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[2009] NSWSC 396
Supreme Court of NSW
2008-12-11
Smart AJ
Original judgment source is linked above.
The Applicant's interest in freedom was not safeguarded from the unjustifiable litigation, involving as it did, his public standing of the Applicant in the community.
The prosecution caused a loss of the Applicant's liberty with damaging his reputation.
With the tort of malicious prosecution the Applicant alleges that:
The arresting Police officers had brought about the proceedings on 17.3.2008 when they arrested the Applicant and then instigated the proceedings by serving on the Applicant the Court Attendance Notice [CAN];
The Magistrate was wrong in having given the Police the benefit of the doubt and placing the material before her "at its highest, and I really mean at it highest, that there is a prima facie case" [T8.12]. It is not for the magistrate to place material at its highest for a party's benefit.
The arresting police officers under the direction of the person(s) who 'intervened' either on behalf of the Attorney General in and for the State of NSW or the NSW Police Force, arrested the Applicant in circumstances that the 'Police had already spoken with Legal Advice in relation to the charges, to which they had been advised not to pursue charges for the minor breach, especially after not being able to obtain a signed statement from the witness, and the fact that there was no harassment or intimidation towards the victim'.
In circumstances that the Applicant had explained to the Police the nature of the family court documents which needed to be served in person, and had previously been refused service by the victim's legal representative.
The arresting Police officers' conduct was without reasonable or probable cause in that Legal Advice had advised not to prosecute the Applicant.
The arresting Police officers failed to find out who a legal representative could be - be it an agent without legal qualifications.
The arresting Police officers also actuated by malice - the pursued the prosecution for a collateral purpose following the orders of the person(s) who 'intervened'.
Police informed the Applicant about the alleged breach and gave him a stern warning in relation to having a person with an AVO served. The Applicant immediately filed an application for substituted service in the Federal Magistrate's Court.
The proceedings terminated in the Applicant's favour on 8.5.2008 …" 57 These comments need to be made:
(a) The Magistrate did not give the police the benefit of the doubt and was not in error when considering whether there was a prima facie case in taking the evidence of the prosecution at its highest.
(b) a favourable determination by the Magistrate does not mean that the prosecution was malicious. An analysis has to be undertaken of the evidence and the material available to the prosecution and the material reasonably thought to be available to the prosecution. Allowance has to be made for contingencies, for example, a potential witness becoming ill or being too ill to travel or simply not turning up although notified of the hearing date or being reluctant to give useful evidence. Allowance also has to be made for differing legal views of the facts that are reasonably arguable.
(c) The prosecution contended: (a) "legal representative" where used in the additional earlier quoted AVO order meant a legal practitioner acting on behalf of the defendant
(b) If the phrase "legal representative" should be given a broader meaning, the 76 year-old lady could not be classed as the "defendant's legal representative". She was simply a friend or acquaintance of the applicant who had been asked to hand the family law papers to his close relative.
(c) The 76 year-old lady could be described as the applicant's agent and in having her approaching or contacting the protected person he was approaching or contacting the protected person by his agent. The order forbad approaches or contact by the applicant "by any means whatsoever". 58 Each of these contentions was reasonably arguable and could form the basis of a suspicion on reasonable grounds under s 99(2). The legal advice given to the police about 3 or 4 March 2008 was based on how it was considered the discretion to prosecute should be exercised. When there is a reasonably arguable prosecution case, the prosecution does not become malicious because the prosecutor disagrees with the advice given as to how the prosecutorial discretion should be exercised. 59 The Magistrate who dismissed the charge attached importance to the word "knowingly" in s 14(1) of the Crimes (Domestic and Personal Violence) Act 2007 which provides: "A person who knowingly contravenes a prohibition or restriction specified in an apprehended violence order made against the person is guilty of an offence. " 60 The maximum penalty is imprisonment for two years or 50 penalty units, or both. 61 I have noted s 14(8) of the Act. 62 The Magistrate appears to have thought that there was very little in the charge and that at most there was a minor breach. She was not satisfied that the applicant knowingly committed a breach. Both parties made submissions to this Court as to the meaning of the phrase "defendant's legal representative". It is not necessary to resolve that debate or whether the defendant knowingly contravened the restriction when he asked a friend to hand the family law papers to his close relative. It suffices that the prosecution case was reasonably arguable on both points. 63 While I do not regard this cause of action as an abuse of process, I am not satisfied that the applicant has established a prima facie ground for the cause of action of malicious prosecution. I would not give the applicant leave to institute proceedings including this cause of action. 64 I should comment upon some further submissions of counsel for the Attorney General:
a. Counsel contended that the Court should dismiss the plaintiff's application for leave to institute proceedings if it was not satisfied that the applicant's Proposed Draft Amended Statement of Claim was in an acceptable form. I have granted leave to institute proceedings in respect of some alleged causes of action but not others. The applicant should have leave to formulate an acceptable Amended Statement of Claim in accordance with these reasons. If he does not do so he runs the substantial risk of having his application for leave to institute proceedings dismissed. The applicant has had numerous attempts at drafting a Statement of Claim and has sought to raise causes of action that have no prospect of success. His core allegations are reasonably discernible and centre upon the lawfulness of his arrest. The applicant should be afforded an opportunity to draft a Statement of Claim in accordance with the leave given in this judgment.
