity is presently unknown to [Mr Singh]” knowingly, recklessly or with deliberate indifference exercised public powers unlawfully by questioning Mr Singh, refusing him access to legal and interpretive assistance, issuing a Notice to Appear, commencing and maintaining criminal proceedings against him, and failing to make proper disclosure during those proceedings (at [60]-[70]).

5    Relevantly, [57]-[59] of the Amended Statement of Claim (with tracked changes accepted) are as follows:

57.    The Applicant was owed various duties of care by the Respondent, SC Wells, and SC Felsman (alternatively, by officers and employees of the State for whom the Respondent is civilly liable) namely the statutory and common law duties pleaded at subparagraphs 2(i)(i)-(xiii) above.

58.    The Respondent, SC Wells and SC Felsman (alternatively, officers and employees of the State for whom the Respondent is civilly liable), breached their common law duty of care, and/or alternatively, their statutory duties, by:

(a)    breaching some or all of the duties outlined in the preceding paragraph;

(b)    failing to take reasonable care:

(i)    by way of the various failures of the Respondent, SC Wells and SC Felsman pleaded at paragraphs 42(a) to (f), (h), (k), (p), (q) and (s) above;

(c)    failing to ensure that the Applicant was not subjected to degrading treatment;

(d)    failing to ensure that the Applicant was not subjected to unlawful treatment;

(e)    failing to safeguard the Applicant’s human rights and fundamental freedoms;

(f)    failing to ensure that when doing an act (including a failure to act or a proposal to act) or making a decision HR Act s.58 was complied with;

(g)    failing to make decisions or act in a way that was compatible with human rights;

58A.    The acts or omissions by the Respondent and/or SC Wells and/or SC Felsman referred to in the preceding paragraph that constitute a breach of statutory duty constituted a wrongful exercise or failure within the meaning of s 36(2) of the Civil Liability Act 2003 in that they were, in the circumstances, so unreasonable that no public or other authority having the functions of the authority in question could properly consider the act or omission to be a reasonable exercise of its functions.

59.    In the premises, as a consequence of the breach of duty by SC Wells and/or SC Felsman as pleaded in the preceding two paragraphs the Applicant has suffered:

(a)    the harm as pleaded at paragraphs 34 and 35 above;

(b)    the loss and damage as pleaded at paragraph 74 below.

6    On 17 March 2026, the State lodged for filing the Interlocutory Application, which sought the following orders:

1.    An order pursuant to rule 16.21 of the Federal Court Rules 2011 (Cth) that paragraphs 57 to 59 of the Applicant’s Amended Statement of Claim, filed on 17 February 2026, be struck out on the basis that the pleading fails to disclose a reasonable cause of action; or

2.    In the alternative, an order pursuant to rule 26.01 of the Federal Court Rules 2011 (Cth) that the proceeding be partially dismissed in relation to the cause of action pleaded at paragraphs 57 to 59 of the Applicant’s Amended Statement of Claim, filed on 17 February 2026, because no reasonable cause of action is disclosed;

3.    Costs; and

4.     Such other further or other orders as the Court may considerer appropriate.

7    The Interlocutory Application is supported by an affidavit of Mr Oliver Fitzgerald, affirmed and lodged for filing on 17 March 2026 (Fitzgerald Affidavit).

8    Against that factual background, I will now consider the parties’ submissions concerning the Interlocutory Application.

SUBMISSIONS OF THE PARTIES

The State’s Submissions

9    The State relied on the Fitzgerald Affidavit in support of the Interlocutory Application. The Fitzgerald Affidavit exhibits correspondence between the parties concerning the viability of Mr Singh’s negligence and breach of statutory duty claims against the QPS officers. It records that the State informed Mr Singh that those claims were said to have no reasonable prospects of success and that, although Mr Singh subsequently removed one police-related allegation in the Amended Statement of Claim, the claims against Senior Constable Wells and Senior Constable Felsman were maintained (at [2]-[6] of the Fitzgerald Affidavit).

10    On 17 March 2026, the State lodged for filing six pages of written submissions in support of the Interlocutory Application (the State’s Submissions). In summary, the State submitted that:

    Paragraphs 57 to 59 of the Amended Statement of Claim should be struck out, or alternatively dismissed, because the pleaded claims in negligence and breach of statutory duty disclosed no reasonable cause of action.

    Senior Constable Wells and Senior Constable Felsman did not owe Mr Singh a duty of care in the exercise of their investigative and law enforcement functions, and the negligence claim therefore disclosed no reasonable cause of action and cannot succeed.

    Various authorities (including Tame v New South Wales [2002] HCA 35; (2002) 211 CLR 317 at 396 [231], Sullivan v Moody [2001] HCA 59; (2001) 207 CLR 562 at [60], and Dorante-Day v State of Queensland [2025] QSC 248 at [42]) establish that police officers conducting investigations do not owe a duty of care to persons the subject of investigation, or to persons seeking a police investigation.

