Clavel v Savage & 4 Ors

[2004] NSWSC 292

Supreme Court of NSW|2004-03-17

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Supreme Court of NSW

Decision date

2004-03-17

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Judgment (49 paragraphs)

[1]

CITATION : Clavel v Savage & 4 Ors [2004] NSWSC 292 HEARING DATE(S) : 17 March 2004 JUDGMENT DATE : 15 April 2004 JURISDICTION: Common Law JUDGMENT OF : Master Harrison DECISION : (1) Leave be granted to the plaintiffs to file and serve a FASC within 21 days; (2) The notice of motion filed by the first and second defendants dated 16 October 2003 and the notice of motion filed by the third defendant on 9 October 2003 are dismissed; (3) The defendants are to pay the plaintiffs' costs of the motions except the plaintiffs are to pay the costs thrown away by the amendments to the ASC.

[2]

CATCHWORDS : Summary judgment, malicious prosecution, abuse of process, assault, false imprisonment, emotional distress LEGISLATION CITED : Law Reform (Vicarious Liabilkity) Act 1983 (NSW) Supreme Court Rules - Part 15 r 26 Air Services Australia v Zarb (unreported, NSWCA, 26 August 1998) Attorney General (NSW) v Spautz [2001] NSWSC 66 Battista v Cooper (1976) 14 SASR 225 Bielitski v Obadiak (1922) 65 DLR 627 Brown v Hawkes (1891) 2 QB 718 Bunyan v Jordan (1937) 57 CLR 1 Butler v Simmons Crowley and Galvin [1999] Commomwealth Life Assurance Society Ltd v Brain (1934-1935) 53 CLR 343 Dey v Victorian Railways Commissioners (1949) 78 CLR 62 Dulisu v White & Sons [1901] 2 KB 669 Frost v The Speaker of the Legislative Assembly of New South Wales [2001] NSWSC 639 General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 CASES CITED : Johnson v The Commonwealth (1927) 27 SR (NSW) 133 Mailau v Riordan [2001] ACTSC 13 Mitchell v John Heine and Son Ltd (1938) 38 SR (NSW) 466 Moran v Moran Nos 1, 2, 3, 6 & 9) (2000) ATR 81-554, 555, 556, 557 & 558) Northern Territory of Australia v Mengel (1995) 195 CLR 307 Nye v State of New South Wales & Ors (2004) Aust Tort Reports 81-725; [2003] NSWSC 1212 Pham v Lawson (1997) 68 SASR 124 Purdy v Woznesensky [1937] 2 WWR 116 Stevenson v Basham [1922] NZLR 225 Trobridge v Hardy (1955) 94 CLR 147 Webster & Anor v Lampard (1993) 177 CLR 598 Wilkinson v Townton (1897) 2 QB 57 Williams v Spautz (1991-19992) 174 CLR 509 Jean Luc Calvel (First Plaintiff)

[16]

The law in relation to summary judgment 3 Part 15 r 26 of the Supreme Court Rules 1970 (NSW) (SCR) provides: "(1) Where a pleading - (a) discloses no reasonable cause of action or defence or other case appropriate to the nature of the pleading, (b) has a tendency to cause prejudice, embarrassment or delay in the proceedings, or (c) is otherwise an abuse of the process of the Court, the Court may at any stage of the proceedings, on terms, order that the whole or any part of the pleading be struck out. (2) The Court may receive evidence on the hearing of an application for an order under subrule (1)." 4 Similarly, in Air Services Australia v Zarb (Unreported, NSWCA, 26 August 1998) Rolfe AJA at 13 found it useful to remind himself of the highly demanding test imposed on a party seeking summary judgment. His Honour referred to Dey v Victorian Railways Commissioners (1949) 78 CLR 62; General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 and Webster & Anor v Lampard (1993) 177 CLR 598. I have reproduced some of the passages quoted in Zarb. 5 In General Steel Barwick CJ, who heard the application alone, stated at 130: "Although I can agree with Latham CJ in the same case when he said that the defendant should be saved from the vexation of the continuance of useless and futile proceedings, in my opinion great care must be exercised to ensure that under the guise of achieving expeditious finality a plaintiff is not improperly deprived of his opportunity for the trial of his case by the appointed tribunal. On the other hand, I do not think that the exercise of the jurisdiction should be reserved for those cases where argument is unnecessary to evoke the futility of the plaintiff's claim. Argument, perhaps even of an extensive kind, may be necessary to demonstrate that the case of the plaintiff is so clearly untenable that it cannot possibly succeed." 6 Barwick CJ also said at 129: "It is sufficient for me to say that these cases uniformly adhere to the view that the plaintiff ought not to be denied access to the customary tribunal which deals with actions of the kind he brings, unless his lack of cause of action - if that be the ground on which the court is invited, as in this case, to exercise its powers of summary dismissal - is clearly demonstrated. The test to be applied has been variously expressed; 'so obviously untenable that it cannot possibly succeed'; 'manifestly groundless'; 'so manifestly faulty that it does not admit of argument'; 'discloses a case which the Court is satisfied cannot succeed'; 'under no possibility can there be a good cause of action'; 'be manifest that to allow them' (the pleadings) 'to stand would involve useless expense'." 7 In Webster Mason CJ, Deane and Dawson JJ reinforced the rigorous testing stating, at 602: "The power to order summary judgment must be exercised with 'exceptional caution' and 'should never be exercised unless it is clear that there is no real question to be tried'."

