Crown Suits Act 1947 (WA), s 5

Police Act 1892 (WA), s 137(5)

Rules of the Supreme Court 1971 (WA), O 21 r 3(1)

Plaintiff to pay defendant's costs of the application

British Railway Traffic and Electric Co Ltd v CRC Co Ltd [1922] 2 KB 260

Enever v The King [1906] HCA 3; (1906) 3 CLR 969

1 LE MIERE J: The defendant has applied for orders that the plaintiff's statement of claim be struck out on the grounds that it reveals no reasonable cause of action, is scandalous, frivolous and vexatious and may prejudice, embarrass or delay the fair trial of the action and that the action be dismissed.

2 The plaintiff describes Ms Joyce Lim as his ex-girlfriend. The plaintiff and Ms Lim were in a relationship for eight months prior to October 2008. In December 2008 there was an interim restraining order in force against the plaintiff taken out by Ms Lim.

3 In an affidavit sworn on 21 April 2010 Sergeant Skehan says that on 31 December 2009 a person came to the Perth police station and made a complaint concerning threats allegedly made by the plaintiff. At approximately 6.00 pm Sergeant Skehan, together with three other police officers, went to a house in Claremont. Sergeant Skehan says that was the plaintiff's last known home address. The plaintiff says there were a number of people at the house.

4 The plaintiff says that Sergeant Skehan said to two people at the house, MT and AT, that the plaintiff had emailed certain threats to his ex-girlfriend and by so doing breached a restraining order. The plaintiff says the police officers then searched the house extensively. The plaintiff says that a number of people were informed of the slanderous accusations resulting in the attendance of the police.

5 The plaintiff says that the police did not do what they did for any investigative or preventive police function but to harass and intimidate the plaintiff.

6 The plaintiff filed a statement of claim on 7 April 2010. The statement of claim commences by describing the plaintiff and some of his social characteristics. In [2] and [3] the plaintiff pleads:

The defendant is the employer of The WA Police Service and by statute and common law is responsible in tort for the acts and omissions of the WA Police Service, its servant's officers and employees.

At all material times the WA Police officers were acting in the course of their employment by the defendant and/or on behalf of the defendant, which is accordingly vicariously liable for the actions and defaults pleaded herein.

7 The plaintiff then pleads that at approximately 6.00 pm on 31 December 2009 four police officers led by Sergeant Skehan arrived at the house in Claremont and 'acted in an alarmist fashion as if responding to a serious critically urgent life threatening situation'.

8 In [5] the plaintiff pleads that Sergeant Skehan told AT that the plaintiff had emailed certain threats to his ex-girlfriend and by so doing breached a restraining order.

9 In [6] the plaintiff pleads that Sergeant Skehan reported to MT that the plaintiff had emailed certain threats to his ex-girlfriend and by so doing breached a restraining order.

10 In [7] the plaintiff pleads that Sergeant Skehan having received permission to do so, searched the house.

11 In [8] the plaintiff pleads that a small crowd of neighbours were present and it was reported to the plaintiff that all the neighbours were made aware of the slander.

12 In [12] the plaintiff pleads that a married couple with their child, were informed of the slanderous accusations resulting in the attendance of WA Police. In [13] the plaintiff pleads that two other people were also informed of the false allegations and slander.

13 The words 'Particulars of Malice' appear before [17] of the statement of claim. Paragraph 17 then pleads:

The WA Police had no honest belief in reporting to the plaintiff's family and friends of the words complained of, or were reckless as to if the truth of the report, aggravated damages are further claimed herein:

14 The plaintiff then sets out 15 subparagraphs including the following:

1. The defendant has been acting in a way to continually harass and intimidate the plaintiff, by an ongoing course of conduct and that fact is hereby pleaded herein.
2. The words complained of were made ultroneously and offered voluntarily and as WA Police officers on duty were not required to state the words complained of in the course of their duty, and distribute malicious lies.

1. The attendance at the [house in Claremont] and the comments of slander made, where done in such a way as to cause maximum possible damage to the plaintiff's feelings and reputation, because the WA Police were aware that the plaintiff did not live at [the house in Claremont], and had visited the plaintiff at his home address ... on 3 different occasions previously.
2. Exemplary damages are pleaded herein because: WA Police didn't care if the words complained of were true or not, were reckless in speaking the words complained of, the WA Police didn't check the accuracy of the words complained of, and indifferent as to the effects on the plaintiff of uttering the words complained of.

