By Statement of Claim filed 5 December 2016, the Plaintiff has alleged that Sergeant Kieran Richards and Leading Senior Constable were at all relevant times, officers of the NSW Police Force in respect of whom the Defendant was vicariously liable. [1] The pleading alleges that on 5 December 2010, Sergeant Richards suspected that the Plaintiff had committed a criminal offence in the nature of a false representation to police. On 5 December 2010, at approximately 10:30 pm, Sergeant Richards is said to have attended the Plaintiff's home and spoke to the Plaintiff's wife, Mrs Kylie Louise Chapman. [2] It is alleged that a request was made for the Plaintiff's wife to get the Plaintiff to contact Sergeant Richards. At approximately 10:45 pm, the Plaintiff is said to have telephoned Sergeant Richards. Sergeant Richards advised that he wanted to talk to the Plaintiff and asked him if he could come to the police station. The Plaintiff asked if they could talk tomorrow, however Sergeant Richards is asserted to have replied that it would better if he came in tonight. The Plaintiff alleges that he asked if he needed a solicitor and was advised that he did not, but that would "talk about it" when he got to the station. [3]
The pleading goes on to assert that Sergeant Richards formed an intention to charge the Plaintiff with criminal offences in the nature of making a false representation to police when he attended Gosford Police Station, and that Sergeant Richards did not administer a caution to the Plaintiff at that time. [4]
Thereafter, the Plaintiff made his way to Gosford Police Station and went into a room with Sergeant Richards, where it was asserted that the Plaintiff was not free to leave without being charged for a criminal offence. In a conversation, it is asserted that Sergeant Richards informed the Plaintiff about allegations that he had made a series of false complaints about Ms Jenny Davis and Mr Stephen O'Halloran. These complainants had been made to Crime Stoppers and other government organisations; and that by doing so, the Plaintiff had committed criminal offences. It is asserted that the Plaintiff again was not cautioned at that time but proceeded to deny the allegations and then asked a question to the effect: "What's going to happen now?" Sergeant Richards is said to have replied that he would be interviewed, arrested and charged. It is asserted that the Plaintiff thereafter considered that he was under arrest. In these circumstances, this arrest is said to have continued the Plaintiff's false imprisonment until he was released from police custody on 6 December 2010. [5]
The Plaintiff claims damages as a consequence of being falsely imprisoned and this included a claim for exemplary damages. [6]
Despite having consented and ordered to do so on 1 February 2017, no Defence has been filed by the Defendant thus far. Nor is there any evidence that it has requested further and better particulars of the Plaintiff's claim - a matter that the consent orders required be done by 8 February 2017.
Instead the Defendant, by notice of motion filed on 6 April 2017, moved the Court seeking to:-
1. Dismiss the proceedings pursuant to r 13.4(1) of the Uniform Civil Procedure Rules 2005 (NSW); [7] or
2. In the alternative, strike out paragraphs [25], [31] - [33], [44] - [45], [46] and [48] of the Statement of Claim filed by the Plaintiff on 5 December 2016 pursuant to r 14.28(1) of the UCPR.
[3]
Legal principles
The Defendant submitted that the matter is to be considered in in light of the principles in General Steel Industries Inc v Commissioner for Railways (NSW). [8]
That decision was more recently considered by the High Court in Spencer v The Commonwealth. [9] In that case, Hayne, Crennan, Kiefel and Bell JJ emphasised that General Steel and the decision in Dey v Victorian Railways Commissioners [10] need to be understood by reference to the relevant formulation of the basis upon which the decisions were made. In that case, the Court was exercising its "inherent" jurisdiction.
In Spencer, the Court considered the provisions in ss 31A(2) and (3) of the Federal Court Act 1976 (Cth). Those provisions differed from UCPR 13.4(1) in that s 31A(3) of the Federal Court Act 1976 (Cth) provided that a defence or proceedings or part of proceedings would not be hopeless or bound to fail for it to have no reasonable prospect of success. With that proviso, Hayne, Crennan, Kiefel and Bell JJ went on to state:
"[60] … full weight must be given to the expression as a whole. The Federal Court may exercise power under s 31A if, and only if, satisfied that there is "no reasonable prospect" of success. Of course, it may readily be accepted that the power to dismiss an action summarily is not to be exercised lightly. But the elucidation of what amounts to "no reasonable prospect" can best proceed in the same way as content has been given, through a succession of decided cases, to other generally expressed statutory phrases, such as the phrase "just and equitable" when it is used to identify a ground for winding up a company. At this point in the development of the understanding of the expression and its application, it is sufficient, but important, to emphasise that the evident legislative purpose revealed by the text of the provision will be defeated if its application is read as confined to cases of a kind which fell within earlier, different, procedural regimes."