    Mr Singh’s claim for breach of statutory duty disclosed no reasonable cause of action and was “doomed to fail” as neither the PSA Act, nor the PPR Act, disclose any legislative intention to confer a private right of action for breach of the duties imposed under those Acts. That interpretation of the PSA Act and PPR Act is consistent with the relevant authorities, including Dorante-Day and Gibbs v Commissioner of Police & State of Queensland [2000] QCA 33.

11    On 13 April 2026, the State filed a further five pages of written reply submissions (the State’s Reply Submissions). In summary, the State submitted that:

    The issues raised by Mr Singh had already been considered and answered in the negative, in that there are multiple authorities which have rejected the proposition that police officers conducting investigations owe a duty of care to the subject of the investigation, and the Dorante-Day decision (at [42]) determined that a statutory right of action does not relevantly exist under the PPR Act or PSA Act.

    Mr Singh’s central response was that there is no authority determining that no tortious duty of care existed in the circumstances and that, in relation to Mr Singh’s statutory claim, Dorante-Day is arguably “plainly wrong”. Those contentions should not be accepted.

    In relation to the negligence claim, the State repeated and relied upon the authorities identified in the State’s Submissions, including the observation in Tame that “[i]t is unlikely that an investigating police officer owes a duty of care to a person whose conduct is under investigation” because such a duty would be inconsistent with the police officer’s duty to investigate the conduct in question.

    In relation to Mr Singh’s statutory claims, “plainly wrong” is a high bar and there is a distinction between arguing that the Supreme Court could have decided Dorante-Day differently, and identifying error in that decision.

    Mr Singh’s contention that the Supreme Court in Dorante-Day did not take various matters into account was insufficient to establish error, because the fact that matters are not referred to in a judgment does not mean that they were not considered and, in any event, none of those matters gave rise to a conclusion of error.

    The provisions of the PSA Act relied upon by Mr Singh, which refer to liability, deal with specific and self-contained circumstances, and do not support the existence of a statutory right of action in the present case.

    Parliament has expressly provided remedies for non-compliance within the PPR Act, including through s 7 of that Act, and the availability of those remedies is often confirmation that no other private civil remedy existed.

    The OPM expressly provides that non-compliance may constitute grounds for disciplinary action.

    Section 10.5 of the PSA Act, which provides a statutory immunity from civil liability for individual police officers and transfers liability to the State, did not bolster a conclusion that either the PSA Act or the PPR Act conferred a cause of action for breach of the relevant statutory duties.

    Mr Singh has not shown that Dorante-Day was plainly wrong and the Court should accept that neither the PSA Act, nor the PPR Act, contains any express indication that a private cause of action could be pursued.

12    At the hearing on 15 April 2026, Counsel for the State reiterated several of the State’s Submissions and made further oral submissions, which can be summarised as follows:

    Mr Singh’s negligence claim cannot succeed because, to establish negligence, Mr Singh would have had to first establish that the police officers owed him a duty of care. Multiple authorities, including Tame and Sullivan, have found that investigating officers do not owe a tortious duty of care to the person being investigated.

    The present case concerned a “standard investigative process” involving “asking questions” and “acting on the answers” rather than the type of “specific extreme situations” in which such a duty has been recognised, such as those identified in Abood v State of Queensland [2024] QSC 225 at [23].

    Mr Singh’s pleaded case was not confined to alleged failures to provide rights, cautions, a lawyer or an interpreter, but was based on the allegation that the QPS officers “ought to have believed” Mr Singh rather than the two witnesses and therefore ought not to have formed a reasonable suspicion of offending.

    The claim is undermined because many of the rights and obligations pleaded by Mr Singh only apply to indictable offences rather than the summary offence for which the Notice to Appear was initially issued.

    The provisions of the PPR Act relied on by Mr Singh, including ss 38 and 225, regulate liability that arises outside the PPR Act and do not create a source of liability or suggest that non-compliance with obligations in the PPR Act gives rise to an enforceable civil cause of action.

    References in the PPR Act to the word “right” and the compensation mechanism in s 804 of the PPR Act did not, and do not, undermine the conclusion reached in Dorante-Day, because the PPR Act provides compensation only in limited circumstances and that is consistent with the conclusion that a right of action does not otherwise exist.

    The OPM is an administrative document created under s 4.91 of the PSA Act which sets out various aspects of how the police do their work and provides directions to all QPS officers. The OPM did not, and does not, confer an enforceable statutory right of action upon members of the public.

