Clarke v State of New South Wales

The genesis of this application

1. Mr Clarke commenced these and other related proceedings in April 2013, seeking aggravated damages for a variety of causes of action.
2. Those claims arose out of Mr Clarke's arrest on 8 December 2009, it appears after complaints were made to police about his conduct in relation to two schoolgirls. He was initially charged under s 545B of the Crimes Act 1900 (NSW) (for intimidation or annoyance by violence or otherwise) and a court attendance notice for a charge under s 60E of the Crimes Act (assaults etc at school) was also issued. A further court attendance notice was issued in December 2010, in which that charge was amended 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).
3. The charges were dismissed by Swain LCM in May 2012. Mr Clarke then brought proceedings against the State for wrongful arrest, false imprisonment and malicious prosecution and against the magistrate for conspiracy (see Clarke, Dallas v State of New South Wales [2013] NSWSC 1436).
4. Harrison AsJ dismissed the conspiracy proceedings brought against the magistrate and the malicious prosecution claim. Her Honour required Mr Clarke's claims of wrongful arrest and malicious prosecution to be dealt with in the one amended statement of claim. Her Honour later, however, struck out Mr Clarke's amended pleading in Clarke, Dallas v State of New South Wales (No 3).
5. Mr Clarke was refused leave to appeal these decisions (see Clarke v State of New South Wales [2015] NSWCA 27).
6. Garling J later struck out Mr Clarke's further amended statement of claim, giving Mr Clarke leave to file a motion seeking leave to file a further amended pleading. He now seeks that leave. I am satisfied that it cannot be granted.

Mr Clarke's case

1. In essence, what Mr Clarke has to do by his pleading is to disclose his claims with some clarity, so that:

• the State is put on notice of the case it has to meet;
• so that the issues lying between the parties can be clearly identified;
• the overriding purpose specified by s 56 of the Civil Procedure Act 2005 (NSW), the just, quick and cheap resolution of the real issues in the proceedings which governs these proceedings, can be met by the Court and the parties