1. If the WA Police had any real concerns regarding the plaintiff's state of mind, and any legitimate threats the plaintiff had made, they would have attended the plaintiff's home and questioned the plaintiff, as opposed to causing a scene and making slanderous remarks to his family and friends. The attendance at the [house in Claremont] served no investigative or preventative police function. ...

1. ... the WA Police officer's intention on attending the plaintiff's house on 31/12/09 was purely to harass and intimidate the plaintiff and no charges were ever laid or any explanation offered.

15 In other subparagraphs of [17] the plaintiff refers to contacts between himself, and others with WA Police after 31 December 2009. The plaintiff also refers to the police contacting a doctor and says that the defendant made statements defamatory of the plaintiff to the doctor. The plaintiff also refers to proceedings relating to the restraining order. The plaintiff refers to the alleged threats made by him to Ms Lim and says that he made no such threats. The plaintiff says that Ms Lim's accusations against him were false but the police refused to investigate them.

16 In [18] the plaintiff says that he did not breach the interim restraining order or send threatening communications to Ms Lim or do other things that were alleged.

17 In [19] the plaintiff claims aggravated, special and exemplary damages 'because of the public display of WA police force adding weight to the words complained of'.

18 In [20] - [24] the plaintiff alleges that he has been stalked and harassed online by Ms Lim and a person using an alias. The plaintiff says that the WA police refused to investigate the online identity harassing him.

19 In [25] and [26] the plaintiff says that the statements of the WA police have caused him fear and distress and damage to his feelings.

The plaintiff seeks the termination of the employment of the police officers in question, and that they be barred from conducting any further police work in order to compensate for what was uttered in the presence of [relatives of the plaintiff], to which [one of] the plaintiff's [relations] requested the WA Police officer to cease making such remarks in the presence of her children - an indication of express malice on behalf of the WA Police that such a request was required to be made.

In the case of the children of [MT]: the WA Police did not afford the plaintiff a reasonable expectation of privacy. Even if the false report made by Joyce Lim was a true report on all accounts, when in fact it was a false account by all facts, the WA Police afforded the plaintiff absolutely no privacy, and have caused offence, distress and loss of dignity and young children cannot comprehend malicious lies being reported in front of them by a policeman or question the truth of such words. Such damage cannot be undone regardless of any plea of justification by the defendant to the contrary, the malice is unquestionably evident.

... an 'intense focus' should be had into the severity of the accusations of the WA Police, their disregard for the plaintiff's privacy and the effects of the words complained of being spoken to his immediate family members, friends and neighbors in lowering the esteem of the plaintiff, and the resulting damage to the feelings of the plaintiff ...

Liability of State at common law for acts of police

22 The plaintiff pleads that the State is responsible in tort for the acts and omissions of the police officers at common law and by statute. I will start by considering the position at common law.

23 The Crown is vicariously liable for the torts of its servants. Proceedings are to be taken against the Crown under the title 'The State of Western Australia': Crown Suits Act 1947 (WA) s 5. At common law a police officer is for some purposes a servant of the Crown. However, if a tort is committed by a Crown servant while purporting to exercise a power or duty conferred by law directly on the Crown servant, the Crown is not vicariously liable for the tort: Enever v The King [1906] HCA 3; (1906) 3 CLR 969. The principle is referred to as the independent discretion rule: Hogg P & Monahan P J, Liability of the Crown (3rd ed) page 125.

24 The plaintiff says that at all material times the police officers were acting in the course of their employment. The plaintiff says that the police officers attended at the house in Claremont in response to a complaint or complaints from Ms Lim that the plaintiff had emailed threats to her. In essence, the plaintiff alleges that Sergeant Skehan spoke the words complained of whilst acting or purporting to act as a police officer and engaged or purportedly engaged in law enforcement. The conduct of Sergeant Skehan and the police officers falls within their independent discretion as police officers for which the State is not liable at common law by virtue of the common law doctrine of the independent discretion of police officers in the exercise of powers incidental to their office: Enever v The King.

Liability of State under Police Act

25 The independent discretion rule has been abolished in relation to anything done by a police officer without corruption or malice by the Police Act 1892 (WA) (the Act) s 137.

26 Section 137(5) provides:

(5) The Crown is liable for a tort that results from -

(a) anything done by a member of the Police Force, without corruption or malice, while performing or purporting to perform the functions of a member of the Police Force, whether or not under a written or other law;

(b) anything done by a person, without corruption or malice, in assisting a member of the Police Force who is performing or purporting to perform the functions of a member of the Police Force, whether or not under a written or other law.