French CJ and Gummow CJ stated:-
"[24] The exercise of powers to summarily terminate proceedings must always be attended with caution. That is so whether such disposition is sought on the basis that the pleadings fail to disclose a reasonable cause of action or on the basis that the action is frivolous or vexatious or an abuse of process. The same applies where such a disposition is sought in a summary judgment application supported by evidence. As to the latter, this Court in Fancourt v Mercantile Credits Ltd said:
'The power to order summary or final judgment is one that should be exercised with great care and should never be exercised unless it is clear that there is no real question to be tried'.
More recently, in Batistatos v Roads and Traffic Authority (NSW) Gleeson CJ, Gummow, Hayne and Crennan JJ repeated a statement by Gaudron, McHugh, Gummow and Hayne JJ in Agar v Hyde which included the following:
'Ordinarily, a party is not to be denied the opportunity to place his or her case before the court in the ordinary way, and after taking advantage of the usual interlocutory processes. The test to be applied has been expressed in various ways, but all of the verbal formulae which have been used are intended to describe a high degree of certainty about the ultimate outcome of the proceeding if it were allowed to go to trial in the ordinary way.'
There would seem to be little distinction between those approaches and the requirement of a "real" as distinct from "fanciful" prospect of success contemplated by s 31A. That proposition, however, is not inconsistent with the proposition that the criterion in s 31A may be satisfied upon grounds wider than those contained in pre-existing Rules of Court authorising summary dispositions.
[25] Section 31A(2) requires a practical judgment by the Federal Court as to whether the applicant has more than a "fanciful" prospect of success. That may be a judgment of law or of fact, or of mixed law and fact. Where there are factual issues capable of being disputed and in dispute, summary dismissal should not be awarded to the respondent simply because the Court has formed the view that the applicant is unlikely to succeed on the factual issue. Where the success of a proceeding depends upon propositions of law apparently precluded by existing authority, that may not always be the end of the matter. Existing authority may be overruled, qualified or further explained. Summary processes must not be used to stultify the development of the law. But where the success of proceedings is critically dependent upon a proposition of law which would contradict a binding decision of this Court, the court hearing the application under s 31A could justifiably conclude that the proceedings had no reasonable prospect of success (emphasis supplied)."
In the context of the UCPR provisions, Harrison AsJ summarised the law since Spencer in Drake v Wood Marshall Williams Solicitors. [11] Her Honour stated:-
"[18] In O'Brien v Bank of Western Australia Ltd [2013] NSWCA 71, the Court of Appeal applied the High Court decision of Spencer v Commonwealth [2010] HCA 28; (2010) 241 CLR 118. In Spencer, the High Court was concerned with s 31A(2) of the Federal Court Act 1976 (Cth), but the following principles are of general application (O'Brien at [3]):
(a) On a summary judgment application, the real issue is whether there is an underlying cause of action or defence, not simply whether one is pleaded (at [23]).
(b) The critical question can be expressed as whether there is more than a "fanciful" prospect of success (at [25]) per French CJ and Gummow J) or whether the outcome is so certain that it would be an abuse of the process of the court to allow the action to go forward (at [54] in the judgment of the plurality). Demonstration of the outcome of the litigation is required, not an assessment of the prospect of its success.
(c) Powers to summarily terminate proceedings must be exercised with exceptional caution (French CJ at [55] and Gummow J at [24]).
[19] See also General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125, in which Barwick CJ comments that a lack of a cause of action must be "clearly demonstrated" in terms that the case is untenable and cannot possibly succeed (at 128-129).
[20] Recent decisions of this Court and the Court of Appeal demonstrate that the impact of s 56 of the Civil Procedure Act 2005 (NSW) is such as to expand the circumstances where an order for dismissal under UCPR 13.4 may be made.
[21] In Simmons v Protective Commissioner of NSW [2012] NSWSC 455 at [28], Hammerschlag J expressed support for the proposition that the combination of the words in UCPR 13.4(1)(b) and s 56 of the Civil Procedure Act lead to a result that:
'…it is not incumbent on an applicant under this particular rule to establish certainty of outcome, but rather that the applicable test is whether a defendant has demonstrated that a plaintiffs case has no reasonable prospects of success.'
[22] Simmons was subsequently cited by Ward J in McDonald v Grech; Bank of WA v McDonald [2012] NSWSC 717 at [32]-[33].
[23] In Bott v Carter [2012] NSWCA 89, also a dismissal application involving a defence of advocate's immunity, Basten JA observed that while s 56 of the Civil Procedure Act may not reduce the conditions for the engagement of the power to dismiss proceedings under UCPR 13.4, it limits the circumstances in which the court, satisfied that the power is available, might be inclined to refuse relief on discretionary grounds (at [14])."