1. Garling J analysed the pleading which Mr Clarke then sought to pursue at [47] - [68] of his judgment, concluding that that pleading was largely identical in form and content to that which Harrison AsJ had struck out and accordingly, that it could not stand. His Honour also concluded that the pleading of damages was "nonsense" (see at [72]).
2. To take the malicious prosecution claim as an example, Garling J observed at [56] - [64]: 56 The plaintiff submits that in effect the current Motion is some form of an appeal against the decision of Harrison AsJ. That is not so. This is a Notice of Motion seeking orders with respect to a version of the Statement of Claim, namely the FASoC, which was first filed on 17 March 2015. 57 The plaintiff seeks in submissions to blame the defendant, the State, for the lack of specificity in his pleadings. There is simply no merit in that submission. 58 Next, the FASoC pleads the tort of malicious prosecution. Again, it does so in terms which refer to decided cases and contains quotations from judgments in decided cases. The pleading contains sentences which include statements of fact, assertions of impropriety mixed with adjectival descriptions of conduct and allegations of unlawful conduct. 59 Nowhere does the material which purports to set out a pleading of the tort of malicious prosecution do so in a logical fashion. It does not set out the basal facts in a way which complies with the UCPR. The elements of the tort are not set out in a way which identifies the facts relevant to each element. Nor does the FASoC provide any adequate pleading of loss or damage. 60 In particular, the pleading contains confusing and confused assertions about the identity of the prosecutor. The pleading contains allegations of behaviour by the Local Court Magistrate, which have no relevance to the cause of action sued upon, or to these proceedings generally. 61 Having set out these matters in a jumbled, confusing and prolix way, the pleading then goes on to set out "allegations of fraud and breach of statutory duty". It thereafter names individual police officers and, with respect to each officer, either repeats or substantially repeats earlier pleadings, but in a way which confusingly contains inconsistent allegations. 62 Nowhere is it clear whom it is alleged was the prosecutor, or prosecutors, who acted against the plaintiff in a tortious way. The addition of a pleading which suggests that the prosecutor ought be regarded as "… a public prosecution by an organisation …" misunderstands and misquotes the law to which reference is impermissibly made in that paragraph. 63 It is worthwhile setting out these two paragraphs in full. They read: "17. Identifying who is the prosecutor is further complicated by the fact that the charges have been changed. In A v State NSW [2007] HCA 10 at 38, the prosecutor, the person who effectively sets criminal proceedings in motion, accepts the form of responsibility, or accountability, imposed by the tort of malicious prosecution. In this matter the fact that the charge has been altered changes what was initially accepted by Senior Constable Marcus Varlin as an individual prosecutor and brings this into the context of a public prosecution by an organisation (ibid at 41). 18. Further the prosecutor failed to comply with the NSW Bar Association rules to insure a fair hearing (2011 Bar Rule 26; 60; 68; 86; 88; and 89) as identified in Zreika v NSW [2011] NSWDC 67 at 141-144. Also pretrial discloser requirements s 138(f) Criminal Procedure Act (NSW) 1986 in the failure to provide copies of the 07/12/2009 Statements, 29/09/2009 triple-0 phone call and the identity of the third Police Officer present at OLMC during the interviews (21/12/2010 p73 ln23; 25/05/2011 p61 ln4; p105 ln23." (sic) 64 As is self-evident from the terms of these paragraphs, they do not approach an appropriate form for a pleading of the tort of malicious prosecution."
3. The pleading for which leave is now pressed was annexed to an affidavit sworn by Mr Clarke in December 2015. It had been amended after correspondence between the parties, by which Mr Clarke was put on notice of the objections which the State explained it still had to his proposed further pleading. They included, for example, his failure still to clearly identify the prosecutor about whom his claims were advanced, or the facts upon which he contends that the elements of the tort were committed.
4. In his written submissions Mr Clarke dealt with the question of "who is the prosecutor", by postulating who, amongst the complainants, their parents, a teacher and numerous unidentified employees of the Crown, he could potentially prosecute. His submission was that the likely effect of the State's argument about the identification of the prosecutor, was that someone else should be a party to the proceedings; and that third parties should be responsible for actions of the State. He argued that if the State wished to assert that someone else had responsibility, it should take its own actions against them.
5. Mr Clarke also submitted that in claims such as this, police officers were not individually named as defendants, a matter not properly taken into account by Harrison AsJ. He also submitted that the prosecutor, the individual who originated the proceedings brought against him was Senior Constable Varlin; that at a pretrial meeting, with the Senior Constable, he was served a modified court attendance notice, which he claimed had not been modified in accordance with the requirements of the Criminal Procedure Act 1986 (NSW); that the identity of the person who had modified the notice had been concealed from him; that this had created an ambiguity as to who the prosecutor was; and that this unlawful conduct ought not to be rewarded, by precluding him from bringing these proceedings.
6. In the result, Mr Clarke argued, his inability to identify the prosecutor had the result that the charge had been brought against him by the NSW Police Force as an organisation, as discussed in A v State of New South Wales [2007] HCA 10; (2010) 230 CLR 500 at [41], where it was observed: "In the case of a public prosecution, initiated by a police officer, or a Director of Public Prosecutions or some other authority, where a prosecutor has no personal interest in the matter, and no personal knowledge of the parties or the alleged events, and is performing a public duty, the organisational setting in which a decision to prosecute is taken could be of factual importance in deciding the issue of malice."
7. That observation, it should be noted in passing, does not provide a foundation for the conclusion that Mr Clarke need not in his pleading identify the prosecutor for whom he alleges the State has liability, on whose acts his claims about malicious prosecution rests. It is rather concerned with how the third element of the tort, which requires that malice be established, might be proven in a particular case.
8. Mr Clarke also complained that the State was resorting "to legal trickery and pedantic technical legal argument", not founded on existing legal rules, to prevent him from pursuing his legitimate complaints; that he was being forced to incur excessive high costs and being denied a fair hearing, by the Court permitting the State to pursue this course; that the State's approach to his application involved an abuse of process; and that it was contrary to the obligations falling on the State under the Rules.
9. The result was that cases of police corruption were bogged down in a bureaucratic quagmire of legal argument, in flagrant breach of the Crown's fiduciary obligation to protect all of its citizens. The result was, Mr Clarke submitted, a systemic failure of Australia's system of governance.
10. These submissions cannot be accepted.

