Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Citation : CUNNINGHAM -v- TRAYNOR [2016] WADC 168

Practice and procedure - Application for a partial stay - Turns on own facts

First Respondent : Mr M D Cuerden SC & Mr T J Porter

Second Respondent : Mr M D Cuerden SC & Mr T J Porter

Cunningham v Traynor [2016] WADC 168

Eastland Technology Australia Pty Ltd v Whisson [2003] WASCA 307; (2003) 28 WAR 308

Nigam Trading As S C Nigam & Co v Harm [2009] WASCA 209

Professional Services of Australia Pty Ltd v Computer Accounting and Tax Pty Ltd [2008] WASCA 222

Sino Iron Pty Ltd v Mineralogy Pty Ltd [2017] WASCA 24

Tradesman Technologies Pty Ltd v Ameduri [2012] WASCA 168

1 MURPHY JA: This matter concerns an application by the State of Western Australia (the State) for a partial stay, or alternatively a suspension order under s 15 of the Civil Judgments Enforcement Act 2004 (WA) (CJEA), in respect of certain orders of Davis DCJ made on 15 December 2016 requiring the State to pay certain money to the first and second respondents (Dr Cunningham and Ms Atoms, respectively) by way of a judgment sum.

2 Judge Davis delivered her reasons for the decision under appeal in this matter on 9 December 2016: Cunningham v Traynor[1] (primary decision). By that decision her Honour upheld various claims in tort by Dr Cunningham and Ms Atoms against certain members of the Western Australian police force and the State.

3 The State filed an appeal notice against the primary decision on 27 January 2017, naming Dr Cunningham and Ms Atoms, as well as the police officers, as respondents to the appeal. Dr Cunningham and Ms Atoms filed a notice of intention to take part in the appeal on 2 February 2017. The police officers filed a notice of intention on 6 February 2017. They indicated that they were also appealing against the primary decision. The State subsequently filed the present stay application on 3 March 2017, and an amended version of the application on 13 March 2017.

4 At the hearing of the stay application on 21 April 2017, I ordered an interim stay (effectively pending delivery of reasons herein) of that part of Davis DCJ's judgment on 15 December 2016 requiring the State to pay the amount of $883,331.70 (partial judgment sum). The State, at the hearing, gave an assurance that the balance of the judgment debt (less a sum to be withheld for Medicare) would be paid to Dr Cunningham and Ms Atoms.[2] An affidavit filed on behalf of the State on 27 April 2017 indicates that a sum of $211,602.34 has been paid to the solicitors for Dr Cunningham and Ms Atoms.

5 The following is a summary of the material facts as found by the primary judge.

6 As at 1 November 2008, Dr Cunningham and Ms Atoms were engaged, and had recently moved from New South Wales to Western Australia and were residing in the Fremantle area.[3] Dr Cunningham took up a position lecturing at the law school at the University of Western Australia, and Ms Atoms commenced study and work at Murdoch University. She had also recently been offered employment as a community engagement officer at the Water Corporation.[4]

7 On the night of 1 November 2008, Dr Cunningham and Ms Atoms rode their bicycles into the centre of Fremantle for dinner to celebrate Dr Cunningham's birthday and Ms Atoms' offer of employment. They each consumed one small bottle of beer at dinner.[5]

8 During the course of their meal, they arranged to meet a friend (Mr Hicks) afterwards at Little Creatures Brewery in Fremantle. While at Little Creatures, both Ms Atoms and Dr Cunningham had another beer.[6]

9 On 2 November 2008, just prior to 1.00 am, Dr Cunningham and Ms Atoms were walking back from Little Creatures Brewery with Mr Hicks to where they had parked their bicycles in order to go home. On their way, they noticed three young people (two men and one woman) sitting on the low wall of a garden bed which ran along the outside of the Esplanade Hotel in Essex Street. Relevantly, the Esplanade Hotel is located on the corner of Marine Terrace and Essex Street.[7]

10 Dr Cunningham and Ms Atoms observed one of the men fall backwards into the bushes in the garden bed. The other man went to help him but was either pulled or fell into the garden bed himself. The first man got out, but the second remained in the garden bed.[8]

11 Despite being strangers, Dr Cunningham and Ms Atoms stopped to help the group of young people. Ms Atoms initially stood on the footpath giving directions. Dr Cunningham, with the assistance of another person who arrived on the scene, tried to pull the man out of the garden bed. Ms Atoms assisted by grabbing his legs. Dr Cunningham, however, was then pushed into the garden bed by another male who subsequently went into the garden bed himself. At this time, Ms Atoms moved back to the footpath with Mr Hicks and stood there watching.[9]

12 Officers Traynor and Clark then arrived on the scene. Officer Traynor spoke to Ms Atoms. Officer Clark, after having attended to the other people, joined Ms Atoms and Officer Traynor.[10]

13 There was a dispute before the primary judge about what was discussed or said between Ms Atoms and the two police officers. It was alleged against Ms Atoms that she said, 'Haven't you got anything better to fucking do. Go and arrest some proper criminals [sic]'. It was alleged that these words, and the way they were said, constituted disorderly behaviour. Ms Atoms denied that she swore or said these words.[11]