b. It was submitted that considerable weight should be attached to the previous judgments in this Court reflecting adversely upon the applicant. Reliance was placed on Graham v Sutton, Carden & Co 1897 2 Ch 367. That was a different case. Proceedings were stayed because the plaintiff vexatiously conducted the proceedings which he had instituted and had not paid the costs ordered of certain interlocutory proceedings. Lopes LJ referred to an earlier judgment of Rigby LJ that the court could take judicial notice of an earlier judgment (apparently in those proceedings). Chitty LJ in Graham referred at p 371 to an earlier judgment in the same proceedings showing that the plaintiff had conducted the particular action vexatiously. The effect of this submission was that the evidence of the applicant should not be accepted. As to the causes of action of unlawful arrest, wrongful imprisonment on the first basis (but not on the second basis, i.e., that he was held for longer than the permitted investigation period) and the cause of action of assault related to the initial searching, arrest and transporting to Waverley Police Station, much of the evidence on the permissible cause of action does not seem to be in dispute and the applicant relies, to a significant extent, on what appears in the police records. The second basis of the claim of assault, based on what the custody sergeant allegedly stated, is in a different category. I do not think that I should determine in advance, without hearing from the custody sergeant that the applicant's case is not to be accepted on the point. The State relied on Hunter v Commissioner of Police [2003] WASC 10; BC 2003 00042. That involved the construction of s 6(5) of the Vexatious Proceedings Restriction Act 2002 (WA). Section 6(5) requires the Court to dismiss the application for leave to institute proceedings if it considers that the affidavit required to support the application does not disclose what is required by s 6(3), the proceedings are vexatious or there is no prima facie ground for the proceedings. At [18] Pullin J said (omitting citations): "In the present context the phrase 'prima facie grounds' means … that there is a legal basis for the claim and that there is some evidence referred to in the affidavit in support of the application which, if accepted, would be capable of sustaining the proceedings." I do not disagree with Pullin J. 65 Counsel for the Attorney General drew my attention to Williams v Minister, Aboriginal Land Rights Act (1994) 35 NSWLR 497. At 512 D - G it was accepted by Kirby P that the plaintiff in an action for false imprisonment did not have to prove that he was falsely imprisoned. He had to establish only that he was imprisoned. If he did so, it was for the defendant to prove that he did not falsely imprison, i.e., that the act of imprisonment was legally justified. Priestley JA agreed with Kirby P. The latter adopted a statement made by Crockett J, with whom O'Bryan and Gray JJ concurred, in Carnegie v Victoria (14 September 1989, unreported, Full Court of the Supreme Court of Victoria). 66 Counsel also drew my attention to Phillip Morris Ltd v Attorney General for State of Victoria [2006] VSCA 21; (2006) 14 VR 538. At [12] Maxwell P pointed out that the power to grant leave to a vexatious litigant is discretionary. Under s 84 of the Supreme Court Act (NSW) the power is unavailable unless the court is satisfied that the proceedings are not an abuse of process and that there is a prima facie ground for the proceedings. The applicant's tendency in his Statement of Claim and his evidence to stray into surplusage and irrelevancy can be controlled as it arises. Ormiston JA at [118] held that the Court should be free to halt in limine a claim dependent on a patently false fact, notwithstanding that it will be necessary to reach that factual conclusion before characterising the claim as an abuse of process. Eames JA at [153] agreed. Section 84 is cast in different terms from the Victorian legislation and the plaintiff has, as mentioned, to satisfy the requirements of s 84 of the Supreme Court Act. The Victorian decision is an illustration of the practice of the Court to avoid abuses of process. 67 In reliance upon the submission that the Court cannot be satisfied that the proposed proceedings do not amount to an abuse of process, counsel for the Attorney General relied upon the applicant's assertion that he was taken to the police station and held for the ulterior purpose of obtaining his "mugshot" and his finger-prints. That theory of the applicant is improbable. It was not in dispute that the assistant arresting officer asked the applicant if she could take his photo and finger-prints. The applicant contends that the custody sergeant later said that he wanted to take the same course. Assuming that the applicant has drawn the wrong or an improbable inference that does not make the causes of action, as limited by this judgment, an abuse of process. 68 The applicant has a tendency to range over a wide field in making his allegations. A vexatious litigant should not be denied access to the Courts as to legitimate causes of action and in respect of which there is prima facie ground for the proceedings. It is equally important that defendants do not have to go to the trouble and expense of meeting claims that are vexatious and in respect of which the Court is not satisfied that there is prima facie ground for the proceedings proposed. 