[35]

c. The evidence was from two 10 year old boys. d. The evidence was grossly inconsistent and unreliable. e. The police were aware of disharmony between the first and second plaintiffs and residents of Mackerel Beach, including persons involved in the prosecution. f. The said officers had developed friendships with the first defendant who disliked the first plaintiff and used the processes of the law to assist the first defendant to intimidate the plaintiffs into leaving Mackerel Beach ." 14 It is my view that the requirements outlined by Sir Frederick Jordan CJ in Mitchell at 469-470 as to what must be proved by a plaintiff to show that the defendants lacked reasonable and probable cause have been met. Likewise in respect of the first, third, fourth and fifth prosecutions, the 'absence of the reasonable or probable cause' element of the tort has been adequately pleaded. Malice 15 Having proven an absence of reasonable or probable cause for instituting proceedings, for the claim of malicious prosecution to succeed, the plaintiff needs to prove the presence of malice in instituting the proceedings. In Nye, O'Keefe J referred to Trobridge v Hardy (1955) 94 CLR 147 where Kitto J stated at 162: "The word 'malice' must … mean what has been variously called express malice, actual malice or malice in fact as contrasted with malice in law which is no more than the unlawful intent whenever an injurious act is done intentionally and without just cause or excuse. Malice in the latter sense is not a separate matter of proof. In the former sense, however it forms the subject of a separate issue of fact on which the party alleging it must establish that the conduct of which he complains was actuated solely or predominately by a wrong or indirect motive. This means, where that conduct could only be justified by reference to an authority possessed by the actor to perform functions for the enforcement of law, that he acted 'from an indirect and improper motive, not in furtherance of justice' (Abrath v North Eastern Railway Co (1883) 11 QBD 440 at 455). That is to say, from some desire other than 'to discharge his duty to the public' (Cruise v Burke (1919) 2IR 182 at 186) … (p)roof of motive is always and necessarily a matter of inference, except where a party whose motive is to be ascertained makes a direct admission on the point after the event either in or out of court. Even proof of statements made by him before the event and showing a clear intention to do for an improper reason the acts which thereafter he did, would not be direct proof of malice, for they could provide no more than a ground, when considered with all other relevant circumstances, for drawing an inference that the improper reason persisted at the material time and provided that the defendant at that time with his actuating motive" 16 O'Keefe J then said: "Malice can be proved either by showing what the motive of the defendant was and that it was wrong, or by showing that the circumstances were such that the prosecution can only be accounted for by imputing some wrong or indirect motive to the prosecutor ( Brown v Hawkes (1891) 2 QB 718 at 722; approved by Kitto and Taylor JJ in Trobridge v Hardy above at 163, 174). In Brown v Hawkes (above) Cave J said:

[38]

Collateral abuse of process 18 The plaintiffs plead abuse of process. At paragraphs 76 to 97 of the ASC they plead counts of abuse of process in respect of certain apprehended violence orders sought against the first plaintiff. Paragraph 76 pleads the period from 18 November 1999 to 9 September 2001. The period covered by paragraphs 77 to 97 extends from 13 January to 29 May 2000. Paragraphs 77 to 81 plead a count of abuse of process in respect of an apprehended violence order sought on 13 January 2000 against the first defendant. Paragraphs 82 to 85 plead a count of abuse of process in respect of an apprehended violence order sought on 20 January 2000 against the first plaintiff on behalf of Michelle Savage, the first defendant, Kerry Savage, and Ellie Savage. Paragraphs 86 to 88 plead a count of abuse of process in respect of an apprehended violence order sought on 24 February 2000 by Sergeant Figgis. Paragraphs 89 to 92 plead a count of abuse of process in respect of an apprehended violence order sought on 7 March 2000 on behalf of the fifth defendant. Paragraphs 93 to 95 plead a count of abuse of process in respect of an apprehended violence order sought on 29 May 2000 on behalf of Stephen Collis, Sarah Annabelle Von Reyswood and Saxa Windsor Collis. 19 In alleging abuse of process the plaintiffs must show that in seeking the apprehended violence orders, the predominant purpose of the NSW Police was some other purpose than that for which such orders were designed. It is a heavy onus, which the party alleging abuse of process must displace (see William v Spautz (1991-1992) 174 CLR 509, joint judgment of Mason CJ, Dawson, Toohey and McHugh JJ at 529). 20 In Attorney General (NSW) v Spautz [2001] NSWSC 66, O'Keefe J [at 34] found that the proceedings in respect of which leave was sought by Dr Spautz constituted an abuse of process as they were "not for the genuine purpose of seeking redress on the causes of action advanced, but predominantly for collateral purposes". The collateral purpose for initiating the proceedings in Attorney General (NSW) v Spautz was on Dr Spautz's own admission, to force his former employer to settle or re-instate him to his previous position. 21 In Butler v Simmonds Crowley and Galvin [1999] QCA 475, McMurdo P, Pincus and Thomas JJA [at 24] relevantly summarised the elements required to succeed in an action for collateral abuse of process. They are: "[24] In order to succeed in an action for collateral abuse of process it is not necessary to allege or prove that the initial proceeding has terminated in favour of the plaintiff, or that there was no reasonable and probable cause for instituting the initial proceeding. It is however essential for a plaintiff to show that the defendant instituted proceedings for a purpose or to effect an object beyond that which the legal process offered. Such a purpose of the defendant in instituting the earlier proceedings is of crucial importance. It is not sufficient to assert that the proceedings were instituted with an improper motive. The ulterior objective needs to be identified, and it also needs to be able to be seen as the predominant purpose of those proceedings and as outweighing any legitimate purpose that they might otherwise have." 22 In discussing Williams v Spautz their Honours continued [at 32-33]: "[32] Brennan J, consistently with the view of the majority, observed: 'There is no impropriety of purpose (whatever may be said of motive) when a plaintiff commences or maintains a proceeding desiring to obtain a result within the scope of the remedy, even though the plaintiff has an ulterior purpose - or motive - which will be fulfilled in consequence of obtaining the legal remedy which the proceeding is intended to produce'.