Mr Singh’s Submissions

13    On 1 April 2026, Mr Singh filed 27 pages of written submissions extensively addressing the Interlocutory Application (Mr Singh’s Submissions). In summary, Mr Singh submitted that:

    The State’s application for summary dismissal and strike out should be approached with caution because summary dismissal is an extreme measure, the Court should not stultify the development of the law, and the negligence and breach of statutory duty claims should only be dismissed if it is clear that there is no real question to be tried and no reasonable prospect of success. That approach is supported by “a large body of authority”, including General Steel Industries v Commissioner of Railways [1964] HCA 69; (1964) 112 CLR 125 at 128-129; Dey v Victorian Railways Commissioners [1949] HCA 1; (1949) 78 CLR 62 at 91 and Spencer v Commonwealth [2010] HCA 28; (2010) 241 CLR 118 at [24]-[26].

    The duties pleaded by Mr Singh are directed to ensuring that he was afforded his statutory and common law rights before being questioned and charged, including rights relating to: the presence of a lawyer, friend, relative and/or interpreter; cautions; reasonable suspicion; and compliance with the PPR Act, OPM and HR Act. The QPS officers, Senior Constable Wells and Senior Constable Felsman, were under a legal duty to take reasonable care to avoid loss and damage being occasioned upon Mr Singh.

    The State’s submissions “significantly oversimplify what is a complex and still developing area of law regarding novel duties of care owed by police officers in nuanced and particular circumstances”.

    For the purposes of resisting the Interlocutory Application, it is not necessary for Mr Singh to prove that a duty of care was owed, but only to establish that “it is at least arguable” that a duty of care existed once the facts are determined at trial.

    In relation to the negligence claim, established authority (for example, New South Wales v Spearpoint [2009] NSWCA 233 at [9] and [31]) reveals that Australian courts have not embraced the notion of “absolute immunity for police officers at common law”. There may be exceptions to the general proposition that investigative police officers do not owe duties of care, and whether such a duty arises requires a close examination of the relevant statutory regime and the facts found at trial. This is consistent with various authorities, including Smith v State of Victoria [2018] VSC 475; (2018) 56 VR 332 at [170]-[173].

    There does not appear to exist an authority which has determined that no duty of care can exist in the specific circumstances pleaded in the Amended Statement of Claim, and the existence of such a duty should therefore be assessed by reference to the salient features of the relationship between Mr Singh and the QPS officers.

    While authorities have denied duties of care in various policing contexts (as identified in State of Victoria v Richards [2010] VSCA 113; (2010) 27 VR 343 at [14]), the law does not require a “stark choice between an unfettered discharge of law enforcement responsibilities and the protection of members of the public from unnecessary harm”, and police officers may owe duties of care in particular circumstances. That approach is consistent with the High Court’s observations in Sullivan at [56]-[60] and the authority in Richards at [20].

    The relevant statutory regime comprising the PPR Act, the PSA Act, the OPM and the HR Act should be considered together in determining whether it is appropriate to recognise a common law or statutory duty of care.

    It is “at least arguable” that Dorante-Day is “plainly wrong” in concluding that neither the PSA Act nor the PPR Act confers a cause of action, because the pleaded duties of care in Dorante-Day were markedly different from those pleaded by Mr Singh and a number of important provisions of the PPR Act were not considered in that decision. The decision in Dorante-Day is not binding on this Court.

    The PPR Act seeks to “ensure fairness to, and protect the rights of, persons against whom police officers exercise powers under this Act”, employs the language and intention of protecting individual rights, and contains protections for particular classes of persons including persons who are not proficient in English.

    Section 10.5 of the PSA Act, which was not considered in Dorante-Day, expressly contemplates the “civil liability of police officers”, including liability for claims “based in tort” and “breach of statutory duty”, and demonstrates that Parliament did not confer a blanket immunity from civil liability on the QPS officers or the State.

    The OPM and HR Act further support the recognition and content of the duties alleged by Mr Singh because they are directed to protecting particular classes of vulnerable persons and ensuring lawful decision-making that respects and promotes human rights.

    The salient features of foreseeability, control, vulnerability, reliance, proximity, knowledge and responsibility support recognition of a duty of care, because Mr Singh was a vulnerable person who was not proficient in English, wholly relied upon the proper exercise of police powers, and was exposed to reasonably foreseeable harm if his rights were denied.

    The alleged duties owed to Mr Singh are not “irreconcilable” with duties owed by police officers to the public at large because they concern narrow mandatory preconditions to lawful questioning and investigation, rather than general investigative or prosecutorial duties.

    Recognising a duty of care would not expose the State to indeterminate liability, would be consistent with community expectations concerning the treatment of vulnerable persons and the protection of human rights, and could improve compliance with lawful obligations, training and instructions.

    In light of the authorities in Byrne v Australian Airlines Ltd [1995] HCA 24; (1995) 185 CLR 410 at 424 and Gardiner v State of Victoria [1999] VSCA 100; [1999] 2 VR 461 at [21], it is “at least arguable” that the relevant statutory regime was intended to confer a cause of action for breach of statutory duty, and that Mr Singh falls within the class of persons for whose benefit the statutory duties were imposed.