69 I would not be prepared to grant leave to proceed on the basis of the proposed Draft Amended Statement of Claim (Ex 5). It is embarrassing and defective in form, does not comply with the rules of pleading, contains much irrelevant material and embraces or purports to embrace causes of action in respect of which no prima facie ground exists. The pleading of his particulars of injuries and his claims for damages requires revision. The applicant should appreciate that he should plead the material facts of each of the causes of action which I have held to be permissible and supply the particulars required under the Rules of Court. Argument is not allowed in a Statement of Claim. Paragraphs 39, 40 and 41 should be omitted from any further draft of an amended statement of claim. Those are not the only provisions which should be omitted. The draft needs to be radically re-cast. 70 Allowing for the applicant being unrepresented, I direct that he serve on the defendant within two months his proposed Amended Statement of Claim (with a copy to my Associate). I will list the matter for mention at 9.30 am on 24 July 2009 when a date will be fixed for any further argument, if necessary.
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Attorney General for the State of New South Wales
Bar-Mordecai
CITATION : Attorney General for the State of New South Wales v Bar-Mordecai [2009] NSWSC 396
Graham v Sutton, Carden & Co 1897 2 Ch 367 CASES CITED : Hunter v Commissioner of Police [2003] WASC 10; BC 2003 00042 Phillip Morris Ltd v Attorney General for State of Victoria [2006] VSCA 21; (2006) 14 VR 538 Williams v Minister, Aboriginal Land Rights Act (1994) 35 NSWLR 497
(c) It was not necessary and the arresting Police officers did not have reasonable grounds to suspect it was necessary to arrest the applicant to achieve one or more of the purposes in s 99(3) of the Law Enforcement (Powers and Responsibilities) Act 2002." 27 Section 99(1) of the last mentioned Act empowers a police officer, without warrant, to arrest a person in the act of committing an offence under any Act or statutory instrument or who has just committed any such offence or where the person has committed a serious indictable offence for which he has not been tried. Subsections 99(2) and (3) provide: "(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. (3) A police officer must not arrest a person for the purpose of taking proceedings for an offence against the person unless the police officer suspects on reasonable grounds that it is necessary to arrest the person to achieve one or more of the following purposes: (a) to ensure the appearance of the person before a court in respect of the offence, (b) to prevent a repetition or continuation of the offence or the commission of another offence, (c) to prevent the concealment, loss or destruction of evidence relating to the offence, (d) to prevent harassment of, or interference with, a person who may be required to give evidence in proceedings in respect of the offence, (e) to prevent the fabrication of evidence in respect of the offence, (f) to preserve the safety or welfare of the person." 28 In the second reading speech (Hansard, Legislative Assembly, 17 September 2002), the Attorney General said: "Part 8 of the Bill substantially re-enacts arrest provisions of the Crimes Act 1900 and codifies the common law. The provisions of Pt 8 reflect that arrest is a measure that is to be exercised only when necessary. An arrest should only be used as a last resort as it is the strongest measure that may be taken to secure an accused person's attendance at court. Clause 99, for example, clarifies that a police officer should not make an arrest unless it achieved the specified purposes, such as preventing the continuance of the offence …" 29 The authors of Criminal Practice and Procedure NSW write at p 626,002: "Before the enactment of s 99, it was said that the power of arrest for an offence should not be exercised unless it is necessary to ensure the accused's attendance before the court and only where a summons would not be appropriate: Fleet v District Court of NSW [1999] NSWCA 363; BC9906539; (1999) 6 Crim LN 82 [1061]; Director of Public Prosecutions v Carr (2002) 127 A Crim R 151; [2002] NSWSC 194; BC200201026; (2002) 9 Crim LN [1401]. See also Wilson v DPP [2002] NSWSC 935; BC200206024. Section 99(3) now confines the use of arrest for the purposes of taking proceedings for an offence to certain defined circumstances." 30 I respectfully agree with the views expressed. I take the view that s 99(3) restricts the circumstances in which the power under s 99(2) may be exercised. 