[4]
Submissions
The Defendant asserted that the Plaintiff's claim for false imprisonment appears to be based on an assertion that Sergeant Richards always intended to charge the Plaintiff upon his attendance at the police station [12] and the claim for false imprisonment is made out by reason that she did not inform the Plaintiff of that intention, yet secured his attendance at the police station for that purpose. Further the Plaintiff relies on the conduct of Sergeant Richardson to support a claim for exemplary damages. [13]
The Defendant asserts that the Statement of Claim does not identify with precision whether it is alleged that Sergeant Richards had no power to arrest the Plaintiff.
It notes that the Plaintiff does not plead that there was no power under s 99 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) [14] to arrest him. However the Defendant asserts that as at 6 December 2010, police had the power to arrest including in circumstances where there was no warrant for an arrest. [15] Accordingly, if they had the power to arrest, any claim of false imprisonment must fail, and the question therefore is whether there is any doubt that Sergeant Richardson had the power to arrest the Plaintiff in the circumstances.
The Defendant draws attention to s 99(2) of the 2002 Act (as at 6 December 2010) which provided:-
99 Power of police officers to arrest without warrant
(2) A police officer may, without a warrant, arrest a person if the police officer suspects on reasonable grounds that the person has committed an offence under any Act or statutory instrument.
By reference to Exhibit A, being NSW COPS Case Report C 42003028, the Defendant submits that the Court should accept that Sergeant Richardson considered that the information that she had gathered was sufficient to arrest and charge the Plaintiff at that stage. The Court should also accept that Sergeant Richardson suspected on reasonable grounds that the Plaintiff had committed offence. To that end it is argued that s 99(2) of the 2002 Act is made out by the Defendant.
Beyond this to effect a lawful arrest, assuming there are otherwise grounds, the police officer must also comply with s 99(3) of the 2002 Act and engage a suspicion on reasonable grounds that it is necessary to arrest the person to achieve one of the identified purposes.
To this end the Defendant asserts that it was open to the Court to find on the material before it, that Sergeant Richardson held the following beliefs:-
"25 the Plaintiff was listed as a suspect in the matter: COPS C42003028 at p.4
(b) The level of harassment of the Plaintiff was extreme with the victims as a consequence of the vexatious complaints by the Plaintiff, having been investigated in the past 10 months by many agencies including Police, Workcover, Fair Trading, ASIC and the taxation Department: COPS C42003028 at p.5
(c) The vexatious complaints included 4 separate anonymous reports to Crimestoppers with the content including gangs, OMG, firearms, drugs and child abuse. Each warranted the initiation of a Police investigation: COPS C42003028 at p.6
(d) The Victims felt harassed as a consequence of the ongoing vexatious complaints: COPS C42003028 at p.3, 5; Court Attendance Notice H619744790, p.3
(e) The Plaintiff was believed to have access to a firearm: COPS C42003028 at p.2
(f) Sgt Richardson considered arrest and charging the plaintiff "is likely to stop the continuance of the calls being made to the various agencies by the POI": COPS C42003028 at p.3"
The Defendant asserts that it is open to the Court to find that, as was stated in the NSW COPS entry at p 4, that the arrest was necessary to achieve the purposes identified in ss 99(3)(b) and (d) of the 2002 Act. To this end, it submits that the fact that after the Plaintiff was charged, he was granted bail conditions that he not, inter alia, harass, threaten or otherwise interfere with the victim, demonstrates the necessity. [16]
The Defendant asserts that the presentation of the Plaintiff after his attendance at the police station cannot be taken into account when looking at whether the decision to arrest was reasonable and lawful. The Court in this respect must only look at what was known to the Defendant, and in the present case that knowledge comprised of:
1. Ongoing and significant harassment of the victims by the Plaintiff;
2. The victims feeling harassed by the Plaintiff;
3. Recent harassing activity of the victims; and
4. A need to stop the harassing activities of the Plaintiff. [17]
The Defendant asserts that this clearly justified the course taken by Sergeant Richardson.
