Clarke, Dallas v State of New South Wales

Strike out pleadings and summary judgment 9I have set out the principles governing the strike out of pleadings and summary judgment at [9] to [13] in my earlier decision of Clarke, Dallas v State of New South Wales [2013] NSWSC 1436 (my earlier judgment), so I will not reproduce them again here. However, it is important to emphasise that mainly the function of pleadings is to state, with sufficient clarity, the case that has to be met by the defendant. In this way, pleadings serve to define the issues for decision and ensure the basic requirement of procedural fairness that a party should have the opportunity of meeting the case against him or her: Banque Commerciale SA En Liquidation v Akhill Holdings Ltd [1990] HCA 11; (1990) 169 CLR 279 at 286-287 and 302-3. 10Overall, the defendant says that the pleadings contained in paragraphs [20], [37], [53], [54], [62] - [78], [79] and [80] which refer to "conspiracy", have been copied from proceedings 2013/111053 which were dismissed on 2 October 2013: see Clarke v State of New South Wales [2013] NSWSC 1436). The defendant also seeks that paragraphs [32] to [80] be dismissed. While the plaintiff has cut and pasted most of his earlier pleadings in relation to false imprisonment and malicious prosecution into the current ASC, he regrettably has not had the benefit of legal advice before redrafting his ASC. More importantly the adequacy of the pleadings in relation to false imprisonment and malicious prosecution have not previously been considered by this Court. 11On the issue of strike out or summary judgment or dismissal, the plaintiff's submissions are as follows:

• If the factual pleadings are struck out, it would undermine the action before the Court "not by any legitimate reason, but by some pedantic application of the Uniform Rules. This legalism by the defence should not be allowed".
• The defendant's motion is illegal and the documents in the defendant's solicitor's affidavit are pre-litigation documents from s 18F of the Civil Procedure Act 2005 (NSW) and that the defendant has "made no direct reference of any specific allegations that would support a wrongful motive for the proceedings as being embarrassing, frivolous, vexatious, none disclosing or an abuse of process in motion or supporting affidavit."
• The motion and the defendant's written submissions provide no reasons supporting a claim under r 14.14(2) of the Uniform Civil Procedure Rules.
• The written submissions of the defendant merely repeat in large part its submissions in the previous notice of motion and are in breach of r 14.18 of the Uniform Civil Procedure Rules. The repetitive nature of the defendant's written submissions are "interwoven, difficult to understand and as such are embarrassing" and "would contradict their own claim... that court documents should be brief and not repetitive, interwoven or contradictory". Further, they do not group together "logically grouped issues" and hence, they are embarrassing. 12I shall consider the pleadings in relation to false imprisonment and malicious prosecution and abuse of process. I shall take into account both parties' written and oral submissions. But before I do so, it is convenient that I record my overall impression of the pleadings contained in plaintiff's ASC. The ASC runs to about 30 pages. It is comprised of a lengthy narrative of the plaintiff's grievances, in chronological order, interspersed with some references to the law. Overall, this document is prolix and confusing.