31 The decision in the present case to proceed by way of arrest rather than summons was surprising. Counsel for the Attorney General relied on the nature of the offence alleged, namely a failure to obey a previous order by the Local Court. That order was a protective one. Counsel submitted that the very character of the offence would have provided necessarily reasonable grounds for the arresting officer, or the officer authorising the arrest, to suspect that arrest and the obtaining of a suitable undertaking on bail were reasonably necessary to prevent either a repetition of the offence or the possible harassment of the complainant and therefore ss 99(3)(b) or 99(3)(d), or both, were objectively satisfied by reference to the nature of the offence at the time the decision to arrest was made. 32 I disagree that the very character of the offence would have provided necessarily reasonable grounds as suggested. The use of the word "necessarily" puts the matter at too high a level. That submission by the Attorney General loses a lot of its force when it is recalled that some 13 days (4 - 17 March 2008) elapsed between the offence alleged and the arrest and the applicant had voluntarily attended Rose Bay Police Station on 5 March 2008, and had received a stern warning. Legal advice had been received not to proceed. There was no suggestion of any "repeat offence" between 4 and 17 March 2008. The State will be able to advance its contentions at a trial of the action. The plaintiff has substantial contentions to the contrary. 33 Additionally, as the Magistrate pointed out, there was no evidence that the 76 year-old lady serving the Family Law documents intimidated the person in need of protection or offered any threat. That lady simply passed over the papers and said, "These are from [the applicant]". Mr Bar-Mordecai was nowhere to be seen. 34 On the facts as presently known, and known on 17 March 2008, I entertain doubt whether the State's contentions are correct. The plaintiff's contentions to the contrary are, at the least, reasonably arguable. 35 The manner in which the applicant has pleaded his cause of action is defective. Sub-paragraph (a) of paragraph 25 is unnecessary and inapplicable. Sub-paragraph (b) is not sustainable. There were reasonable grounds to suspect that the applicant had committed an offence (contravening a restriction in the AVO). The prosecution case was reasonably arguable. The allegation in sub-paragraph (c) of paragraph 25 is the critical one. The reasonably arguable applicant's case is that the power in s 99(2) of the Act was not exercisable because the police officer did not have reasonable grounds to suspect that it was necessary to arrest the applicant to achieve any one or more of the purposes specified in s 99(3)(a) - (f). I regard many of the allegations contained in the Statement of Claim as unnecessary and embarrassing and liable to be struck out. 36 In my opinion the applicant has shown that an action based upon unlawful arrest is not an abuse of process and that there is a prima facie ground for the action. 37 The applicant complains that he was wrongfully imprisoned. It is his case that shortly after his arrest he was searched, placed in a caged police truck and taken to Waverley Police Station where he was charged. He complains that he was kept in custody there for some hours. There is a dispute as to the precise time he was released but it appears from the police records that he was kept at the Waverley Police Station from about 8.50 am to about 12.35 pm. 38 It was at least reasonably arguable that the applicant should not have been arrested in the circumstances including that none of the provisions of s 99(3) applied. It was at least reasonably arguable that the plaintiff was unlawfully imprisoned. There may be scope for the State to argue that, after the applicant was formally charged with an offence and until he was granted bail and released, the imprisonment was lawful. That is a matter for the trial. 39 In my opinion the applicant has shown than an action based on false or wrongful imprisonment is not an abuse of process and that there is a prima facie ground for the action. 40 There was a further case made by the applicant on the ground of unlawful imprisonment. He contends that he was detained in excess of the four-hour investigation period. The applicant arrived at Waverley Police Station about 8.50 am (T 42). The applicant said that he was not released shortly after he signed his bail undertaking. The applicant said "I was released about 10 to 1 or 5 to 1" (T44). The bail undertaking was signed by Mr Bar-Mordecai on 17 March 2008 and states the time as 12.30 pm. The custody management record shows his time of release at 12.35 pm. Mr Bar-Mordecai regarded this as incorrect. Irrespective of whether this was so, it appears that he was initially reluctant to sign the Bail undertaking and that an officer from Legal Aid attended at the police station and advised Mr Bar-Mordecai to sign it. This would have taken some time which is not to be taken into account. Also not included in determining how much of the investigation period has elapsed is "any time that is reasonably required to carry out charging procedures". I am not satisfied that when the allowances specified in s 117(1) of the Act are made, as they should be, the applicant was detained for longer than the investigation period of four hours. The applicant should not be given leave to pursue his alternate or further case of unlawful imprisonment.
[2006] VSCA 21
(2006) 14 VR 538
(1994) 35 NSWLR 497