The Defendant further relies on the case notes in the NSW COPS entries in Exhibit A, to ground a finding that the Court could make as matters that Sergeant Richardson had taken into account when determining the course that was to be taken. The presence of that material it is asserts, supports the Defendant's application for dismissal. [18]
The Defendant then draws attention to the decision of this Court in Travers v The State of New South Wales [19] , where Montgomery DCJ relevantly stated:-
"[62] Scrutiny of his exercise of discretion in favour of arrest is not to be at a level of perfection. Hindsight review with the benefit of knowing what occurred whilst the plaintiff remained at the Police Station is not permitted." [20]
The Plaintiff for its part concedes that if the Defendant had a lawful power to arrest him, the claim is not made out. He contends however that the central controversy is a matter that cannot be concluded in an application of this kind. [21]
The Plaintiff draws attention to the fact that the length of the investigation in this matter being some five months, undermining the urgency and the necessity of the arrest. [22] It asserts that the level of harassment referred to by the Defendant must be given less weight in the objective assessment of Sergeant Richards' grounds to arrest, as she refrained from arresting the Plaintiff for three months after recording what is described as her knowledge of that harassment. It is asserted that the harassment could not have been a primary consideration for the arrest on 6 December 2010, although it may have been, validly, a consideration in relation to bail conditions. [23] However, that was not a lawful basis on which to arrest a person present at a police station. [24]
The Plaintiff asserts that the arrest was not reasonably necessary and that the Defendant conflated arrest and charge. It was asserted that there was insufficient evidence before the Court to conclude that Sergeant Richards considered whether charging and imposing bail conditions would be likely to stop the continuance of the calls being made. [25]
To this end, it argues that the concerns that may have existed pursuant to ss 99(3)(b) and (d) of the 2002 Act could have been addressed by the imposition of bail conditions without the exercise of the powers of arrest, bearing in mind the provisions of s 17 of the Bail Act 1978 (NSW). [26]
The Defendant argued in reply that s 17 of the 1978 Act only applied to an "accused person", which was defined in s 4(2) of that Act to mean a person "charged with, convicted of or found guilty of an offence".
[5]
Analysis
The relevant principles relating to s 99 of the 2002 Act were set out by Basten JA in Dowse v State of New South Wales [27] :-
"[12] It is convenient to focus first on the power of arrest, as that was the power accepted by the trial judge as the basis on which the conduct of the officers was to be justified: Judgment at pp 28 and 32. So far as offensive language and, potentially, the offences of hinder police and enter inclosed lands were concerned, the relevant power was that found in s 99(2) permitting an officer to arrest if he or she suspected on reasonable grounds that the person had committed an offence. That condition involves an actual and honestly held suspicion on the part of the officer for which, in addition, there must be reasonable grounds. As explained by Lord Hope of Craighead in O'Hara v Chief Constable of the Royal Ulster Constabulary [1997] AC 286 at 298, referring to similar language in the Prevention of Terrorism (Temporary Provisions) Act 1984 (UK), s 12, as to the applicable test:
'It relates entirely to what is in the mind of the arresting officer when the power is exercised. In part it is a subjective test, because he must have formed a genuine suspicion in his own mind that the person has been concerned in acts of terrorism. In part also it is an objective one, because there must also be reasonable grounds for the suspicion which he has formed. But the application of the objective test does not require the court to look beyond what was in the mind of the arresting officer. It is the grounds which were in his mind at the time which must be found to be reasonable grounds for the suspicion which he has formed. All that the objective test requires is that these grounds be examined objectively and that they be judged at the time when the power was exercised'"(emphasis supplied). [28]
Later his Honour stated:-
"[26] While it is true, as Lord Hope explained in O'Hara, that there are two elements to be satisfied for a warrantless arrest to be valid, namely an honestly held suspicion in the mind of the arresting officer and information in the mind of the arresting officer which when objectively assessed provides reasonable grounds for the suspicion, these are not abstract and independent elements. They justify a deprivation of liberty which in turn is part of an ongoing process by which the person arrested must be taken before an authorised officer to be dealt with according to law: Law Enforcement Act, s 99(4). In other words, the arrest is a first step in the process by which the person is to be made answerable for the offence, the commission of which the officer suspects. The same underlying purpose is to be found in s 99(3) which limits the circumstances in which an officer may arrest a person "for the purpose of taking proceedings for an offence against the person"; it thus assumes that such a purpose must underlie a valid arrest.
[27] In other words, an arrest will not be valid merely because the officer believes that an offence has been committed, in circumstances where the officer has no intention of charging the person or having the person charged with that offence. If that were not so, the legal requirement that the person arrested be informed of the true grounds of the arrest would be rendered nugatory: see State of New South Wales v Delly [2007] NSWCA 303; 70 NSWLR 125 at [9]-[11] (Ipp JA), adopting the reasoning of Lord Simonds in Christie v Leachinsky [1947] AC 573 at 591-592. As Tobias JA stated at [71], after referring to the provision in force in 1998 empowering an officer to arrest without warrant on the basis of a suspicion with reasonable cause:
'It logically follows that where an arrest which complied with that requirement was effected, the arresting officer was obliged by the common law to inform the arrestee of the nature of the offence which he, the arresting officer, suspects the arrestee to have committed. To arrest a person on the suspicion of that person having committed offence A but to inform that person that the reason for the arrest is offence B, would be a nonsense and contrary to the clear policy which underpins what has been described by Lord Simonds in Christie as a fundamental rule of the common law with respect to the lawful deprivation of a person of his or her liberty (emphasis supplied).'" [29]
The focus of any arrest power must be on the state of mind of the person arresting at the time of the arrest. The case narrative in the Exhibit A refers to another officer's view that the information gathered is sufficient to arrest and charge the person of interest at an earlier time. It is also not clear who made the entries relevant to the level of harassment.