    Numerous questions of fact, law and mixed fact and law remain in dispute, including questions concerning compliance with the PPR Act, the PSA Act and the OPM, Mr Singh’s English proficiency, the existence and content of any duty of care, and whether the police officers acted reasonably, all of which should be determined at trial rather than on a summary basis.

    Mr Singh’s negligence and breach of statutory duty claims would add little to the complexity or cost of the proceeding, because the RD Act and misfeasance claims are proceeding to trial, meaning that any additional evidence or submissions “will not be unreasonable or disproportionate in the circumstances”.

    The State has failed to surmount the “high bar” applicable to summary dismissal and strike out applications, such that Mr Singh’s negligence and breach of statutory duty claims are not “so hopelessly inarguable” as to justify summary judgment and should be determined at trial.

    Mr Singh reserves his right to be heard on costs after perusing these reasons.

14    At the hearing on 15 April 2026, Counsel for Mr Singh reiterated several of Mr Singh’s Submissions and made further oral submissions which can be summarised as follows:

    The facts of Mr Singh’s case are distinguishable from authorities such as Hill v Chief Constable of West Yorkshire [1987] UKHL 12; [1989] AC 53, Sullivan and Tame, because those cases concerned different relationships, different duties and very different factual settings from those pleaded by Mr Singh.

    Mr Singh’s pleaded case concerns 13 specific duties arising from the PPR Act, the PSA Act and the OPM, including duties concerning interpreters, cautions, access to a lawyer and rights protections, rather than a broad public duty owed to the community at large. If the police officers had complied with their obligations by reading rights and cautions in a language Mr Singh could understand, providing an interpreter, allowing him to contact a lawyer and allowing him speak to his sister, Mr Singh “wouldn’t have a case”.

    It is at least arguable that the circumstances are “exceptional” because Mr Singh had a limited ability to understand and speak English, requested an interpreter, requested a lawyer, requested to contact his sister and was nevertheless questioned without those protections being afforded to him.

    There are no irreconcilable or conflicting duties because Mr Singh accepted that the QPS officers owed a duty to investigate the complaint made by the two witnesses, but contended that the QPS officers also owed a confined duty to Mr Singh to ensure that he could understand the questioning process.

    The Court should not “stultify the development of the law” because this is a developing area involving a novel duty of care in factual circumstances that, so far as Counsel was aware, have not previously been considered by an Australian court.

    The Court should not follow Dorante-Day as determinative because that case is distinguishable, involved an unrepresented litigant, and did not consider the full statutory regime, including s 10.5 of the PSA Act, which expressly concerns the “civil liability of police officers” and refers to claims including “breach of statutory duty”.

    Provisions such as ss 5(e), 7 and 9 of the PPR Act employ the language of individual rights, fairness, obligations and liabilities, while ss 418, 419, 431 and 433 of the PPR Act use mandatory language requiring police officers to afford particular protections to persons being questioned.

    The OPM is issued pursuant to s 4.9 of the PSA Act, police officers “are to comply” with its contents, and its provisions concerning vulnerable persons, human rights and impartial decision-making are relevant to the duties alleged by Mr Singh.

    The disciplinary mechanisms identified by the State do not provide an adequate alternative remedy, and the existence of internal disciplinary processes does not negate an arguable cause of action for breach of statutory duty.

Relevant Legislative Scheme

15    Before considering the submissions summarised above, it is appropriate to outline the relevant legislative framework.

16    Rule 16.21 of the Federal Court Rules 2011 (Cth) (FCR) provides as follows:

(1)    A party may apply to the Court for an order that all or part of a pleading be struck out on the ground that the pleading:

(a)    contains scandalous material; or

(b)    contains frivolous or vexatious material; or

(c)    is evasive or ambiguous; or

(d)    is likely to cause prejudice, embarrassment or delay in the proceeding; or

(e)    fails to disclose a reasonable cause of action or defence or other case appropriate to the nature of the pleading; or

(f)     is otherwise an abuse of the process of the Court.

(2)    A party may apply for an order that the pleading be removed from the Court file if the pleading contains material of a kind mentioned in paragraph (1)(a), (b) or (c) or is otherwise an abuse of the process of the Court.

17    Relevant principles for consideration by the Court when determining whether to apply r 16.21 of the FCR are well-settled. In KTC v David [2022] FCAFC 60 Wigney J observed:

123.    A “reasonable cause of action”, for the purposes of r 16.21(1)(e) of the Rules, is a cause of action that has some chance of success having regard to the allegations pleaded: Polar Aviation Pty Ltd v Civil Aviation Safety Authority (2012) 203 FCR 325; [2012] FCAFC 97 at [42]-[43]. A cause of action cannot be struck out merely on the basis that it appears to be weak: Allstate at 236.