14 The judge found that Ms Atoms did not use these words at the scene.[12] Rather, the judge found that Officer Traynor accused Ms Atoms of actually having been in the bushes. He first mentioned that she would have to pay for damage to the bushes and then told her that he had been watching her jump in and out of the bushes. Ms Atoms spoke up for herself and explained to Officer Traynor that she had been stopping to help and had not been in the bushes. She was not angry or aggressive when she spoke to Officer Traynor, but was calm and composed. Officer Traynor then said something to Ms Atoms about having to get out of Fremantle. Ms Atoms responded by telling Officer Traynor that she lived in Fremantle and did not understand. At this stage, the two officers had in mind to issue Ms Atoms a move on notice, motivated by the fact that she had spoken up and asserted her innocence, although they did not ask for her name and address to do so.[13]

15 Ms Atoms, not understanding what she was to do, tried to walk away from the officers. This served to irritate and annoy Officer Traynor further, who grabbed Ms Atoms by the arm. Ms Atoms told Officer Traynor that he was scaring her and she did not understand him because he was telling her to go, but not letting her leave. In response, Officer Traynor said something which reinforced to Ms Atoms that she needed to leave, and so she tried to leave again.[14]

16 Officer Traynor then aggressively and forcefully grabbed Ms Atoms a second time. Ms Atoms told Officer Traynor that he was hurting her and asked him to let her go. With this second grab, Ms Atoms was detained and was clearly not free to leave.[15]

17 During this time, Dr Cunningham had gotten out of the garden bed and walked up to the two officers and Ms Atoms.[16] He identified himself to Officer Traynor as a solicitor and said, 'I have one question. Is she subject to arrest or a move on order?'[17] CCTV footage showed that Dr Cunningham was turned around by Officer Traynor (who let go of Ms Atoms as he did so) and Officer Clark then took hold of both Dr Cunningham's arms and put them behind his back. Officers Traynor and Clark then pushed Dr Cunningham from the footpath onto the road on Essex Street.[18] Neither Officer Traynor nor Officer Clark answered Dr Cunningham's inquiry.[19]

18 What occurred on the road on Essex Street was not recorded on CCTV. It was not disputed, however, that Dr Cunningham was pushed towards where Officers Traynor and Clark had parked their police van. He had at least one handcuff on one of his arms, and was kicked with what was called a 'knee strike'.[20]

19 Ms Atoms followed Dr Cunningham as he was being pushed from the footpath and taken to the police van. There was an issue at first instance as to what she did as she followed. Her evidence was that she placed her hands on Dr Cunningham's back. Officer Clark's evidence was that she had grabbed hold of him (Officer Clark), 'jumped' on his back, and subsequently picked up the handcuffs he had dropped and threw them across the street.[21]

20 CCTV footage then showed that Officer Clark pushed Ms Atoms away.[22] Ms Atoms was significantly smaller than both officers. At the time of the incident, she was 5 foot 7 inches tall and weighed between 50 kg and 53 kg. Officer Traynor was 5 foot 11 inches tall, and weighed between 85 kg and 90 kg. Officer Clark was 5 foot 10 inches tall and weighed 73 kg.[23]

21 At 12.58 am, following unsuccessful attempts to get Dr Cunningham to go to ground, Officer Traynor made a call for assistance. Various officers responded, including Mr Caldwell. A few minutes later, Officer Traynor radioed again to say '[w]e have enough units here, you can cancel any further'.[24]

22 Upon his arrival at the scene in Essex Street, Mr Caldwell tasered Ms Atoms once and then Dr Cunningham once. Both Dr Cunningham and Ms Atoms dropped to the ground. Mr Caldwell had used the taser's 'drive stun mode', which involves physically placing the power handle against a person's body. This causes temporary uncontrollable contraction of the muscle tissue, resulting in physical incapacitation of the person.[25]

23 After the tasering, Dr Cunningham and Ms Atoms were handcuffed, picked up from the road surface and placed in the back of the police van. They were taken to the Fremantle Police Station where they were processed. Dr Cunningham was brought into the lock-up at 1.11 am. His handcuffs were removed and he was placed into a holding cell. Ms Atoms was brought in at 1.22 am.[26]

24 Both Ms Atoms and Dr Cunningham were charged with the offence of obstructing a public officer in the performance of the officer's functions contrary to s 172(2) of the Criminal Code (WA). They were charged at around 2.00 am, were granted bail shortly after and signed their bail papers at 2.08 am and 2.09 am.[27] The lock-up footage showed that Ms Atoms left the lock-up at 2.10 am, and Dr Cunningham left at 2.13 am.[28]

25 On the morning of 2 November 2008, Ms Atoms and Dr Cunningham attended the Fremantle Police Station to speak to the Sergeant in charge the night before (Sergeant Leahy) in an unsuccessful attempt to get the police to apologise and withdraw the charges.[29]