In that context the preceding references to Sergeant Richardson was that she has made "extensive inquiries" in relation to the matter and was "prepared to arrest and interview" the Plaintiff. If that were the purpose of the arrest (and I make no suggestion that it was) then it would not be an arrest for the purpose of taking proceedings for an offence against the person.
Moreover, any arrest power needs to be examined not only by reference to what was in the mind of arresting officer, but also whether the grounds were reasonable at the time.
The Exhibit A entry does not identify how the referenced suspicion was formed, stating:-
"Aaron CHAPMAN has been listed as the suspect to this ongoing matter. How he is identified is not entirely clear, Sgt RICHARDS returns to work Monday 22/11. Possibly Crimestoppers will be able to assist in the interim." [30]
In circumstances where the Plaintiff disputes the lawfulness of the arrest, I would accept his submissions as correct.
I accept the Defendant's submission that was not open to police to impose bail conditions absent a charge. There is, as the Defendant asserts, an illogicality in the Plaintiff's submissions that suggest that even had the police requested his attendance for the purpose of being charged and then being issued with bail conditions, the Plaintiff would still have been detained and falsely imprisoned as he would not have been permitted to leave until such process had been dealt with. [31]
However, the circumstances of arrest fall to be determined on the resolution of disputed facts. Despite the Defendant's submission, there may well be argument as to the purpose of arrest and necessity for it. The delay in taking action may well contraindicate any necessity to arrest without warrant. Even if I were to form the view that the Plaintiff was unlikely to succeed, I cannot be satisfied on the material before me, at this time that the proceedings are vexatious or bear no reasonable prospect of success. [32]
It follows in accordance with the authorities earlier mentioned, the claim for summary dismissal of the proceedings generally cannot succeed.
[6]
Exemplary damages
Although the Defendant did not specifically motion the Court, it proceeded in argument to also seek summary dismissal in respect of that part of the Plaintiff's claim that relates to exemplary damages. [33]
In this respect the Plaintiff seeks exemplary damages based on an assertion that Sergeant Richardson did not read the Plaintiff his rights, a matter which was contradicted by the Custody Management Record which was Exhibit C, the "rights document" dated 6 December 2010, being Exhibit B, and the ERISP interview of the Plaintiff of 6 December 2010, which was Exhibit D on the application. By reference to these documents, the Defendant argues that:-
"[37] … it is open to the Court to accept:
(a) At 12.30am, the Plaintiff was read the Caution and Summary of Part 9 of LEPRA on 6 December 2010, which included the statement: "The police will help you to contact a lawyer of your choice if you want legal advice or to ask that person to come to where you are";
(b) The Plaintiff signed that document confirming his understanding of that information;
(c) The Plaintiff participated in an electronically recorded interview during which he had agreed:
(i) Prior to the interview, he had been informed of the nature of the offence (p.1, Q8)
(ii) Prior to the interview, he had been informed of his rights not to say or do anything (p.1, Q9)
(iii) Prior to the interview, he was read the "Rights document" (p.1, Q10) and that he understood those rights (P.2, Q11)
(iv) That he agreed to being interviewed (p.2, Q18)
(v) He was again informed of his right to remain silent (p.2, Q21 - 22)
(vi) The Plaintiff admitted to many of the criminal acts which related to the ongoing harassment of two people, including in November 2010 (T18 Q180)
[38] These findings are significant as they are in direct conflict with the matters pleaded in the Statement of Claim at:
para 27 no caution given by Sgt Richardson
para 28 the Plaintiff denied the allegations put by Sgt Richards
para 48(a) no caution given by Sgt Richardson
para 48(c) unable to exercise his right to speak to an Australian Legal Practitioner."
Insofar as its claim for exemplary damages was concerned, the Plaintiff asserts that specifically, the failure to caution the Plaintiff, was directly referable to the events occurring up to paragraph [35] of the Statement of Claim - that is, when the Plaintiff was questioned without being cautioned, then introduced to the Custody Manager. The Defendant does not dispute the basis upon which the Plaintiff's attendance was secured at the police station.
The Defendant referred to the decision in Travers v The State of New South Wales where Montgomery DCJ stated:
"[32] During submission, I raised with counsel and received no opposition to the proposition that inviting a person, without disclosing intent to charge, to attend the station would be a normal and safe way of achieving bringing the person into the presence of the police.
