(ii) one of several defendants cannot generally succeed on an application for summary dismissal because even after the plaintiff's case is closed, evidence may be introduced by one of the other defendants which inculpates the defendant who has made the application for summary judgment. This was recognised in Menzies (supra).
27 Mr Horsley drew attention to decisions in which Wickstead has been applied: see Bhattacharya v State of New South Wales [2002] NSWSC 361 and Alstom Australia Limited v NAP Acoustics Pty Limited [2004] NSWSC 217.
28 In Breheny v Cairncross [2002] NSWCA 69 the Court of Appeal applied Wickstead. In the course of his judgment, Meagher JA said of that decision:
"That is an authority supported by ample earlier authority that in common law proceedings one of a number of defendants is not entitled to summary dismissal before trial because of evidentiary deficiencies in the plaintiff's case. It is not until after the main defendant has concluded its case that one can make a sensible judgment as to whether there is or is not a case against other defendants."
29 Breheny was a case in which the Court of Appeal determined that there had been error at first instance in acceding to an application for summary dismissal. The proceedings were in the nature of a medical negligence action and the successful applicants at first instance were two doctors who were sued. The third defendant was a hospital in the interests of which it was possible that evidence would be introduced against one or other or both of the doctors. Breheny was a very clear example for the recognition of the Menzies principle and the application of Wickstead.
30 In his judgment in Breheny, Hodgson JA recognised that there may be cases in which it may be possible to say before hearing that it is appropriate to dismiss a particular defendant. His Honour, after agreeing with the reasons of Meagher JA, went on to say:
"However, I would say that there may be cases where, following compliance with directions for particulars and service of evidence, it may be possible to say, before a hearing, that the case of one defendant will certainly not implicate another defendant; and thus there may be circumstances in which one defendant may be dismissed from a case before the actual hearing. However, it is quite plain that that situation has not been arrived at in this case."
31 Mr Horsley next submitted that it is apparent from the evidence that emerges from Mr Lulan's affidavit that the first plaintiff was involved with the police in investigating the plaintiffs. A task force was appointed to assist the first plaintiff and although the police in the task force were under the control and direction of the Commissioner of Police: s 27A(2) of the New South Wales Crime Commission Act 1985, the Management Committee of the first defendant was empowered to give directions and to furnish guidelines both to the first defendant and to the Commissioner of Police for the purpose of coordinating the investigation. The search warrants were obtained under s 11 of the New South Wales Crime Commission Act, and pursuant to s 11(3)(c) the property seized was required to be delivered to the first defendant. Relevant operational orders identified in Mr Lulan's affidavit identified the solicitor for the first defendant, Mr Giorgiutti, as having a role in "command" of the operation. The "mission" in Operation Norfolk was described as including the arrest and interview of suspects and the execution of search warrants.
32 Mr Horsley submitted that the evidence indicated an involvement of the first defendant in the events leading up to the issue of the warrants such as supported the contention that is sought to be pleaded that the first defendant "wrongfully directed and procured" the execution of the search warrants and the further contention that the first defendant "wrongfully directed and procured" the arrest of the first plaintiff.
33 The principles which found expression in Wickstead are well settled. However, in responding to Mr Horsley, Mr Temby submitted that the present case is in an exceptional category. It is incontrovertible that the three search warrants were applied for by the solicitor for the first defendant but that it was a justice who issued them and it was a police officer or police officers who executed the search warrants. Indeed, the plaintiffs have pleaded in both the original statement of claim and the proposed amended statement of claim that it was the second and third defendants, each of whom were police officers, who executed the search warrants. Similarly, with the arrest of the first plaintiff, the authority for that arrest is to be found in Exhibit B, being the warrant issued by the justice, and, again, it is the plaintiff's case, as pleaded, that it was the second and third defendants, police officers, who carried out the arrest. It follows that any possible exposure to liability for the seizure and the arrest fell upon the police officers involved or the fifth defendant.