27 The ordinary or popular meaning of 'malice' is spite or ill-will. The legal meaning of 'malice' is wider. McCardie J once complained that the word 'malice' had been the subject of 'a regrettable exuberance of definition': British Railway Traffic and Electric Co Ltd v CRC Co Ltd [1922] 2 KB 260, 268. In 'Malice in the Law of Torts' (1958) 21 Mod LR 484 G H L Fridman said at (484):

... there must be judicial authority for almost any meaning that a writer wishes to attribute to the word ['malice']. However, these various interpretations can be grouped under four main headings:

(1) spite or ill-will;

(2) any improper motive;

(3) the intent to do a wrongful act;

(4) the intent to inflict injury without just cause or excuse.

28 The idea of malice is an element in certain forms of liability such as nuisance, malicious prosecution, malicious falsehood and defamation. At the heart of the notion of malice is the abuse of a power for some improper motive or purpose. In general, police officers have common law and statutory powers to enable them to carry out their duty of preserving the peace and detecting crime. It is not necessary to explore the outer limits of the meaning of 'without corruption or malice' in s 137(5) of the Act. At the heart of the notion of malice in s 137(5) of the Act is the notion of the abuse of power or acting for an improper motive or purpose.

The plaintiff's case under s 137(5)

29 Paragraph 17 of the statement of claim is preceded by the words 'Particulars of Malice'. Paragraph 17 commences with the allegation that the WA Police had no honest belief in reporting to the plaintiff's family and friends the words complained of, or were reckless as to the truth of the report. The subparagraphs of [17] then make a number of allegations that go to the purpose of, or motive for, the actions of the police officers, including Sergeant Skehan. Paragraph (i) says that the defendant has been acting in a way to continually harass and intimidate the plaintiff. Paragraph (ii) says that the words complained of were made 'ultroneously and offered voluntarily', that the police officers were not required to state the words complained of in the course of their duty or to 'distribute malicious lies'. That is an express allegation of malice connected with an allegation that the police officers spoke the words unnecessarily and voluntarily. In [iv] the plaintiff alleges that the attendance at the house was done in such a way as to cause maximum possible damage to the plaintiff's feelings and reputation and the police knew that the plaintiff did not live there. That is in effect an allegation that the conduct of the police officers was for an improper or ulterior purpose rather than for the purpose of maintaining the peace or investigating breaches of the law. In [viii] the plaintiff says that the attendance at the house in Claremont served no investigative or preventative police function. In [ix] the plaintiff says that the police officers intention on attending the house in Claremont on 31 December 2009 was purely to harass and intimidate the plaintiff.

30 The thrust of the plaintiff's case is that the conduct of Sergeant Skehan and the other police officers, including speaking the words complained of, was done not for a proper purpose of law enforcement or investigation but for an improper purpose. The plaintiff's case is, in effect, that Sergeant Skehan and the other police officers acted with corruption or malice. That is made express in [17] and the following paragraphs. Paragraph 17 is preceded by the words 'Particulars of Malice'. In [27] of the statement of claim the plaintiff says that the police officer uttering the words complained of in the presence of relatives of the plaintiff is an indication of express malice. In [28] the words complained of are referred to as 'malicious lies'. Paragraph 28 concludes with the words, 'the malice is unquestionably evident'.

31 The conduct of Sergeant Skehan, or the other police officers, in speaking the words complained of is not conduct in respect of which s 137(5) of the Act would permit action to be brought against the State of Western Australia.

32 The defendant seeks orders that the statement of claim be struck out and the action be dismissed. The statement of claim discloses no reasonable cause of action and should be struck out if it has not been amended. If the statement of claim has been amended then it is not necessary or possible to strike it out. Furthermore, if the statement of claim has been amended the court would have to consider the amended statement of claim before deciding whether or not to dismiss the action.

Amended statement of claim filed 5 July 2010

33 On 5 July 2010, that is, after the hearing of the defendant's application that the statement of claim be struck out and the action dismissed but before the publication of these reasons, the plaintiff filed an amended statement of claim dated 5 July 2010. The pleading states that it was filed pursuant to O 21 r 3(1) which provides that a party may, without the leave of the court, amend any pleading of his once at any time before the pleadings are deemed to be closed. The defendant subsequently informed the court, in effect, that the amended statement of claim of 5 July 2010 is irregular because the plaintiff had already amended his statement of claim in the form of the pleading entitled 'The plaintiff's statement of claim amended 11/5/10'. On 7 July 2010 the plaintiff applied by chamber summons for leave to amend his statement of claim in accordance with the amended statement of claim dated 5 July 2010.