124.    If substantial parts of a pleading are struck out, the Court may strike out the entire pleading on the basis that the “residue would be confusing”: Trade Practices Commission v Australian Iron & Steel Pty Ltd (1990) 22 FCR 305 at 323.

125.    Normally the power to strike out should be exercised only in plain and obvious cases, where no reasonable amendment could cure the alleged defect or deficiency: Allstate at 236. The power is discretionary and should be employed sparingly and only in a clear case “lest one deprive a party of a case which in justice it ought to be able to bring”: Trade Practices Commission v Pioneer Concrete (Qld) Pty Ltd (1994) 52 FCR 164 at 175.

(emphasis added)

18    More recently, in Safarimaznabi v Federal Commissioner of Taxation (No 2) [2026] FCA 712 at [19], SC Derrington J observed that “a pleading will fail to disclose a reasonable cause of action if it is not apparent that the facts pleaded, even if proved, would establish the cause of action alleged”. Her Honour further said at [20] that:

The Court’s focus on such an application is on the adequacy and sufficiency of the pleadings alone. The Court is not concerned with consideration of facts or evidence outside the pleadings. A statement of claim must plead all the material facts for the purpose of formulating a complete cause of action against an alleged wrongdoer. If it does not, the pleading may be struck out, notwithstanding there may be evidence that shows a person may have a reasonable cause of action or reasonable prospects of success: Farah Custodians Pty Ltd v Commissioner of Taxation [2018] FCA 1185 at [93] per Wigney J, citing Bruce v Odhams Press Ltd [1936] 1 KB 697 at 712-713; Webb v Commonwealth of Australia [2021] FCA 1215 at [6] per Abraham J.

19    Ordinarily, where a pleading is struck out pursuant to r 16.21 of the FCR, the Court will grant the affected party leave to replead. Leave will not generally be refused unless the case is a clear one, and any further amendment would be incapable of curing the defects in the pleading: DHI22 v Qatar Airways Group QCSC (No 1) [2025] FCAFC 91; (2025) 310 FCR 361 at [187], as approved in EER26 v Australian Financial Complaints Authority Ltd [2026] FCA 1057 at [42]; Barron v Australian Financial Complaints Authority [2026] FCA 673 at [20].

20    Rule 16.21 of the FCR should be distinguished from r 26.01 of the FCR (KTC at [130]), on which the State alternatively relied. Rule 26.01 of the FCR relevantly provides:

26.01    Summary judgment

(1)    A party may apply to the Court for an order that judgment be given against another party because:

…

(c)    no reasonable cause of action is disclosed; or

21    Rule 26.01 is to be compared with s 31A(2)-(3) of the Federal Court of Australia Act 1976 (Cth) (FCA Act) which provides that:

…

(2)     The Court may give judgment for one party against another in relation to the whole or any part of a proceeding if:

(a)    the first party is defending the proceeding or that part of the proceeding; and

(b)    the Court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceeding or that part of the proceeding.

(3)    For the purposes of this section, a defence or a proceeding or part of a proceeding need not be:

(a)    hopeless; or

(b)    bound to fail;

for it to have no reasonable prospect of success.

22    In Mpinda v Fair Work Commission [2022] FCA 1111, Feutrill J made the following observations about r 26.01 of the FCR and s 31A of the FCA Act:

23.     Rule 26.01(1) also includes ‘no reasonable cause of action is disclosed’ as a ground for judgment. It seems to me that there is not a great deal of difference between an absence of a reasonable cause of action and a proceeding or part of a proceeding for which there is no reasonable prospect of a successful prosecution. However, there may be circumstances in which a reasonable cause of action is disclosed yet there is no reasonable prospect of successfully prosecuting that cause of action. For example, because the evidence necessary to prove the material facts at trial is not available: White Industries Aust Ltd v Federal Commissioner of Taxation [2007] FCA 511; (2007) 160 FCR 298 at [51]. Otherwise, if it is demonstrated that no reasonable cause of action is disclosed for the purposes of summary judgment under r 26.01(1), as opposed to the failure to disclose a reasonable cause of action in a statement of claim for the purposes of a strike-out under r 16.21(2), it will also be demonstrated that there is no reasonable prospect of successfully prosecuting the proceeding or that part of the proceeding to which the applicable cause of action relates.

24.    Section 31A is not an appropriate procedure for applying to strike-out the relief sought in an originating application. The relevant question on an application under s 31A is whether the applicant has no reasonable prospect of successfully prosecuting the proceeding or part of the proceeding. Put another way, the question is not whether the applicant has no reasonable prospect of obtaining the relief claimed in the originating application. The Court gives judgment in respect of the issues as these amount to a cause of action in the proceedings. If the applicant proves facts that amount to a cause of action, the Court will give judgment for the applicant on the cause of action and fashion the relief to which the applicant is entitled. If the applicant fails to prove facts that amount to a cause of action, the Court will not give judgment by dismissing the relief claimed, but by dismissing the proceedings: Noble Investments at [34].