The proposed pleading

1. This document does not identify how it has been amended, but it is considerably shorter than that considered by Garling J. It no longer identifies that Mr Clarke is pursuing claims as to false imprisonment, malicious prosecution, fraud and breach of statutory duty. Nevertheless, in its terms, claims about false imprisonment and malicious prosecution are raised.
2. Amongst other difficulties, this document still does not specifically plead the elements of these torts, or the facts by which those elements are claimed to be established. The elements of the tort of malicious prosecution are those discussed in A v State of New South Wales at [1]: "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."
3. The document still fails to identify the prosecutor. As discussed in A v State of New South Wales at [34]: "… 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."
4. That difficulty does not mean, however, that a plaintiff who wants to pursue a claim of malicious prosecution can proceed without identifying the prosecutor , or by simply claiming that the tort has been committed by an institution such as the police force, or the even by the State.
5. It may not be overlooked that even when, as in Mr Clarke's case, a prosecution is brought by the police, because acts relating to an alleged offence may be solely within a complainant's knowledge, with the result, as a practical matter, that the police officer who laid the charge could not have exercised any independent discretion, it is the complainant who may be sued for malicious prosecution (see A v State of New South Wales at [35]).
6. Mr Clarke has elected to sue the State. That is a matter for him. It was apparently Senior Constable Varlin who initially brought the prosecution pursued against Mr Clarke after complaints received from two complainants were investigated. Mr Clarke's proposed pleading does not identify whether it was Senior Constable Varlin, or someone else, who he claims committed the acts which constituted the malicious prosecution.
7. As discussed in A v State of New South Wales at [37] - [38], there in the context of a police officer who heard uncorroborated allegations of sexual abuse from two young children, it was accepted that the officer had to take the responsibility for deciding whether to lay charges and that his state of belief was relevant to whether he had reasonable and probable cause to prosecute. As there discussed, the nature of that belief: "… requires that the prosecutor, the person effectively sets criminal proceedings in motion, accept the form of responsibility, or accountability, imposed by the tort of malicious prosecution. In so far as one element of the tort concerns reasonable and probable cause, the question is not abstract or purely objective. 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."
8. This is why it is necessary, for example, for Mr Clarke to identify in his pleading the person he claims, as prosecutor, did not have reasonable and probable cause to lay the charges pursued against him, which a prosecutor must have. This Mr Clarke's proposed pleading still fails to do, despite Harrison AsJ, the Court of Appeal and Garling J all taking the view that the prosecutor must be identified. Despite what Mr Clarke says in the proposed pleading as to various acts of Senior Constable Varlin, what acts are claimed to have constituted the elements of the malicious prosecution, are not there revealed.
9. Without such pleading, neither the question of whether those acts establish the tort, nor the question of whether the State is liable for the prosecutor's conduct can be addressed by the State in its defence, nor resolved by the Court.
10. There are other problems with the pleading.
11. It commences with a claim for an order removing, deleting and destroying finger prints, photos and other unlawfully obtained information obtained by the NSW Police during the course of unlawful actions pursued in December 2009; orders that the Police and NSW Government remove, deleted and destroy all police and court records describing and or detailing "the vexation allegations". Unspecified damages, including aggravated and exemplary damages, costs and interest.
12. The particulars provided begin with Mr Clarke's qualification and occupation. It identifies the State to be the defendant at [3] by virtue of the fact that it is "the employer of the true defendants who are employees of the NSW Police Force". At [4] it is said that "the employees are not named defendants by operation of the Act".
13. At [5] the arresting officer, Senior Constable Varlin is referred to and particulars of the arrest and charges laid on 8 December 2009 are given. They include Mr Clarke's arrest, some 40 days after the alleged incident; his participation in an electronically recorded interview in relation to two incidents involving two complainants; and that Senior Constable Varlin was the named officer on the court attendance notice. Later in the document reference is repeatedly made to "the Senior Constable" a reference, it must be inferred, to Senior Constable Varlin.
14. It is then claimed at [8] that "the police" lacked any evidence to support allegations which could substantiate any offence, particulars of which are given by reference, it must be inferred, to steps taken by Senior Constable Varlin to investigate the complaints received.
15. At [9] there is a complaint that information and evidence obtained by police prior to Mr Clarke's arrest was supressed during the prosecution, contrary to the prosecutor's obligation to divulge all relevant evidence, particulars of which are given. At [10] there is pleaded an agreement between, I infer. Senior Constable Varlin and the complainants, to conceal their identity. At [11] there is a claim of interference with Mr Clarke's legal representation and failure to comply with court orders. At [12] it is alleged that Senior Constable Varlin threatened and intimidated Mr Clarke. At [13] further allegations are made about suppression of evidence, including an allegation at particular (g) that: "The police prosecutor, Sergeant Plummer, repetitive baseless objections to almost every question put in cross examination by the accused"
16. In his oral submissions Mr Clarke confirmed that he did not contend that it was Sergeant Plummer who was the prosecutor. Accordingly, it is difficult to see the relevance of this particular.
17. What all of the particulars which recount events which Mr Clarke contends occurred fail to do, is to identify the facts, matters and circumstances which he contends establish the various elements of the torts which he wishes to pursue. So far as malicious prosecution is concerned, again for example, they do not reveal, for example, the basic facts on which he contends that the prosecutor acted maliciously, not have reasonable and probable cause to lay charges against him.
18. In the result the leave sought must be refused. The proposed pleading remains defective. It is still illogical; it fails to plead the elements of the torts pursued; and fails to disclose the facts on which the elements of those torts are said to be established. It also still fails to provide adequate pleadings of loss or damage.
19. This conclusion is not the result of pedantic adherence to technical pleading rules, accepted in order to defeat Mr Clarke's right to pursue serious claims which he says to pursue against the State. Such claims cannot be pursued by the mere recitation of events about which he is dissatisfied. It is the result of Mr Clarke's failure to accept the earlier decisions which bind him and to adhere to the requirements imposed upon him, as they are on all litigants, by the requirements earlier discussed.
20. That it is the State against whom he wishes to pursue his claims cannot relieve him of the obligation to abide by the requirements to put the other side and the Court on proper notice of his case and its basis. Litigation cannot be conducted on the basis of ambush or surprise, even when brought against the State. Mr Clarke not having met his obligations, his application for leave must be refused.