False imprisonment 13The elements of the tort of false imprisonment are based upon the principle that the liberty of an individual cannot be interfered with without valid authorisation. As Kirby J stated in Ruddock v Taylor [2005] HCA 48; (2005) 222 CLR 612 at [138] and [140]: "[138] ... It is a fundamental principle of Australia's constitutional law that the executive may not interfere with the liberty of an individual without valid authorisation. In Re Bolton; Ex parte Beane, Deane J explained: 'The common law of Australia knows no lettre de cachet or executive warrant pursuant to which either citizen or alien can be deprived of his freedom by mere administrative decision or action. Any officer of the Commonwealth Executive who, without judicial warrant, purports to authorise or enforce the detention in custody of another person is acting lawfully only to the extent that his conduct is justified by clear statutory mandate ... It cannot be too strongly stressed that these basic matters are not the stuff of empty rhetoric. They are the very fabric of the freedom under the law which is the prima facie right of every citizen and alien in this land. They represent a bulwark against tyranny.' ... [140] ... A plaintiff who proves that his or her imprisonment was caused by the defendant therefore has a prima face case. At common law it is the defendant who must then show lawful justification for his or her actions." (Citations omitted) 14In Fleming's Law of Torts (10th ed 2011, Lawbook Co) the learned authors, Sappideen and Vines, at [2.80] identify the elements of an action for false imprisonment as: "The action for false imprisonment protects the interest in freedom from physical restraint and coercion against the wrong of intentionally and without lawful justification subjecting another to a total restraint of movement by either causing that person's confinement or preventing that person from leaving the place in which he or she is." 15The plaintiff also made reference to Christie v Leachinsky [1947] AC 573. The brief facts in Christie are that Mr Leachinsky was arrested without a warrant by police officers and charged with unlawful possession. He was taken to a police station and remanded in custody for a week. At the next court appearance, the unlawful possession charge was withdrawn and he was charged with larceny. The House of Lords held: (1) that up until the time that he was charged with larceny, Mr Leachinsky was falsely imprisoned; and (2) it is a condition of lawful arrest that the arrested person should know on what charge or suspicion of what crime they are arrested for. Viscount Simon (at 587-588) set out the principles of false imprisonment. They are: (1)On arrest without a warrant upon reasonable suspicion of felony, or of another crime, where arrest does not require a warrant, the arresting officer must in ordinary circumstances inform the person arrested of the true ground of arrest; in other words, the person is entitled to know on what charge or on suspicion of what crime, they are arrested for; (2)If the person is not so informed but is nevertheless arrested, the arresting officer, apart from certain exceptions, is liable for false imprisonment; (3)If the circumstances of arrest are such that the person must know the general nature of the alleged offence, the requirement to inform the person of why they are arrested does not exist; (4)There is no requirement for technical or precise language to be used; and (5)The arrested person cannot complain that they have not been informed of the above, if they create a situation where it makes it practically impossible to inform them. 16Doing the best I can, I have summarised the plaintiff's main contentions contained in the ASC in relation to the tort of false imprisonment as follows:

• Section 99(3) of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) ("LEPRA") was not satisfied;
• The plaintiff was arrested in violation of ss 86(1)(b), 86(2)(a) of the Crimes Act 1900 (NSW) and he was not informed of the true ground of his arrest in accordance with Christie v Leachinsky;
• He was arrested for the purpose of conducting an Electronically Recorded Interview of a Suspected Person ("ERISP") and ascertaining the plaintiff's fingerprints and imposing bail conditions upon him, the breach of which, could lead to further "legitimate" criminal proceedings against him, to cover up the "fictitious" proceeding; 17So far as Senior Constable Varlin is concerned the plaintiff alleged that he:
• Interviewed two students in breach of s 123 of LEPRA, reg 27 of the Law Enforcement (Powers and Responsibilities) Regulations 2005 (NSW) and s 27 of the Children and Young Persons (Care and Protection) Act 1998 (NSW);
• Lied in explaining how he was called to the school and about the interview with the complainants;
• Altered his notes about the meeting and told the complainants to deny that the meeting occurred;
• Did not proceed with the charges against the plaintiff when he first had the chance but rather waited to a later time, which the plaintiff says indicates the motivations for the arrest;
• The arrest was motivated by the behaviour of the complainants and their poor performance at school which jeopardised their future enrolment in years 11 and 12;
• When the plaintiff went to the police station, the constables were at the complainants home, yet in cross examination in court, they said that they were unable to identify their locations;
• On his arrest, the plaintiff was forced to remove his jewellery and threatened with physical intervention if he did not comply; and
• After the ERISP was taken, he was detained in a cell from 4.15 pm until after 7.00 pm when there was a change of shift, in order to conceal the true time that it took to complete the interview. 18The plaintiff alleges that the defendant breached s 99(3) of LEPRA. Section 99 of that Act then read: "99 Power of police officers to arrest without warrant (cf Crimes Act 1900, s 352, Cth Act, s 3W) (1) A police officer may, without a warrant, arrest a person if: (a) the person is in the act of committing an offence under any Act or statutory instrument, or (b) the person has just committed any such offence, or (c) the person has committed a serious indictable offence for which the person has not been tried. (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. (4) A police officer who arrests a person under this section must, as soon as is reasonably practicable, take the person, and any property found on the person, before an authorised officer to be dealt with according to law." 19The plaintiff pleads that he was arrested on 8 December 2009 on a charge under s 545B of the Crimes Act 1900 (NSW) (Intimidation or annoyance by violence or otherwise) (ASC at [3]) and also on that same day he was issued with a Court Attendance Notice ("CAN") for a charge under s 60E of the Crimes Act (Assaults at schools) (ASC [21]). The plaintiff also complains that an amended CAN issued on 3 December 2010 (ASC [50]), changed the s 60E charge to a charge under s 13 of the Crimes (Domestic and Personal Violence) Act 2007 (NSW) (Stalking or intimidation with intent to cause fear of physical or mental harm). 20As can be seen from the above summary of this pleading, it is difficult to discern whether the plaintiff's case in relation to false imprisonment is based on (a) non-compliance with s 99(3) of LEPRA, or (b) that there was an early agreement between Ms Herd and Senior Constable Varlin and others to have the plaintiff wrongly arrested and their subsequent acts were in furtherance of that agreement, or (c) that he was not advised of the true grounds of his arrest. 21It may be that the plaintiff is relying upon all of these alternatives, or some combination of them. However, as the pleading presently stands, these propositions are internally inconsistent. While I accept that the plaintiff can plead his actions in the alternative, the case he seeks to make out is far from clear, as it covers irrelevant and confusing material.