…
[57] Senior Constable Barnier's exercise of discretion to arrest the plaintiff at 19:20 on 25 April 2011 is, in my opinion, to be scrutinised in the context of his duty to have regard for the protection of the community from violence and to prevent crime. With a well-founded purpose of peacefully bringing the plaintiff out of the community and into the police station to be charged, he sensibly engaged the plaintiff's willingness to make a statement and invited him to the Grafton Police Station for that purpose. The circumstances immediately proximate in time and place of the arrest are to be considered in the exercise of the scrutiny necessary in the determination of this case." [34]
The course in Travers was not a principle of general application. The Plaintiff's claim for exemplary damages also raises the timing and method of charging in circumstances where the Plaintiff would be unlikely to exercise his right to speak to a lawyer. To the extent that there may be existing authority against the Plaintiff's argument then it remains open to him to argue it should not be followed. An assessment of the likelihood of success is not something to be canvassed at this stage in the absence of any suggestion of binding precedent. Any remaining disputed factual questions (in light of the Plaintiff's concession) are matters for resolution at trial.
It follows that this is not an appropriate case under UCPR 13.4(1) for summary dismissal of the Plaintiff's claim for exemplary damages.
[7]
UCPR 14.28 "Circumstances in which court may strike out pleadings"
[8]
Submissions
In its alternative claim for relief under UCPR 14.28, the Defendant has highlighted the failure to plead the claim for false imprisonment. Although specific paragraphs were highlighted in the motion to be struck out, the effect would be that unless the Statement of Claim was amended, it would no longer disclose a cause of action. The Defendant also sought to strike out the claim for exemplary damages however no additional argument was raised beyond that referred to earlier in these reasons.
The Defendant argues that whilst the Plaintiff does not carry the onus of establishing unlawfulness, the false imprisonment needs to be properly pleaded and to this end must state the basis upon which it is said to have been false so the Defendant knows the case it must meet which also includes the period of time the false imprisonment is said to have occurred. [35]
The Plaintiff draws attention to the fact that, in accordance with the decisions with Darcy (by her tutor Diane Aldridge) v State of New South Wales, [36] upon proof establishing that the Plaintiff had been restrained, it falls to the Defendant to establish legal justification. [37] To this end it argues that lawful justification were matters for the Defendant to plead and the Plaintiff to respond by way of Reply.
[9]
Legal principles
The Plaintiff bears the evidentiary and persuasive burden of establishing that at the relevant times that he was totally restrained or deprived of his liberty. What amounts to total restraint is not mere loss of freedom or a partial obstruction of will. It includes the notion of restraint within some limits defined by the will or power exterior to one's own. [38]
UCPR 14.7 requires that a party's pleading contain a summary of material facts on which it relies. UCPR 14.14 requires that the Plaintiff plead specifically any matter that if not pleaded may take the Defendant by surprise.
UCPR 14.10 is relied upon by the Plaintiff to assert that it does not need to plead a fact is presumed by law to be true or where the burden of disproving the fact lies on the opposite party. The Defendant draws attention to the fact that the rule adds:-
"… except so far as may be necessary to meet a specific denial of that fact by another party's pleading." [39]
The words "to meet a specific denial" in the proviso to UCPR 14.10 refer to a response to a pleading, not an initial pleading. I am doubtful however that the rule is applicable in any event. In a case involving allegations of false imprisonment there is no fact presumed by law to be true. Rather, once actual deprivation or restraint of liberty is established, the cause of action is made out unless the Defendant establishes lawfulness. The Defendant is not required to disprove any presumption. UCPR 14.10(b) is couched in the negative and is in this sense different from r 16.03(2) of the Federal Court Rules 2011 (Cth) which provides:
"Pleading of facts
(2) However, a party need not plead a fact if the burden of proving the fact does not lie on that party." [40]
Nevertheless under the law of this State, lawful authority is a matter for the Defendant to plead and prove.
In Darcy (by her tutor Diane Aldridge) v State of New South Wales, Whealy JA stated:-
"[143] The elements of the modern tort of false imprisonment require proof by the plaintiff of a restraint imposed by the defendant which amounts to imprisonment. Upon the proof of such imprisonment, the defendant, to escape liability, needs to establish legal justification. In Troubridge v Hardy (1955) 94 CLR 147 at 152 these principles were explained by Fullager J in the following terms:
'The [appellant] did not sue, as he might also have done, for malicious prosecution, but for trespass to the person and false imprisonment. It was unnecessary for him to allege in his statement of claim, as in fact he did, that the [respondent] was "acting in his office as a member of the police force". The mere interference with the [appellant's] person and liberty constituted prima facie a grave infringement of the most elementary and important of all common law rights. It was for the [respondent] to justify, if he could, by reference to his office or otherwise.'