26 On 4 November 2008, Officer Traynor sent a draft of his witness statement to Officer Clark, and asked whether there was anything else he needed to add or whether there was anything he should take out. Also on 4 November 2008, Officer Clark prepared his own witness statement, a statement of material facts, and a prosecution brief which he sent to Sergeant Leahy. Each of the officers then witnessed each other's written statements, which bear the date 4 November 2008. Finally, a prosecution notice for Dr Cunningham and Ms Atoms was produced and dated 4 November 2008.[30] It followed that Officer Clark was the investigating officer who initiated and maintained the charges against Dr Cunningham and Ms Atoms.[31]

27 The trial of the criminal charges against Ms Atoms and Dr Cunningham was originally listed to take place on 20 July 2009, but it was adjourned because there were issues raised as to the adequacy of disclosure by the prosecution. The charges were eventually heard in the Magistrates Court on 29 April 2010 and dismissed.[32]

28 The circumstances of the hearing and dismissal of the charges, is that the prosecutor at the trial, who was not Officer Clark:[33]

(a) stated that he would call two witnesses, being Officers Clark and Traynor, and play the CCTV footage;

(b) agreed that the hearing would take about two days;

(c) called Officer Clark who gave evidence and was cross-examined;

(e) after the evidence of Officer Clark and the playing of the CCTV footage, elected not to call any further evidence in the case; and

(f) after counsel for Dr Cunningham and Ms Atoms had made a no case submission, made no submissions opposing the application.

29 Following this, the primary judge found, in effect, that the prosecution against Dr Cunningham and Ms Atoms collapsed.[34]

30 Over the years, Ms Atoms experienced mental and physical injuries, including symptoms of post-traumatic stress disorder (PTSD) and back pain, for which she saw a number of doctors and health professionals. Further, during this period, Ms Atoms sought to withdraw from her postgraduate studies and ceased to do work for Murdoch University.[35] Her employment at the Water Corporation was brought to an end in July 2010, due to unsatisfactory performance.[36] She subsequently acquired other work on a part-time basis and then a full-time basis.[37] However, in March 2013, she experienced a 'visceral flashback' of the event on 2 November 2008, where she felt her body spasm and, in particular, her lower back spasm.[38] She subsequently had an MRI and it was recorded that she had presented with acute left lumbar sciatica and that at L4/5, one of the lower lumbar disc levels, there was a disc protrusion and sequestration.[39] As a result of pain and medication, her capacity at work decreased and she was offered redundancy.[40] After being dismissed from another job in 2015, she started casual work as a cleaner for the body corporate of the residential property where she lives.[41]

31 Dr Cunningham similarly suffered from PTSD as a result of the events of 2 November 2008 and their sequelae.[42] He experienced some physical injuries, although they appear to have been relatively insignificant.[43]

32 Dr Cunningham and Ms Atoms commenced proceedings in the District Court against Officer Traynor, Officer Clark, Mr Caldwell and the State. They claimed damages for battery and misfeasance in public office from Officer Traynor, Officer Clark and Mr Caldwell. They also claimed damages against Officer Clark for malicious prosecution of the criminal charges. Their claim against the State was for damages for battery and false imprisonment.[44]

33 Officer Traynor, Officer Clark, Mr Caldwell and the State all denied liability, and claimed that all police officers acted lawfully and fairly. Officer Clark also counterclaimed for damages on the basis of two alleged assaults and battery by Ms Atoms on him,[45] for grabbing his arm and for 'jumping' on his back.[46]

34 The primary judge found in favour of Dr Cunningham and Ms Atoms, and dismissed Officer Clark's counterclaim.

35 Her Honour found that Ms Atoms' detention or restraint by Officer Traynor was unlawful.[47] Ms Atoms did not commit any offence in trying to help the man in the bushes. She was not intoxicated. She was not screaming or shouting, and she was not swearing.[48] She did nothing which would constitute a breach of the peace or disorderly behaviour which entitled police to issue a move on notice.[49] Her Honour said:[50]

(a) At no stage were there reasonable grounds for a suspicion that Ms Atoms had committed a breach of the peace, or the offence of disorderly conduct, or was hindering or obstructing either of these officers. In other words there are no facts sufficient to induce that state of mind in a reasonable person.

(b) There were no reasonable grounds for giving Ms Atoms a move on notice or telling her that she would be getting an order to move on.

(c) Neither Officer Traynor nor Officer Clark had any reasonable grounds for asking for Ms Atoms' name and personal details in respect of the subject matter of the planned move on notice (ie saying the words). It has not been said that she was a candidate for a move on notice in respect of the incident in the garden bed.

(d) Officer Traynor had no lawful reason to touch, grab or detain Ms Atoms.