(emphasis added)

23    See also principles set out by Wigney J in KTC at [127]-[132], as followed more recently in such cases as Mkrtchyan v Stirling [2026] FCA 1166 at [19]-[20], and Lal v Royal Australasian College of Physicians [2025] FCA 348 at [37].

24    More recently, Goodman J observed in Young v Accenture Australia Pty Ltd (No 2) [2026] FCA 444 at [66] that:

In considering the exercise of the discretion to summarily dismiss a proceeding in whole or in part, it is important to bear in mind that:

(1)    the power to do so is to be exercised with caution and should not be exercised unless it is clear that there is a high degree of certainty as to the outcome of the proceeding were it is allowed to proceed to trial: Spencer v The Commonwealth of Australia [2010] HCA 28; (2010) 241 CLR 118 at 131 to 132 [24] (French CJ and Gummow J); and

(2)    the existence of authority which appears to preclude reliance upon particular propositions of law on which the case brought depends does not necessarily provide a basis for summary dismissal. As French CJ and Gummow J explained in Spencer at 132 [25], existing authority may be overruled, qualified or further explained and summary processes must not be used to stultify the development of the law. The position may be different where the existing authority is a binding decision of the High Court of Australia.

25    I gratefully adopt these principles. While the State has not applied for summary dismissal under s 31A of the FCA Act, the authorities discussed indicate that the considerations relevant to the exercise of that power substantially overlap with those arising under r 26.01(1)(c) of the FCR. As Goodman J noted in Young at [65]:

As is plain, the standard of “no reasonable prospect of successfully prosecuting the proceeding” is common to both s 31A of the FCA Act and r 26.01(1)(a) of the Rules. The standard in r 26.01(1)(a) is in effect identical to the standard in s 31A of the FCA Act and accordingly, the principles outlined above also apply to r 26.01(1)(a): Quach at 133 [11]; Prior at [27]; Mpinda at [21]; DRA Global at [54].

(see also Goodman J’s remarks in Blissett v Minister for Immigration, Citizenship, Migration Services and Multicultural Affairs [2026] FCA 349 at [13]).

26    Relevant to the current proceedings, both provisions contemplate summary disposition where “no reasonable cause of action” is disclosed: KTC at [129]. In those circumstances, I am satisfied that the principles governing the exercise of the power under s 31A of the FCA Act are also instructive in considering the State’s Interlocutory Application under r 26.01(1)(c) of the FCR.

CONSIDERATION

27    I am not satisfied that the orders sought by the State in the Interlocutory Application should be made. I have formed this view for the following reasons.

Negligence Claim

28    The State submitted that the negligence claim is defective at a threshold level because the pleaded facts are incapable of establishing that the State or the QPS officers owed Mr Singh a duty of care in the exercise of their investigative functions.

29    Consistently with the principles I have set out, the task presently before the Court is not to determine finally the parties’ substantive dispute, but rather to assess the Interlocutory Application, without prejudging questions that may ultimately arise for determination at trial. As Brennan CJ and McHugh J said in Jackamarra v Krakouer [1998] HCA 27; (1998) 195 CLR 516 at [7] (albeit in the context of an interlocutory application for an extension of time):

… But the merits of the appeal are not a relevant consideration where the application concerns an extension of time for taking a step in prosecuting the appeal unless, unusually, the Court can be satisfied that the appeal is so devoid of merit that it would be futile to extend time. The merits are examined at the end of the process, not during its course …

(emphasis added)

30    As such, the Court is not being asked to determine whether a duty of care is ultimately owed to Mr Singh. Rather, the Court is being asked to conclude at an interlocutory stage that the pleaded claim has no reasonable prospect of success and should therefore be struck out or dismissed.

31    The authorities do not presently support such a conclusion.

32    The State relied on various authorities, including Sullivan, Tame, Wilson v State of New South Wales [2001] NSWSC 869; (2001) 53 NSWLR 407, Cran v State of New South Wales [2004] NSWCA 92; (2004) 62 NSWLR 95, Groom v State of South Australia [2017] SASCFC 35, Abood and, more recently, Dorante-Day. There is considerable force in the State’s submission that those authorities establish a strong reluctance on the part of Australian courts to recognise duties of care owed by police officers to persons the subject of police investigations. As the High Court observed in Tame (at [231]), it is ordinarily unlikely that an investigating police officer owes a duty of care to a person whose conduct is under investigation because such a duty may be inconsistent with the officer’s statutory and common law obligations to investigate suspected offending. Similar concerns underpin the reasoning in Sullivan (at [60]), where the High Court emphasised the difficulty of recognising duties that would conflict with the performance of public investigative functions.