[144] The restraint imposed must be a complete deprivation of, or a restraint upon the plaintiff's liberty and it must be actual rather than potential ( R v Bournewood Community and Mental Health NHS Trust, ex parte L (Secretary of State for Health and others intervening) [1998] UKHL 24; 1 AC 458; [1998] 3 All ER 289). The restraint must be upon a person's liberty to come and go and must be against his or her will (Second Restatement of Torts (1965) United States; Gavin McFadzean v Construction, Forestry, Mining and Energy Union (CFMEU) [2007] VSCA 289 at [37]).
[145] Modern authority confirms that the factual essence of the cause of action is the placing of a "total restraint" on the plaintiff's movement. That restraint, however, need bear no similarity to what one would normally describe as imprisonment. It has been said that the law has moved on from any such limitation: State of South Australia v Lampard-Trevorrow [2010] SASC 56; (2010) 106 SASR 331 at [282]." [41]
In Zaravinos v State of New South Wales, [42] Bryson JA stated:
"[12] … The Ordinary Statement of Claim was required by Pt.5 r.6A of the District Court Rules 1973 to contain a statement of each cause of action in respect of which the action was brought, and the plaintiff was also required by Pt.9 r.9 to plead specifically any matter which might take the defendants by surprise. The pleadings distinctly and unmistakably show that one claim or count was based on false arrest and imprisonment. However the burden of proving any facts or circumstances which show that the arrests and detention were lawful lay on the defendants, and in compliance with Pt.9 r.9 the defendants should have alleged in their Notice of Grounds of Defence any facts which would show lawful authority to arrest and detain Mr Zaravinos, and to avoid surprise they should have indicated the legal basis on which it was said that the arrests and detention were justified."
The Defendant in reply cites a number of principles of general application related to pleadings. [43] I do not see these as derogating from the requirements referred to above.
I am mindful of the fact that in Bullen & Leake & Jacob's, Precedents of Pleadings, the learned authors state:-
"Where a claimant makes a claim for false imprisonment, the burden of proof is on the defendant to justify that imprisonment. For example, the burden of proof is on the defendant to justify the claimant's arrest or subsequent detention as being lawful. However, CPR Pt 16.4(1)(a) requires a claimant to include in his Particulars of Claim a concise statement of facts on which he relies The commentary in Vol.1 of the White Book 2015 edition at pp.546-549 is useful. If a claimant wishes to assert, for example, that there has been a breach of s.28, 37 or 40 of PACE, it is advisable for the claimant to include details of those matters in his claim. He may protect himself from reversing the burden of proof by asserting specifically that those assertions are without prejudice to the burden on the defendant of justifying the imprisonment." [44]
The authors do not state that such pleading is required but merely advisable in the circumstances described. [45] There may well be merit in taking a broader approach however it is not a prerequisite. Further, the draft defences in the publication still indicate that it is for the Defendant to justify the circumstances of the arrest and imprisonment. [46]
In an earlier edition of the same publication, the authors concede that that the Plaintiff need not allege in the Statement of Claim, that the arrest and imprisonment was unlawful. [47]
[10]
Analysis
The pleading in this instance identifies what it terms a first trespass and second or continuing trespass amounting to false imprisonment.
In respect of the first, it refers to the Plaintiff attending Gosford Police and being told by Sergeant Richards that she would see the Plaintiff in a room. The Plaintiff entered the room and the door was closed with no one else present. It is then asserted the Plaintiff was falsely imprisoned as Sergeant Richards had already determined that she would not allow the Plaintiff to leave. No particulars under UCPR 15.1 are provided as to Sergeant Richards' determination however the Defendant raises no issue in this regard. At this point in the pleading the Plaintiff was not advised that he was under arrest but it was asserted that the Plaintiff was falsely imprisoned. Leading to [25] of the Statement of Claim, the facts the Plaintiff relies upon to make out his claim are that he had not been told that he was under arrest at the time, that Sergeant Richards had determined that she would not allow him to leave the police station without being charged for a criminal offence and that he was in a room with Sergeant Richards with the door closed.
In relation to the second claim of false imprisonment the Plaintiff, as indicated earlier during submissions, indicated that he challenged his arrest as wrongful. It is implicit form the allegation in [33] of the Statement of Claim that the Plaintiff's "arrest constituted a false imprisonment". However this was not a matter he was required to plead as it was for the Defendant to justify the arrest along with the consequent false imprisonment.