Orders and costs

1. The orders sought by the State were: 1. That Notice of Motion filed by the plaintiff on 11 September 2015 be dismissed. 2. That if the plaintiff seeks to file any further amended statement of claim, he is to seek leave of the Court to do so, by filing and serving a Notice of Motion by a date suitable to the Court accompanied by the proposed version of his pleading and any affidavit that may be appropriate in support to his motion. 3. That the leave proposed amended statement of claim be limited to the causes of action of false imprisonment and malicious prosecution by Senior Constable Varlin. 4. Order the plaintiff to pay the defendant's costs of the Notice of Motion.
2. Mr Clarke resisted any order for costs being made at this stage of the proceedings, even though the usual order under the Rules is that costs should follow the event. In this case that would be an order that he bear the State's costs of his failed motion.
3. A costs order is not, as I explained to Mr Clarke, designed to punish an unsuccessful party, but rather to ensure that a successful party recovers, at least, a part of the cost to which it has been put by the unsuccessful party.
4. In this case Mr Clarke has still not produced a properly pleaded claim, despite all that has transpired thus far in these proceedings. Given the procedural history of the matter, there is no just reason for refusing to make the usual order as to costs.
5. Further, in the circumstances he should have only a further short period to make any further application for leave. Given the procedural history of the matter that should be no more than 28 days.

Orders

1. For these reasons, I order: 1. Mr Clarke's 11 September 2015 motion is dismissed. 2. If Mr Clarke wishes to file any further amended statement of claim he must seek the Court's leave by filing and serving a further motion supported by an affidavit on or before 4 March 2016. 3. Mr Clarke is to bear the State's costs of the motion, as agreed or assessed.

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