[45]

Intentional infliction of emotional distress 28 Paragraphs 60 to 75 of the ASC plead a count of intentional infliction of "emotional distress" against the first and second defendants. It was submitted by the second defendant that this was not enough to establish this tort as there was only one incident where the second defendant allegedly yelled to the first plaintiff that he was "the fucking Corsican prick" with a sexual problem and should take some Valium. 29 The plaintiffs pleaded that as a result of the actions of the defendants, they suffered shock, nervous shock, acute stress, acute depression, acute anxiety, insomnia, are fearful for their lives and cannot undertake social, sporting, recreational, personal or other activities for fear that the first and second defendants will make further attempts to try and cause them harm or utilise the NSW Police to try to cause them harm. 30 The intentional infliction of emotional distress arises out of the decision of Wilkinson v Downton (1897) 2 QB 57 at 59 per Wright LJ, who held that the specific interest protected amounted to infringement of the plaintiff's legal right to personal safety. That is, the right to mental or emotional tranquillity and bodily dignity, a requirement which found acceptance in Bunyan v Jordan (1937) 57 CLR 1 at per Latham CJ at 10-11, Dulieu v White & Sons [1901] 2 KB 669 at 683 per Phillimore J, Purdy v Woznesensky [1937] 2 WWR 116 at 120 and has been expressly affirmed by the High Court in Northern Territory of Australia v Mengel (1995) 185 CLR 307 at 347 per Mason CJ, Dawson, Toohey, Gaudron and McHugh JJ recognising "Those torts which impose liability on private individuals for the intention infliction of harm." (See also Battista v Cooper (1976) 14 SASR 225 at 227 and Moran v Moran Nos 1, 2, 3, 6 and 9 (2000) ATR 81-554, 555, 556, 557 and 558). 31 In Bunyan v Jordan Latham CJ at page 10 held: "If a person deliberately does an act of a kind calculated to cause physical injury, for which there is no lawful justification or excuse and in fact causes physical injury to that other person he is liable in damages." 32 The plaintiff submitted that liability to a secondary victim is beyond doubt and referred to Wilkinson at 59, Johnson v The Commonwealth (1927) 27 SR (NSW) 133 at 137, Battista at 230 and 231, Fagan v The Crimes Compensation Tribunal (1982) 150 CLR 666 at 674 per Mason and Wilson JJ at 680-681, Stevenson v Basham [1922] NZLR 225 at 230, Bielitski v Obadiak (1922) 65 DLR 627 at 631-632 per Lamont JA and Turgeon JA at 633-634 and Pham v Lawson (1997) 68 SASR 124 at 147-148 per Lander J (with whom Bollen J agreed). This claim is adequately pleaded. 33 Overall I cannot say the claim is hopeless. Perhaps the ASC is not a perfect pleading but they rarely occur. Nor can I say that the ASC is not properly pleaded. The causes of action are adequately pleaded. Therefore the ASC should be permitted to go to trial. 34 However, the plaintiffs made two concessions to the third defendant prior to this motion being heard, namely that the counts of malicious prosecution can only be maintained by the plaintiff who was charged, not both plaintiffs and secondly, only the first plaintiff has verified the ASC. The second plaintiff must also verify the ASC. The plaintiffs' counsel submitted that this is a "minor matter". I do not regard it as minor. These amendments should be made and I grant leave to file a further amended statement of claim within 21 days. The notices of motions should be dismissed. 35 Costs are discretionary. As previously stated, the plaintiffs conceded that two amendments needed to be made well prior to the hearing. Those amendments could have been dealt with by consent if the third defendant agreed without resorting to a court hearing. The defendants were largely unsuccessful with their motions and they should bear the costs of the motions. However, the plaintiff should pay the costs thrown away by the amendments to the ASC. Orders

Clavel v Savage & 4 Ors

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