In its submissions in reply, [48] the Defendant raises that in pleading false imprisonment, there is a need for the Plaintiff to specify the period that the alleged false imprisonments occurred so as to identify the damage he is claiming. [49] The Statement of Claim does this at [44] by reference to a time commencing at 12.05 am and ending when the Plaintiff was released on 6 December 2010 from Gosford Police Station. Exhibit B reveals that the Plaintiff was admitted to bail at 3.46 am that day. It is not clear however whether this is the duration the Plaintiff is alleging as the period of the imprisonment. In the circumstances the Plaintiff should provide further particularisation to comply with UCPR 15.9.
In so far as the claim for exemplary damages are concerned, the pleading should be clarified to indicate the time during which it is alleged no caution was given in 48 of the Statement of Claim.
The aforesaid matters are readily capable of rectification [50] and would not engage the discretion to make the order the Defendant seeks. [51]
In this instance it is also relevant that the Consent Order timetable including provision of further and better particulars made on 1 February 2017 was not actioned.
[11]
ORDERS
For these reasons, I order:
1. The motion filed on 6 April 2017 is dismissed;
2. I will hear from the parties as to the provision of a fresh timetable in accordance with these reasons
3. I will hear from the parties as to costs
[12]
Endnotes
Statement of Claim filed 5 December 2016 at [2] - [7]
Statement of Claim filed 5 December 2016 at [8] - [9]
Statement of Claim filed 5 December 2016 at [10] - [16]
Statement of Claim filed 5 December 2016 at [17] - [18]
Statement of Claim filed 5 December 2016 at [20] - [33]
Statement of Claim filed 5 December 2016 at [46] - [48]
Defendant's Written Submissions dated 6 June 2017 at [15]
Defendant's Written Submissions dated 6 June 2017 at [16]
Hereinafter referred to as the "2002 Act"
Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) s 99(1)
Defendant's Written Submissions dated 6 June 2017 at [27]
Defendant's Written Submissions dated 6 June 2017 at [30]
Defendant's Written Submissions dated 6 June 2017 at [33]
[2016] NSWDC 297
[2016] NSWDC 297 at [62] (Montgomery DCJ)
Plaintiff's Written Submissions dated 9 June 2017 at [10]
Plaintiff's Written Submissions dated 9 June 2017 at [14]
Plaintiff's Written Submissions dated 9 June 2017 at [15]
Plaintiff's Written Submissions dated 9 June 2017 at [15]
Plaintiff's Written Submissions dated 9 June 2017 at [18]
Plaintiff's Written Submissions dated 9 June 2017 at [19] - [21] and hereinafter referred to as the "1978 Act"
[2012] NSWCA 337
[2012] NSWCA 337 at [12] (Basten JA with whom McColl and Hoeben JA agreed)
[2012] NSWCA 337 at [26] - [27] (Basten JA with whom McColl and Hoeben JJA agreed)
Exhibit A, New South Wales Police Force COPS entry for C 42003028 at p 4
Defendant's Written Submissions in Reply dated 12 June 2017 at [4]
These were the two grounds raised in [4] and [5] of the Defendant's Written Submissions dated 6 June 2017
Defendant's Written Submissions dated 6 June 2017 at [36]
[2016] NSWDC 297 at [32] and [57] (Montgomery DCJ)
Defendant's Written Submissions in Reply dated 12 June 2017 at [12]
[2011] NSWCA 413
Plaintiff's Written Submissions dated 9 June 2017 at [5] - [9]
Symes v Mahon [1922] SASR 447 at 449
UCPR 14.10
See as an example of its application: Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2017] FCAFC 50 at [69] (Greenwood, Flick and Rangiah JJ)
[2011] NSWCA 413 at [143] - [145] (Whealy JA with whom Allsop P and Beazley JA agreed)
(2004) 151 A Crim R 24; [2004] NSWCA 320 at [12] (Bryson JA with Santow JA and Adams J agreeing)
Defendant's Written Submissions in Reply dated 12 June 2017 at [6] - [8]
E Bullen, S M Leake and I H Jacob, Precedents of Pleadings (Sweet & Maxwell, 18th ed, 2016) 97. These comments first appeared in the 14th edition of the publication
Police and Criminal Evidence Act 1984 (UK) ss 27, 37 and 40
E Bullen, S M Leake and I H Jacob, Precedents of Pleadings (Sweet & Maxwell, 18th ed, 2016) 118 - 123
E Bullen, S M Leake and I H Jacob, Precedents of Pleadings (Sweet & Maxwell, 13th ed, 1990) 386
Defendant's Written Submissions in Reply dated 12 June 2017 at [15]
State of New South Wales v Radford [2010] NSWCA 276 at [61] (Sackville AJA with whom Beazley and MacFarlan JJA agreed)
Civil Procedure Act 2005 (NSW) s 64(1) and UCPR 19.1(1)
Bott v Carter [2012] NSWCA 89 at [14] (Basten JA)
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Decision last updated: 14 July 2017