Malicious prosecution 22I shall start by briefly setting out the elements of the tort of malicious prosecution. In Clyne v State of New South Wales [2012] NSWCA 265, the Court of Appeal referred to A v State of New South Wales [2007] HCA 10; 230 CLR 500 at [1] where the plurality set out the elements of malicious proseuction. For a plaintiff to succeed in an action for damages for malicious prosecution, the plaintiff must establish: (1) That proceedings of the kind to which the tort applies (generally, as in this case, criminal proceedings) were initiated against the plaintiff by the defendant; (2) That the proceedings terminated in favour of the plaintiff; (3) That the defendant, in initiating or maintaining the proceedings acted maliciously; and (4) That the defendant acted without reasonable and probable cause. 23In A v State of New South Wales the High Court observed at [34], [38], [56], [80], [85] and [91]: "[34] ... The identification of the appropriate defendant in a case of malicious prosecution is not always straightforward. 'To incur liability, the defendant must play an active role in the conduct of the proceedings, as by 'instigating' or setting them in motion.' ... [38] ... The question is whether the prosecutor had reasonable and probable cause to do what he did; not whether, regardless of the prosecutor's knowledge or belief, there was reasonable and probable cause for a charge to be laid. The question involves both an objective and a subjective aspect. ... [56] Even if a prosecutor is shown to have initiated or maintained a prosecution maliciously (for example, because of animus towards the person accused) and the prosecution fails, an action for malicious prosecution should not lie where the material before the prosecutor at the time of initiating or maintaining the charge both persuaded the prosecutor that laying a charge was proper, and would have been objectively assessed as warranting the laying of a charge. ... [80] In cases where the prosecutor acted on material provided by third parties, a relevant question in an action for malicious prosecution will be whether the prosecutor is shown not to have honestly concluded that the material was such as to warrant setting the processes of the criminal law in motion. ... ... [85] ... [T]he question in any particular case is ultimately one of fact. ... [T]he resolution of the question will most often depend upon identifying what it is that the plaintiff asserts to be deficient about the material upon which the defendant acted in instituting or maintaining the prosecution. That is an assertion which may, we do not say must, depend upon evidence demonstrating that further inquiry should have been made." [91] ... [T]o constitute malice, the dominant purpose of the prosecutor must be a purpose other than the proper invocation of the criminal law - an 'illegitimate or oblique motive'. That improper purpose must be the sole or dominant purpose actuating the prosecutor." (Citations omitted.) 24In A v State of New South Wales at [73] their Honours continued by saying that in cases where a police officer prosecutes a person on the basis of statements by third parties, there are difficulties in applying a test of reasonable and probable cause which would be satisfied by demonstrating only that the subjective state of mind of the prosecutor fell short of the positive persuasion of guilt. 25In relation to reasonable and probable cause, the Court explained at [77]: "[77] There are three critical points. First, it is the negative proposition that must be established: more probably than not the defendant prosecutor acted without reasonable and probable cause. Secondly, that proposition may be established in either or both of two ways: the defendant prosecutor did not 'honestly believe' the case that was instituted or maintained, or the defendant prosecutor had no sufficient basis for such an honest belief. The third point is that the critical question presented by this element of the tort is: what does the plaintiff demonstrate about what the defendant prosecutor made of the material that he or she had available when deciding whether to prosecute or maintain the prosecution? That is, when the plaintiff asserts that the defendant acted without reasonable and probable cause, what exactly is the content of that assertion?" 26The basis of elements (1) and (2) may have been satisfied. On 31 December 2010, the plaintiff was charged under s 13 of the Crimes (Domestic and Personal Violence) Act (Element 1). On about 26 May 2012, the Magistrate after presiding over a contested hearing spanning a number of days, dismissed the charge against the plaintiff (Element 2). Hence, criminal proceedings were commenced against the plaintiff by the defendant and they were terminated in his favour, but these propositions need to be pleaded. However, while the correct defendant is the State of New South Wales, the plaintiff needs to identify the prosecutor or prosecutors who initiated and/or maintained the prosecution or prosecutions maliciously and in relation to each prosecutor, plead that they acted without reasonable and probable cause.