34 How then can an action be maintained against the first defendant based on the execution of the various warrants?
35 Mr Horsley submitted that the tort of procuring the commission of a tort, although well established in principle, is ill defined in practice. He cited a passage in Atiyah, Vicarious Liability in the Law of Torts concerning cases involving the issue of a writ of fi.fa. The passage cited is preceded by the following paragraph at 298:
"In some cases a person may be held liable for the commission of a tort where it would be difficult to say that he has authorised or assisted its commission, and where liability rests on a causal basis. In these cases the defendant may be said to have caused or procured the commission of the tort."
36 The author went on to state, in the passage cited by Mr Horsley in his submissions:
"The cases which best illustrate this principle are those in which a person issuing a writ of fi. fa . has been sued for the seizure of the wrong person's goods by the sheriff. A long line of cases holds that the person issuing the writ is liable not merely if he actually directs the sheriff to seize particular goods which turn out to belong to the wrong person, but also if he or his solicitor has given wrong or misleading information to the sheriff which has resulted in the sheriff seizing the wrong goods. In Rowles v Senior this liability was firmly rested on causal principles, Wightman J, saying:
'The only question here is whether the attorney caused the plaintiff's goods to be seized.'"
37 Mr Horsley submitted that the reasoning would apply to a person in the position of the first defendant which made application for the issue of the relevant warrants.
38 However, as Mr Temby submitted in his response, the passage from Atiyah cited is of no direct relevance here because no claim is being pursued against the person who issued the warrants. Mr Temby drew attention to a second passage in Atiyah where the author addressed the situation where a court is moved on the application of a defendant to issue process against a party and the court acts outside its jurisdiction so that the process is void. Referring to that situation, the author wrote (at 300):
"In such circumstances the process is issued by the court on its own responsibility, and the person moving the court cannot be treated as procuring the ultimate result. In Cooper v Harding where the defendants had pressed a Bankruptcy Commissioner to issue a warrant for the plaintiff's arrest (and the warrant was invalid) the defendant was held not liable, Lord Denman CJ, saying:
'The ordering of a warrant by the Commissioner was a judicial act done on certain grounds… There was a judicial operation of his mind on the question before him… We often express ourselves, though perhaps we ought not, as granting a rule nisi in deference to the urgency of counsel. A Judge, by using such language, cannot divest himself of responsibility or of protection. And his act is a protection to those who have pressed for it: however strong may be the language they have used to obtain it, they are not liable for it as trespassers.'"
39 Mr Horsley cited Myer Stores Limited v Soo (1991) 2 VR 597 as authority for the proposition that where an informant misinforms police leading to a person's arrest, the informant may be liable for the wrongful imprisonment that follows even if the information was given in good faith. However, in Soo the court was dealing with a case in which police officers acted to detain the plaintiff on false information given by an employee of Myer and kept him in Myer's security office whilst they interviewed him. The detention did not follow the issue of a warrant for the arrest of the plaintiff.
40 In the course of his judgment, McDonald J said (at 629):
"For a person to be liable at law for false imprisonment that imprisonment must be the act of that person or the act of his agent or someone for whose act he is liable. The notion of procuring in the sense referred to, although relevant to and applicable to the tort of malicious prosecution, is not a relevant consideration to the tort of false imprisonment."
41 His Honour proceeded to cite this passage from Fleming, Law of Torts, 7th ed. in which false imprisonment and malicious prosecution were distinguished:
"Fleming, Law of Torts, 7th ed., distinguishing false imprisonment from malicious prosecution, at p. 29 writes: 'False imprisonment arising from an improper arrest of a suspect bears a resemblance to the tort of malicious prosecution, which consists in maliciously and without reasonable and probable cause instituting a groundless criminal prosecution. The distinction between them lies in whether the restraint on the plaintiffs liberty is directly imposed by the defendant himself, acting either personally or by his agent, or whether there is interposed the exercise of an independent discretion. A person who brings about an arrest by merely setting in motion the formal process of law, or by making a complaint before a justice of the peace or applying for a warrant, is not liable for false imprisonment, because courts of justice are not agents of the prosecutor or their acts are not imputable to him. He is liable, if at all, only for the misuse of legal process by procuring an arrest for an improper purpose for which the appropriate remedy is an action for malicious prosecution.'"