36 The primary judge also found that Officers Clark and Traynor had no reasonable grounds to exercise their powers of arrest against Dr Cunningham.[51] In any event, as her Honour had found that the two officers had no lawful basis to detain Ms Atoms, an offence by Dr Cunningham against s 172 of the Criminal Code could not be made out.[52] Further, in circumstances where Dr Cunningham was not violent or resisting, her Honour found that the manner of Dr Cunningham's arrest and Officer Traynor's and Officer Clark's subsequent treatment of him was unnecessary and involved the use of excessive force.[53]

37 The primary judge, in effect, rejected Officer Clark's evidence in support of his counterclaim.[54] Her Honour was not satisfied that Ms Atoms pulled on Officer Clark's arm, and she was positively satisfied that, after he pushed her, Ms Atoms did not come back and grab him.[55]

38 The judge found that there was no justification for tasering Ms Atoms. She concluded that Mr Caldwell formed the view that the use of a taser was necessary, without any proper assessment of the situation. He did not have any reasonable grounds for his stated belief that his officer's safety was at risk.[56]

39 Following the above findings, the judge found that Ms Atoms' arrest which followed was not lawful.[57]

40 The judge found that there was no justification for tasering Dr Cunningham.[58] Mr Caldwell undertook no assessment of the situation and did not believe that either Officer Traynor's or Officer Clark's safety was at risk.[59]

41 Her Honour found, in each case, that the handling of Dr Cunningham and Ms Atoms after they were tasered constituted a battery for which there was no justification and for which the State was liable.[60]

42 Her Honour found that, following the above findings, the imprisonment of Ms Atoms and Dr Cunningham was neither lawful nor justified. She said that they should never have been detained, arrested or tasered, and that they should never have been charged.[61]

43 The judge then proceeded to consider whether any of the conduct of Officer Traynor, Officer Clark or Mr Caldwell was malicious. Her Honour said that this inquiry related to Dr Cunningham's and Ms Atoms' claims against the individual officers for battery and misfeasance in public office. Her Honour said, in effect, that if malice were found, the State would not be liable for the battery.[62] Her Honour found, in effect, that:

1. Officer Traynor acted with malice when he grabbed Ms Atoms, particularly on the second occasion;[63]
2. Officers Traynor and Clark acted with malice when arresting and dealing with Dr Cunningham;[64] and
3. Mr Caldwell acted with malice when he tasered both Ms Atoms and Dr Cunningham.[65]

44 Her Honour further found that, in all the circumstances, Officer Clark acted maliciously in initiating and maintaining the criminal charges against Dr Cunningham and Ms Atoms, and that he did not honestly believe the case which he instituted and maintained. Her Honour said that the prosecution against Dr Cunningham and Ms Atoms was not brought from a genuine desire to serve the ends of justice, and that the bringing and maintaining of the charges could not be satisfactorily explained other than by the fact that Officer Clark was solely or predominantly actuated by an indirect or improper motive.[66]

45 Her Honour concluded on liability by noting the respective claims on which Dr Cunningham and Ms Atoms succeeded. Her Honour said with respect to Dr Cunningham:[67]

Dr Cunningham succeeds in his claim:

(a) against both Officer Traynor and Officer Clark for battery (as misfeasance in public office and thus malice has been proved) in relation to these officers grabbing his arms and pulling them behind his back causing him pain, pushing him towards Essex Street while simultaneously holding his arms bent up his back causing him pain, handcuffing him, the knee strikes, and pushing him up against the police van;

(b) against Mr Caldwell for the tasering (because misfeasance in public office malice [sic] has been proved);

(c) against the State for battery for his handling after the tasering and placement in the police van;

(d) against the State for false imprisonment for the whole of the period from the time when he was first taken hold of by Officers Clark and Traynor on the footpath in Essex Street until his release on bail; and

(e) against Officer Clark for malicious prosecution. (emphasis added)

46 Her Honour said with respect to Ms Atoms:[68]

Ms Atoms succeeds in her claim:

(a) against Officer Traynor for battery in relation to his grabbing of her on the footpath (as misfeasance in public office and thus malice has been proved);

(b) against the State for the battery by Officer Clark when he pushed her away;

(c) against Mr Caldwell for the tasering (as misfeasance in public office and thus malice has been proved);

(d) against the State for the way she was handled and placed into the police van after her tasering;

(e) against the State for false imprisonment for the two periods from the time when she was grabbed for the second time by Officer Traynor to when he let her go, and later after her tasering, until she was released on bail; and

(f) against Officer Clark for malicious prosecution. (emphasis added)

47 As to causation, the judge found, in effect, that all of the conduct by the police officers 'starting from the time Officers Clark and Traynor first laid hands on [Dr Cunningham] until the dismissal of the criminal charge against him' materially contributed to his psychiatric injuries.[69] As to Ms Atoms, the judge found that the pushing and pulling by Officer Clark, the tasering by Mr Caldwell, and her handling by unknown police officers, combined to materially contribute to a back injury that she suffered,[70] and that her psychiatric injury was caused by Officer Clark's battery, her tasering by Mr Caldwell, 'and all of the torts against Ms Atoms which followed, including the malicious prosecution'.[71]

48 Her Honour assessed Ms Atoms' damages at $1,024,822.11,[72] and Dr Cunningham's damages at $110,304.10.[73]

49 Her Honour also made certain findings as to apportioning damages between the torts and the defendants.[74] In relation to that matter, her Honour said:[75]

However, it does seem to me that I do need to make a separate determination of the damages for each tort, because of the provisions of s 137 of the Police Act and the submissions made to me (ts 1567 to 1569) that if one of the first three defendants [Traynor, Clark or Caldwell] was found to have engaged in battery and misfeasance in public office because of a finding of malice, the State's position is, although not pleaded, that judgment should not be entered against the State because of the existence of malice.