Malicious prosecution 27Again, doing the best I can, I have summarised the plaintiff's pleadings in relation to malicious prosecution as follows.

The police generally 28The plaintiff alleges that the police:

• Did not follow police procedures and relevant laws in gathering evidence;
• Only relied on uncorroborated evidence from a child witness, even though the incident took place in public;
• Interfered with, altered and suppressed evidence, coordinated lies, lied on oath and used illegally obtained, hearsay and prejudicial evidence;
• Served the brief of evidence, which was missing numerous items, late;
• Abused police powers;
• Unlawfully arrested the plaintiff so that they could get his fingerprints and impose bail conditions upon him;
• Charged him with an offence that could not be proven and changed it at a late stage, which also denied him the right to a trial by jury;
• Ignored court orders about the identity of the complainants and when to serve the brief of evidence;
• Allowed the complainants to change their statements and misled them about keeping their identity a secret;
• Harassed and intimidated him, his legal representation and potentially other witnesses;
• Deceived the Court about what evidence would be led in order to gain favourable rulings;
• Ran a case that needed a 'bizarre' interpretation of the law and the Magistrate's biases in order to succeed; and
• Suppressed court transcripts. 29The plaintiff then makes allegations against particular police officers. It should be emphasised that they are only allegations.

Senior Constable Varlin 30The allegations made against Senior Constable Varlin are that he:

• Suppressed the original statements after the ERISP;
• Suppressed, manipulated and created evidence, altered his notes about meetings with the complainants and took revised statements from them;
• Lied about how he was called to the school and who was present when the complainants were interviewed;
• Hid the existing relationship between Ms Herd and the Parramatta Police;
• Did not comply with the requirements of s 123 of LEPRA, s 27 of the Law Enforcement (Powers and Responsibilities) Regulation 2005 and s 27 of the Children and Young Persons (Care and Protection) Act and s 76 of the Criminal Procedure Act 1986 (NSW) in interviewing the complainants;
• Chose not to charge him when he resumed catching the bus, which was known by other students of the school, but charged him on the same day that the school certificate results came out, showing that the arrest was motivated by the complainants' poor performance at school;
• Met with the complainants but declined to meet with the plaintiff, arresting him instead; and
• Intimidated the plaintiff by threatening to impound his car if he refused to participate in a line up and allow the police to photograph his car.

The court attendance notice (CAN) 31The allegations that the plaintiff makes regarding the CAN are:

• The CAN was issued despite Sergeant Oakley knowing that there were no allegations or evidence;
• There was no parental consent for the children complainants to give evidence;
• Senior Constable Varlin was the informant;
• There was a failure to provide the witnesses' names on the CAN, which shows that the senior constable knew that the allegations were false or authorised a CAN without allegations or evidence;
• An amended CAN changed the charge to s 13 of the Crimes (Domestic and Personal Violence) Act; and
• The police never intended on charging the plaintiff under ss 545B(2), or 60E of the Crimes Act and always intended on changing the charge shortly before the trial, which is shown by the unsubstantiated nature of the s 60E of the Crimes Act charge and the broad nature of the s 13 of the Crimes (Domestic and Personal Violence) Act charge.

Sergeant Plummer (the Police prosecutor at court) 32The plaintiff alleges that in seeking to have the CAN amended, Sergeant Plummer:

• Misled the Court in saying that the matter would proceed on the same evidence, but instead adduced new evidence;
• Objected to evidence including dates of birth, phone numbers and addresses of witnesses and evidence of the events on XXXX Road;
• Interfered with witnesses' testimony by continuously objecting and telling witnesses in Court not to answer two questions, which were suppressed in the transcript.
• His actions in court show an attempt to hide the truth from the Court; and
• All of these facts show that the prosecution fails the test of the five conditions to be met if a person was to have reasonable and probable cause for prosecuting another for an offence in Mitchell v John Heine and Son Ltd (1938) SR (NSW) 466. 33The main complaint made by the defendant in relation to the pleading of the tort of malicious prosecution, is that the elements of the tort are not addressed in any logical fashion so that the material facts relied upon in relation to each element are clear. Further, the defendant says that the plaintiff does not identify the prosecutor or prosecutors who acted in initiating and/or maintaining the proceedings and who acted maliciously and without probable cause. The plaintiff answered this criticism by saying that it was the defendant, namely the State of New South Wales who is responsible because the officers of the Police committed fraud and breached their statutory duties. The plaintiff further explained that each police officer involved in dealings with him had a positive duty to act to stop the malicious prosecution when they realised the charge or charges against him were not supportable. They did not do so. 34So far as Police Commissioner Scipione is concerned, the plaintiff says that he named the Commissioner because the Commissioner is the person who is responsible for the New South Wales police force. I take this to be a submission that the plaintiff is saying that the Commissioner is firstly, vicariously responsible for a police officer's wrongdoing and secondly, did not answer a subpoena addressed to him. 35I am of the view that the Commissioner is not an appropriate defendant. The Commissioner did not play an active role in the conduct of the criminal proceedings by "instigating" or setting them in motion. There is also nothing to support elements (3) and (4) of the tort. This part of the claim should be struck out. 36The allegations made against Sergeant Oakley seem to be that as he issued the CAN, it was his duty to check the accuracy of the allegations made in it. Further, by not acting to stop the prosecution and permitting Senior Constable Varlin to proceed with the prosecution, Sergeant Oakley breached his duty. 37As previously stated, it appears that Sergeant Plummer was the police prosecutor and he also appeared in several applications to issue subpoenas. The allegations against Sergeant Plummer are that he misled the Court by asserting that the plaintiff had no evidence and alleging that it was the plaintiff who was misleading the Court. The plaintiff submitted that had Sergeant Plummer complied with his duties to the Court, he should not have proceeded with the hearing in the Local Court.

Abuse of process 38The ASC at [14] also refers to the tort of collateral abuse of process. The plaintiff cited Williams v Spautz [1992] HCA 34; (1992) 174 CLR 509 where Mason CJ, Dawson, Toohey and McHugh JJ stated at 522-523: "The tort of collateral abuse of process differs from the older action for malicious prosecution in that the plaintiff who sues for abuse of process need not show: (a) that the initial proceeding has terminated in his or her favour; and (b) want of reasonable and probable cause for institution of the initial proceeding." (Citations omitted.) 39Although this pleading is scant, there is a hearing in the ASC "Tort - Abuse of Process (collateral & in the alternative)". The plaintiff pleads that he was arrested for "collateral benefits" (ASC [2]). This pleading does not make it clear what the case is that the defendant has to meet in relation to the tort of abuse of process.

Conspiracy 40Paragraphs [32] to [80] of the ASC reproduce paragraphs [8] to [56] of the 2013/111053 statement of claim in relation to an alleged conspiracy. On 2 October 2013, the pleadings in relation to conspiracy were dismissed by this Court. Leave was not granted to replead the tort of conspiracy. However, the plaintiff asserts, as I understand it, that pleading the conspiracy is necessary to show that the tort of malicious prosecution extended throughout the conduct of both the Local Court and District Court proceedings. A conspiracy is not an element of the tort of malicious prosecution. These paragraphs of the ASC should be struck out.

Whether the plaintiff should be granted leave to replead 41On 2 October 2013, I referred the plaintiff for legal assistance to redraft his ASC in the 2013/111083 proceedings, Dallas Clarke v State of New South Wales. On 14 November 2013, the Deputy Registrar sent a letter to the plaintiff informing him that after making calls for expressions of interest no pro bono assistance was forthcoming and the referral was terminated. 42The plaintiff also informed the Court that he attempted to seek legal advice from lawyers who had acted in other cases of malicious prosecutions but he was unable to secure any legal advice from them. These torts are difficult to plead. The plaintiff says that if he has a further opportunity to replead his claim he intends to seek legal advice. The issue is whether I should, in the exercise of my discretion, allow him to do so. This is the first time this Court has considered the adequacy of the plaintiff's pleadings in relation to false imprisonment, malicious prosecution and abuse of process. In the exercise of my discretion, the plaintiff should be afforded one more opportunity to seek legal advice and replead these causes of action. Hence, I grant leave for the plaintiff to file a further amended statement of claim. I allow a further eight weeks in order for him to do so.

The Court orders that: (1) The amended statement of claim is struck out. (2) Leave is granted to the plaintiff to file a further amended statement of claim by 16 July 2014. (3) Costs are reserved.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 21 May 2014