33    I accept the State’s submission that many of the authorities relied upon by it proceed upon concerns regarding conflicting duties. At the hearing, Counsel for the State emphasised that Mr Singh’s Amended Statement of Claim does not merely allege failures concerning interpreters, cautions and access to legal assistance. Rather, it also alleges, in substance, that the officers could not reasonably have suspected that Mr Singh had committed an offence and should have accepted his explanation instead of the accounts given by the complainants. There is merit in the submission that allegations of that kind bear resemblance to the types of investigative decisions that courts have historically been reluctant to subject to negligence claims.

34    Equally, however, I am not persuaded that the authorities relied upon by the State establish the broader proposition for which the State contends, namely that the causes of action pleaded in this case are incapable of succeeding as a matter of law.

35    I accept Mr Singh’s submission that Australian law has not recognised a blanket immunity shielding police officers from all negligence claims arising during the exercise of police functions. As submitted by Mr Singh, and observed in various authorities (see for example, Spearpoint at [9] and [31] and Smith at [170]), there is no authoritative Australian decision establishing an absolute immunity for police officers in respect of conduct undertaken in the course of their duties. In those circumstances, I agree with Dixon J’s finding in Smith (at [170]-[173]) that whether a duty of care arises must be determined by close examination of the facts and that the inquiry is ultimately “fact rich and fact intensive”.

36    I am also not persuaded that this case can presently be characterised as indistinguishable from the authorities relied upon by the State. Mr Singh’s case, as pleaded, was not simply that police officers investigated him and reached the wrong conclusion. Rather, the Amended Statement of Claim pleaded that Mr Singh was a person with limited English proficiency, that he requested an interpreter, requested legal assistance and requested to communicate with his sister, and that those requests were not accommodated. Mr Singh further alleged that mandatory statutory protections directed to vulnerable persons and persons being questioned by police were not observed.

37    Whether those allegations are ultimately established is a matter for trial. Likewise, whether the evidence establishes that Mr Singh was in fact unable to understand the questioning process, whether the officers were aware of any such inability, whether statutory obligations were engaged in the circumstances, and whether any failures caused the loss alleged, are matters which remain contentious.

38    Importantly, in my view, those are not merely factual disputes. They are matters which may bear directly upon the legal characterisation of the relationship between Mr Singh and the police officers and the existence, scope and content of any duty of care alleged.

39    Furthermore, I accept Mr Singh’s submission that, if the proposed duty is characterised narrowly, it is not immediately apparent that it gives rise to the same policy concerns identified in authorities such as Tame and Sullivan. Counsel for Mr Singh expressly accepted at the hearing that the police owed duties to investigate the complaints made by the witnesses and did not contend otherwise. Rather, Counsel for Mr Singh argued that a narrower duty existed to ensure that Mr Singh could understand the questioning process and avail himself of procedural protections said to arise under the statutory regime. Whether that distinction ultimately withstands scrutiny is a question for the final hearing. However, it demonstrates why I am presently unable to conclude that the negligence claim is plainly hopeless.

40    The State repeatedly submitted that the circumstances pleaded by Mr Singh do not transform the case from the “ordinary” to the “extraordinary” or “exceptional”. There may ultimately be force in that submission. However, determining whether the circumstances are properly characterised as routine investigative conduct, or whether they relevantly involve different considerations arising from the alleged failure to provide an interpreter, legal assistance and other protections, necessarily depends upon factual findings which have not yet been made.

41    In this respect, the observations of Dixon J in Smith (at [170]-[171]) are particularly apposite. I am not persuaded that the existence of any duty of care can presently be determined without resolution of factual matters central to Mr Singh’s case.

42    The State also submitted that the claim is undermined because many of the rights relied upon by Mr Singh are said only to arise in respect of indictable offences rather than the summary offence for which the Notice to Appear was initially issued. That contention itself involves questions concerning the facts and operation of the statutory regime which are better determined with the benefit of a complete evidentiary record.

43    More broadly, I am mindful of the observations of French CJ and Gummow J in Spencer (at [25]) that summary procedures must not be employed in a way which stultifies the development of the law. While I do not suggest that the law currently favours recognition of the duty pleaded by Mr Singh, neither am I satisfied that existing authority forecloses it so completely that the negligence cause of action should be struck out or terminated summarily.

44    In those circumstances, and considering the authorities in KTC and Safarimaznabi, I am not satisfied that the negligence cause of action pleaded at [57]-[59] of the Amended Statement of Claim discloses no reasonable cause of action within the meaning of r 16.21 or r 26.01 of the FCR.

Breach of Statutory Duty

45    The State further contended that the claim for breach of statutory duty is defective because the PSA Act, the PPR Act and the OPM do not disclose a legislative intention to confer a private right of action for breach.