50 Her Honour delivered reasons on 9 December 2016.

51 Following the delivery of reasons on 9 December 2016, there was a debate between the parties as to the appropriate final orders. That debate was adjourned to 15 December 2016.

52 Relevantly for present purposes, the State's position was that, having regard to the apportionment process undertaken by the primary judge in her reasons, in the case of Dr Cunningham, he should be awarded damages against the State in the sum of $36,558.17, based (in general terms) on a 36.67% contribution to Dr Cunningham's damages in respect of the battery after tasering and false imprisonment.[76] In relation to Ms Atoms, the State's position was that she should be awarded damages against the State in the sum of $675,783.37, based (in general terms) on an approximate 66% - 67% contribution to Ms Atoms' damages in respect of Officer Clark's battery, the battery after tasering, and the false imprisonment.[77] The State's proposed orders were set out in a minute of proposed orders dated 12 December 2016.

53 At the hearing on 15 December 2016, the judge rejected the State's approach to apportionment. In extempore oral reasons, her Honour said that certain authorities referred to by counsel for Dr Cunningham and Ms Atoms had not been drawn to her attention when she had prepared her written reasons, and said:[78]

These authorities ... were not referred to me during the course of the trial and this was not a matter drawn to my attention during the trial; I proceeded on the basis of what counsel had advised me at - which I recorded at paragraph 836 of my reasons for judgment.

It seems to me that this is not the correct legal position. I would be making a fundamental error if I entered judgment separately against each of the defendants as suggested to me by the State. In particular, I do not consider that in entering one judgment against all defendants as suggested in the plaintiff's minutes that this offends either section 137 or 138 of the Police Act.

I accept what is set out in paragraphs 14 to 16 of the plaintiffs' written submissions. In my view, the plaintiffs are entitled to judgment against all the defendants. The apportionment that I have made is a matter of contribution between the defendants so the defendants can deal between themselves as to the appropriate apportionment.

I don't propose to apportion the costs for two reasons.

Firstly, the reasons I've already given about making separate judgments against each of the defendants and secondly, the issue of costs is, in my view, quite a different matter and I need to take into account the way this matter was run at trial and it was really a joint offensive, if I can call it that, against the plaintiffs by the defendants.

There was much cooperation between them and the - for example, the matter - the State dealt with all matters of damages and there was - and spoke for all defendants in relation to damages. So it's, in my view, appropriate that there be no apportionment of costs.

55 The final orders made by her Honour were in the following terms:

1. There be judgment for [Dr Cunningham] against:

(a) [Officer Traynor, Officer Clark, Mr Caldwell and the State (collectively the defendants)] in the sum of $99,704.10;

(b) [Officer Traynor, Officer Clark and Mr Caldwell] in the further sum of $10,000 by way of exemplary damages; and

(c) [Officer Clark] in the further sum of $600.

(a) all defendants in the sum of $20,000;

(b) [Officer Traynor] in the further sum of $1,000;

(c) [Officer Clark, Mr Caldwell and the State] in the further sum of $993,822.11; and

(d) [Officer Traynor, Officer Clark and Mr Caldwell] in the further sum of $10,000 by way of exemplary damages.

1. [Officer Clark's] counterclaim is dismissed.
2. The defendants pay [Dr Cunningham's and Ms Atoms'] costs of the action to be taxed if not agreed, such costs to be taxed as one set of costs for which the defendants are to be jointly and severally liable.

The grounds of appeal and the State's case on the appeal

56 The appellant's case contains seven grounds of appeal. The sole focus of the appeal is on s 137 of the Police Act 1892 (WA), which provides:

(a) is in addition to section 5 of the Criminal Code Act 1913; and

(b) does not affect any right to recover damages from the owner or driver of a motor vehicle in respect of the death of or bodily injury to a person directly caused by, or by the driving of, the motor vehicle,

but otherwise applies despite any other written law.

(2) This section applies to and in respect of anything done after the commencement of the Acts Amendment (Police Immunity) Act 1999.

(3) An action in tort does not lie against a member of the Police Force for anything that the member has done, 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.

(4) An action in tort does not lie against a person for anything that the person has done, 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.

(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.

(6) The Crown's liability under subsection (5) does not extend to exemplary or punitive damages.

(7) If a person to whom subsection (3) or (4) applies does not cooperate fully with the Crown in the defence of an action in tort against the Crown in respect of anything done by the person, the Crown may recover from the person the Crown's costs of defending the action and any damages and costs awarded against the Crown in the action.