42 I do not consider that in this case it would be open to a court to conclude that the first defendant was liable to the first plaintiff by procuring the commission of a tort following the issue of the warrants by the justice.
43 I am persuaded by Mr Temby's submissions that this case is an exception to Wickstead, which is enlivened where one of a number of defendants may give evidence that will incriminate the applicant for summary judgment. In such a case, summary judgment will be refused. However, this is not such a case. There exists no possibility that the second, third, fourth or fifth defendants will incriminate the first defendant in relation to the execution of the warrants.
44 No doubt the solicitor for the first defendant applied for the search warrants in the expectation that the police involved in "Operation Norfolk" would execute these warrants. It may be assumed that the first defendant anticipated and approved of the arrest of the first plaintiff. It may be that evidence to that effect could be elicited at a hearing. However, each of the warrants was issued by a justice and each of the warrants was executed by a police officer who, according to the statute under which the operation was to be conducted, was to act "under the control and direction of the Commissioner of Police": s 27A(2) of the New South Wales Crime Commission Act. Not only is Mr Lulan's unchallenged evidence that the warrants were executed by police officers, but the plaintiffs have pleaded in both the statement of claim and the proposed amended pleading that the warrants were executed by the second and third defendants. Moreover, it is to be noted that in the defence filed by the second and fifth defendants, it is pleaded that the stock and records seized were seized with lawful authority pursuant to the terms of the search warrants which were issued and that the second defendant arrested the first plaintiff pursuant to an arrest warrant and with lawful authority. The second and fifth defendants have pleaded the seizure of property and the arrest and detention of the first plaintiff was lawful, and they deny that the first defendant wrongfully directed or procured the second and third defendants to obtain the search warrants or to arrest and detain the first plaintiff. In his pleading, the fourth defendant has stated he has no knowledge of the issues central to the plaintiffs' claim in tort.
45 Section 11 of the New South Wales Crime Commission Act required the justice who issued the search warrants to be satisfied that there were "reasonable grounds" for the issue. On the face of the warrants which were issued, the justice has expressed satisfaction that there were reasonable grounds for doing so, doubtless relying upon the evidence presented by Mr Giorgiutti.
46 The informant upon whose application the justice issued the arrest warrant is identified on the face of the warrant as having been a police officer, Det. Sgt Nolan. The warrant was granted at a time prior to the repeal of the Justices Act, and since it was a first instance warrant the justice was required to consider the information laid in writing, to be substantiated on oath: ss 22, 23 of the Justices Act. Exhibit B discloses that it was the police officer whose oath substantiated the information in this case.
47 It must be borne in mind that the plaintiffs' claim that the search warrants and the arrest warrant were invalid is based upon the decision in Ha, and the invalidity of the legislation determined in that case. If a person was to present a knowingly false application to a justice asserting reasonable grounds for the issue of a warrant, then action may, of course, lie against such a person: see Hope v Evered (1886-87) 17 QBD 338 and in particular the judgment of Lord Coleridge CJ at 340. However, this is not such a case, and it is not contended that it is. Further, even if it had been a knowingly false application, the cause of action would not have been the cause which the first plaintiff here pleads. The remedy would have been an action for malicious prosecution: see Soo (supra).
48 Mr Horsley's submission in essence was that the first defendant was involved in the operation and it was arguable that if the matter went to trial there may be room for a finding that its conduct determined the execution of the warrant. However, the authority for what was done by the second and third defendants was to be found in the warrants issued by the justice, and it is inescapable that this authority afforded the asserted justification for the seizure of the goods and the arrest of the first plaintiff.
49 The justice who issued the warrants was not the first defendant's agent and for the above reasons, I have come to the conclusion that the first plaintiff has no arguable case against the first defendant, whether based upon an assertion of vicarious liability or otherwise, for what the police officers did by way of execution of the warrants.