46    The State relied heavily upon the recent decision of Copley J in Dorante-Day. In Dorante-Day, Copley J undertook a detailed examination of the PSA Act and the PPR Act and concluded (at [30]-[32]) that neither statute disclosed a legislative intention to confer a private right of action for breach of statutory duty. In particular, Copley J considered the objects and purposes of both Acts and concluded that they were directed to the general good rather than the protection of a limited class of individuals. His Honour also attached significance to the existence of express enforcement mechanisms, including disciplinary processes and provisions such as ss 7 and 804 of the PPR Act (Dorante-Day at [30] and [33]-[35]).

47    Dorante-Day provides support for the State’s position. Nonetheless, for the following reasons, I am not persuaded that the existence of Dorante-Day is sufficient, of itself, to warrant striking out the claim.

48    First, as contended in Mr Singh’s Submissions and by Counsel for Mr Singh at the hearing, Dorante-Day is not binding upon this Court.

49    Second, the authorities concerning summary dismissal make clear that a claim should not ordinarily be terminated merely because existing authority appears to present difficulties. As Goodman J observed in Young at [66], citing Spencer at [25], existing authority may be qualified, explained or developed and summary procedures should not be used to prevent properly arguable legal development.

50    Third, Mr Singh advanced more elaborate arguments concerning statutory construction than were apparently considered in Dorante-Day. I express no view at this stage as to whether those arguments are ultimately correct. However, they are not fanciful.

51    In particular, at the hearing, Counsel for Mr Singh relied upon various provisions of the PPR Act which employ the language of individual rights and protections, such as s 5(e) of the PPR Act, which refers to ensuring fairness to and protecting the rights of persons against whom police powers are exercised. Counsel for Mr Singh pointed to provisions such as ss 418, 419, 431 and 433 of the PPR Act, which were not expressly considered in Dorante-Day. Counsel for Mr Singh argued that those provisions employ mandatory language and confer specific protections in relation to questioning, interpreters and communication with lawyers and others. Mr Singh further relied upon s 10.5 of the PSA Act, which was also not referred to in Dorante-Day, contending that s 10.5 supports an inference that Parliament contemplated civil liability arising from police conduct, including claims based upon breach of statutory duty.

52    The State disputed the significance of those provisions and submitted that the provisions merely regulate liability arising independently of the PPR Act and PSA Act, rather than creating new sources of liability. However, it cannot presently be said that Mr Singh’s alternative construction arguments are entirely untenable.

53    Significantly, I note that substantial parts of the hearing before me were devoted to competing arguments between the parties regarding the interpretation and significance of s 10.5 of the PSA Act (see for example, transcript QUD496/2025 15 April 2026 p 20 lines 40-47; p 21 lines 1-11; p 22 lines 8-11; p 23 lines 44-47; p 24 lines 1-5; p 39 lines 23-33; p 45 lines 36-47; p 46 lines 1-45; p 47 lines 1-46; p 57 lines 12-13; p 60 lines 9-21). Counsel advanced detailed submissions concerning the text of that provision, the 2014 amendments and associated extrinsic materials. The very fact that such detailed arguments were made illustrates the difficulty of characterising the issue as one that is plain, obvious and incapable of genuine debate.

54    Moreover, Mr Singh also relied upon the broader statutory context, including the HR Act, the PPR Act, the PSA Act and the OPM. Whether those instruments collectively assist in discerning a legislative intention to confer a private right of action is ultimately a question of statutory interpretation which should be determined on the basis of fully developed legal argument rather than summarily dismissed at this stage.

55    The State submitted that the OPM cannot independently confer an enforceable cause of action and that it merely operates as an internal administrative document. However, properly understood, Mr Singh’s argument appears to be directed not to the proposition that the OPM independently creates private rights, but rather to the proposition that it informs the content of obligations arising under the broader statutory scheme and the duties alleged.

56    I also note Mr Singh’s submission that certain statutory provisions are directed to protecting identifiable classes of persons, including persons with limited English proficiency and other vulnerabilities. I am not prepared to characterise that submission as hopeless at this stage.

57    Accordingly, I am not persuaded that the breach of statutory duty cause of action pleaded at [57]-[59] of the Amended Statement of Claim discloses no reasonable cause of action within the meaning of r 16.21 or r 26.01 of the FCR.

Conclusion

58    Ultimately, the State bears the burden of persuading the Court that the challenged causes of action disclose no reasonable cause of action and are incapable of success.

59    While the State advanced thoughtful and carefully developed submissions, both before and during the hearing on 15 April 2026, I am not satisfied that the requisite level of certainty has been established.

60    The Interlocutory Application should be dismissed. Costs should follow the event, to be taxed if not otherwise agreed.

Associate:

Dated:    30 October 2026