(8) For the purposes of subsection (7), a person does not cooperate fully with the Crown if the person refuses -

(a) to answer any question, including a question the answer to which is or may be self-incriminating; or

(b) to produce any object or recorded information in the person's possession or control,

(9) If a person, in cooperating with the Crown in the defence of an action referred to in subsection (8), gives an answer that is or may be self-incriminating, the answer is not admissible in any criminal or disciplinary proceedings against the person except proceedings for a criminal or disciplinary offence arising from the giving of a false answer. (emphasis added) (footnotes omitted)

57 The State relies on s 137(5) of the Police Act, and challenges the judge's findings of joint liability to pay compensatory and/or aggravated damages in circumstances where it is alleged that her Honour also made findings of malice. Grounds 1, 2 and 3 relate to Dr Cunningham. These grounds are to the following effect:

1. Ground one alleges that, contrary to s 137(5) of the Police Act, the judge erred in law in holding the State jointly liable with Officer Traynor, Officer Clark and Mr Caldwell to pay compensatory damages, after having found that Officer Traynor acted with malice against Dr Cunningham in committing:

(b) the first act of false imprisonment with Officer Clark.

1. Ground two alleges that, contrary to s 137(5) of the Police Act, the judge erred in law in holding the State jointly liable with Officer Traynor, Officer Clark and Mr Caldwell to pay compensatory damages after having found that Officer Clark acted with malice against Dr Cunningham in committing:

(c) the first act of false imprisonment with Officer Traynor.

1. Ground three alleges that, contrary to s 137(5) of the Police Act, the judge erred in law in holding the State jointly liable with Officer Traynor, Officer Clark and Mr Caldwell to pay compensatory damages after having found that Mr Caldwell acted with malice against Dr Cunningham in committing the tort of misfeasance in public office.

58 Grounds 4, 5 and 6 relate to Ms Atoms. These grounds are to the following effect:

1. Ground four alleges that, contrary to s 137(5) of the Police Act, the judge erred in law in holding the State jointly liable:

(a) with Officer Clark and Mr Caldwell to pay compensatory damages; and

(b) with Officer Traynor, Officer Clark and Mr Caldwell to pay aggravated damages,

after having found that Officer Traynor acted with malice against Ms Atoms in committing the tort of misfeasance in public office and the first act of false imprisonment.

1. Ground five alleges that, contrary to s 137(5) of the Police Act, the judge erred in law in holding the State jointly liable:

(a) with Officer Clark and Mr Caldwell to pay compensatory damages; and

(b) with Officer Traynor, Officer Clark and Mr Caldwell to pay aggravated damages,

after having found that Officer Clark acted with malice against Ms Atoms in committing the tort of malicious prosecution and the tort of battery.

1. Ground six alleges that, contrary to s 137(5) of the Police Act, the judge erred in law in holding the State jointly liable:

(a) with Officer Clark and Mr Caldwell to pay compensatory damages; and

(b) with Officer Traynor, Officer Clark and Mr Caldwell to pay aggravated damages,

after having found that Mr Caldwell acted with malice against Ms Atoms in committing the tort of misfeasance in public office.

59 Ground 7 relates to costs. Ground 7 is to the following effect:

1. The judge erred in law in holding the State jointly and severally liable with Officer Traynor, Officer Clark and Mr Caldwell for Dr Cunningham's and Ms Atoms' entire costs of the action when the State was not liable for the malicious acts of Officer Traynor, Officer Clark and Mr Caldwell pursuant to s 137(5) of the Police Act.

60 The State says, in effect, that on its proper construction, the effect of s 137(5) of the Police Act is that the State is only 'answerable for damage caused by' torts committed by police officers, without malice or corruption, in the performance of their functions as a member of the Police Force.[79] Further, while the State accepts that itself, Officer Traynor, Officer Clark and Mr Caldwell are several and concurrent tortfeasors, it says that the general principle of solidary liability must give way to s 137(5) of the Police Act. That is, s 137(5) operates to make the State liable only for the proportion of damage caused by acts done without corruption or malice. As a result, where police officers have acted with malice, s 137(5) requires that damage caused by acts done with malice be apportioned from damage caused by acts done without malice, and a separate judgment should be given against the State in the apportioned sum.[80]

61 In the present case, the State says that the primary judge made findings of fact that Officer Traynor, Officer Clark and Mr Caldwell acted with malice as follows:[81]

1. When Officer Traynor grabbed Ms Atoms.[82]
2. When Officer Traynor and Officer Clark took hold of Dr Cunningham.[83]
3. When Mr Caldwell tasered each of Dr Cunningham and Ms Atoms.[84]
4. When Officer Clark pushed Ms Atoms.[85]
5. When Officer Clark launched prosecution of the criminal charges against Dr Cunningham and Ms Atoms 'on obviously insufficient material'.[86]