34 The defendant applied by chamber summons dated and filed 15 April 2010 to strike out the statement of claim, that is the statement of claim of 7 April 2010. The summons came on for hearing on 11 May 2010. When the matter was called on counsel for the defendant, Mr Wilkinson, commenced his submissions with the statement:

I seek to strike out the statement of claim on the ground stated in the submissions that I filed dated 5 May 2010.

Those submissions referred to the statement of claim of 7 April 2010. I then asked Mr Wilkinson whether he had received from the plaintiff a document entitled 'the Plaintiff's Statement of Claim amended 11/5/10'. Mr Wilkinson stated that he had received the document before court that day. The plaintiff then informed me that he proposed to file and serve 'this amended statement of claim'. I then asked the plaintiff whether he conceded that the existing statement of claim should be struck out but received no definitive answer. I then asked Mr Wilkinson what he had to say about 'the Plaintiff's statement of claim amended 11/5/10'. Mr Wilkinson said:

I will leave it in your discretion as to whether we would allow that amended statement of claim to be admitted and then we will have to address that statement of claim as well.

35 I then asked Mr Wilkinson what he said are the fundamental problems with the existing statement of claim, that is the statement of claim of 7 April 2010. Mr Wilkinson proceeded to make submissions about the statement of claim of 7 April 2010 and why it should be struck out. In the course of Mr Wilkinson's submissions and the submissions in reply by the plaintiff I made reference on three occasions to the plaintiff's proposed amended statement of claim.

36 After hearing from both Mr Wilkinson and the plaintiff I gave the plaintiff leave to file and serve written submissions in opposition to the defendant's summons of 15 April 2010 and leave to the defendant to file and serve written submissions in reply. I did so because the issue of the plaintiff pleading that the police officers acted with malice, and the consequences of that allegation, had been raised for the first time that morning and the plaintiff had not had a proper opportunity to consider his response to that issue. I further directed that I would determine the defendant's summons of 15 April 2010 on the papers.

37 The plaintiff filed written submissions dated 9 June 2010. The defendant filed written submissions in reply dated 11 June 2010. In those submissions the defendant submitted that the 'amended statement of claim dated 11 May 2010 should be struck out'.

38 The plaintiff did not file his proposed amended statement of claim of 11 May 2010. I did not order that the proposed amended statement of claim of 11 May 2010 stand as the amended statement of claim or give leave to amend the statement of claim in terms of that document or at all. Accordingly, the statement of claim of 7 April 2010 was not amended by 'the plaintiff's statement of claim amended 11/5/10' or at all prior to the plaintiff filing his amended statement of claim of 5 July 2010.

39 When the plaintiff filed his amended statement of claim of 5 July 2010 his statement of claim of 7 April 2010 had not been amended. Accordingly, in the absence of any order, he was entitled to amend his statement of claim pursuant to O 21 r 3(1). The plaintiff's amended statement of claim of 5 July 2010 was accepted by the court registry and filed. Accordingly, after 5 July 2010 the plaintiff's statement of claim of 7 April 2010 ceased to have any effect.

40 The defendant has raised doubts about the status of the plaintiff's amended statement of claim of 5 July 2010 and the plaintiff has sought leave to amend his statement of claim in accordance with the amended statement of claim of 5 July 2010. In those circumstances I will hear from the parties as to the appropriate orders that should be made on the defendant's summons of 15 April 2010. My present view, before hearing from the parties on the materials presently before me is that no order should be made on the defendant's summons except for an order in relation to costs. So far as costs are concerned, the plaintiff should pay the defendant's costs of the application. The defendant has succeeded in its argument that the statement of claim discloses no reasonable cause of action. The plaintiff did not file his amended statement of claim until after the hearing of the defendant's application. I will hear from the parties whether the costs should be fixed and payable forthwith.

41 If the defendant maintains that the amended statement of claim of 5 July 2010 is irregular then the defendant should apply to disallow the amendment. If the defendant accepts that the amendment is regular but that the statement of claim should be struck out on the grounds that it discloses no reasonable cause of action, it is scandalous, frivolous or vexatious, may prejudice, embarrass or delay the fair trial of the action, is otherwise an abuse of the process of the court, or for any other reason then the defendant should apply to strike out the amended statement of claim. Any such application by the defendant should be heard at the same time as the hearing of the plaintiff's summons for leave to amend his statement of claim.