62 It is then alleged, in effect, in relation to grounds 1 - 6 generally, that her Honour erred in failing to apply or properly apply s 137 of the Police Act on its proper construction, and in failing thereby to give separate judgment against the State for apportioned damages caused by the torts of Officer Traynor, Officer Clark and Mr Caldwell which were not done with malice.[87]

63 In relation in particular to grounds 1(b) and 2(c), the State says that it cannot be made liable for damages for false imprisonment because the false imprisonment itself was a tort that 'results from' (within the meaning of s 137(5)) the torts committed by Officers Traynor and Clark with malice.[88] A similar submission is made with respect to ground 4 in relation to the false imprisonment of Ms Atoms.[89]

64 In relation to ground 5(b), the State alleges that the judge found, in effect, that Officer Clark acted with malice throughout his dealings with Ms Atoms, including when he pushed Ms Atoms. It is said that the fact that Officer Clark acted with malice when he pushed Ms Atoms prevents the application of s 137(5) of the Police Act, and that the State cannot be held liable for the damages arising from that malicious act.[90]

65 Finally, in respect of ground 7, the State says that if the court finds the judge erred in relation to any of the previous grounds, it follows that her Honour also erred in law in holding the State jointly and severally liable with Officer Traynor, Officer Clark and Mr Caldwell for Dr Cunningham's and Ms Atoms' costs of the action.[91] Reference is also made to O 66 r 2(e) of the Rules of the Supreme Court 1971 (WA).[92]

66 In the 'orders wanted', the State seeks substitutive orders in lieu of the orders made by Davis DCJ in terms including:[93]

1. There be judgment for [Dr Cunningham] against:

(a) [Officer Traynor] in the sum of $25,678.08

(b) [Officer Clark] in the sum of $62, 961.06

(c) [Mr Caldwell] in the sum of $18,341.49

(d) the [State] in the sum of $3,323.47

(a) [Officer Traynor] in the sum of $226,112.88;

(b) [Officer Clark] in the sum of $342,136.97;

(c) [Mr Caldwell] in the sum of $229,701.23;

(d) the [State] in the sum of $226,871.04

1. [Officer Clark's] counterclaim is dismissed.
2. The defendants pay the plaintiffs' costs of the action to be taxed if not agreed, such costs to be taxed as one set of costs and to be apportioned as follows:

(a) 22.18% payable by [Officer Traynor];

(b) 35.69% payable by [Officer Clark];

(c) 21.85% payable by [Mr Caldwell];

(d) 20.28% payable by the [State].

67 The State relied on the affidavits of Kah Yee Loh dated 2 March and 22 March 2017. Dr Cunningham and Ms Atoms relied on affidavits sworn by Mr Gleeson (their solicitor) dated 22 March and 19 April 2017.

68 In Mr Gleeson's first affidavit, he annexes invoices from senior and junior counsel for Dr Cunningham and Ms Atoms issued after the delivery of reasons for judgment. He also annexes invoices for disbursements. He does not annex an invoice for his firm's fees, but estimates them to be in the range of $330,000 to $360,000 inclusive of GST and a 25% uplift fee.[94] The effect of the evidence is that the solicitor/client legal costs for Dr Cunningham and Ms Atoms will be in the order of at least (approximately) $900,000. In his second affidavit, he annexes a draft bill of costs prepared by Coulson Legal for assessment purposes. The draft bill, including counsel's fees, estimates total assessed costs in the sum of (approximately) $785,000. In oral submissions, senior counsel for Dr Cunningham and Ms Atoms also informed the court that the solicitors and counsel had acted in the matter on the basis that 'the costs were not going to be paid unless [Dr Cunningham and Ms Atoms] succeeded'.[95]

69 The State, in effect, makes three principal submissions in support of its application for a partial stay.

70 First, the State submits that the financial circumstances of Dr Cunningham and Ms Atoms give rise to a real risk that they will not have the capacity to repay the judgment sum if the appeal were to succeed. In this regard, the State refers to a statement in a newspaper article dated 1 February 2017 in which it was reported:[96]

Outside court on the day of Judge Felicity Davis' decision in December, [Dr Cunningham and Ms Atoms] told The West Australian that they would have been forced into bankruptcy if they had lost the case.

71 The State says that Dr Cunningham and Ms Atoms have not included any material in the affidavit sworn by Mr Gleeson on 22 March 2017 that refutes this statement or the State's concern about their financial circumstances. Further, Dr Cunningham and Ms Atoms have refused to accept a proposal to have the judgment sum paid into their solicitors' trust account on an undertaking that the funds would be held on trust pending determination of the appeal. In these circumstances, the State says, in effect, that there is a risk that the judgment sum will not be repaid if they were to succeed on the appeal and therefore the appeal will be rendered nugatory if a partial stay were not granted.[97]

72 Second, the State says that, in circumstances where it only seeks a partial stay of execution of the judgment sum and is willing to pay a portion which contributes to Dr Cunningham's and Ms Atoms' taxed legal expenses, the balance of convenience favours the grant of the partial stay or suspension order.[98]

73 Finally, in reliance on its appellant's case, the State says that it is open to the court to form the view that the appeal has reasonable prospects of success.[99]

74 Dr Cunningham and Ms Atoms resist the stay application on two principal bases. The first is that the stay/suspension order sought is not necessary to preserve the subject matter of the litigation, and the second is that, in any event, discretionary considerations favour the dismissal of the application.[100]

75 As to the first, they say that a partial stay is not necessary to preserve the subject matter of the litigation for the following reasons. They submit that, even if the State succeeds on all or any of grounds 1 - 6 of the grounds of appeal, it will continue to be liable for Dr Cunningham's and Ms Atoms' costs of the primary proceeding, which they estimate to be more than $700,000. Any amount which the State might otherwise be entitled to recover from Dr Cunningham and Ms Atoms following a successful appeal will be able to be applied towards the State's liability for their costs. Accordingly, it is submitted, there is no issue of the State being unable to recover monies paid to Dr Cunningham and Ms Atoms.[101]

76 Further, it is submitted that s 138 of the Police Act is relevant to the question of whether the appeal may be rendered nugatory. Section 138 provides, relevantly, that a person (claimant) who has been awarded damages in tort against a member of the police force (defendant) for anything that the member has done maliciously or corruptly while performing or purporting to perform their functions as a member of the police force, may request the Treasurer to pay the damages awarded to the claimant (other than exemplary or punitive damages) and any costs ordered to be paid to the claimant. The Treasurer may pay the claimant some or all of the damages and costs if satisfied that, amongst other things, the claimant is unlikely to recover them from the defendant. Dr Cunningham and Ms Atoms contend that s 138 militates against any finding that the appeal would be rendered nugatory, because, by reason of that section, it cannot be said that success by the State in the appeal would necessarily mean that the State would not ultimately bear the damages awarded to Dr Cunningham and Ms Atoms.[102]

77 Secondly, Dr Cunningham and Ms Atoms say that there are three discretionary considerations which are against the State's application. They are, in effect, as follows:

(a) To the extent that the State's appeal might be said to have reasonable prospects of success, it nevertheless cannot be said that it has strong prospects of success, particularly grounds 1(b), 2(c), 4(b) and 5(b).[103]

(b) Despite the fact that the State has always accepted liability for at least part of the judgment, it has failed to pay any part of the judgment and that is evidence of 'high-handed' conduct.[104]

(c) Officer Traynor, Officer Clark and Mr Caldwell have commenced an appeal against the primary decision which, if at all successful, would impact upon the State's liability, and in these circumstances it is likely that the determination of both appeals (which will inevitably be heard together) will take some considerable time.[105]

78 In relation to prospects of success on the appeal, senior counsel for Dr Cunningham and Ms Atoms made a number of further points in oral submissions.

79 First, it was submitted that the apportionment process was not necessary. Rather, it was submitted that in circumstances where a claimant succeeds on causes of action involving a tort committed without malice and a tort committed with malice, and where both torts have materially contributed to the injury suffered, the claimant will get all damages flowing from the second cause of action irrespective of what happens to the first under s 137(5) of the Police Act.[106]

80 Secondly, it was submitted that, to the extent that the State's appeal has reasonable prospects of success, it is limited to the figures set out in its minute of proposed orders dated 12 December 2016, where, counsel says, the State accepted liability for approximately $712,000.[107] In this regard, it was submitted that the further reduction of the State's accepted liability to approximately $212,000 is based on propositions that did not emerge from the primary decision, but are premised on findings that the State says her Honour ought to have made and which had not been agitated below.[108] Counsel submitted that, at the very best, the State could only get a stay for the difference between the judgment sum and the State's initially-accepted liability of $712,000.[109]

81 The principles to be applied on an application for a partial stay, or alternatively a suspension order under s 15 of the CJEA, are well-established.[110] For present purposes they may be sufficiently stated as follows:

1. The successful litigant is ordinarily entitled to enforce a judgment pending the determination of any appeal.
2. The applicant for a stay must move the court to make a favourable exercise of its discretion. Under s 15(3) of the CJEA, this court may only make a suspension order if there are 'special circumstances' that justify doing so, and in an application for a stay under the Rules this is also a usual requirement.
3. The central issue will be whether the grant of a stay is perceived to be necessary to preserve the subject matter or integrity of the litigation, or whether a refusal of a stay could create practical difficulties in respect of the relief that may be granted on appeal. That is, the court must consider whether the right of appeal will be rendered nugatory if a stay is not granted.
4. Even if it can be demonstrated that the right of appeal will be rendered nugatory if a stay is not granted, a stay will still generally be refused unless it can be established that the appeal has ultimately reasonable prospects of success.
5. Finally, a stay may still be refused where it appears that the balance of convenience does not lie in favour of the applicant.

82 In general terms, in relation to the third of those matters, the applicant for a stay must establish that there is at least a real risk that, if the stay is not granted and the judgment sum is paid, the appellant will be unable to recover the money if the appeal is allowed.[111]

83 In this case, the State, unusually, has not adduced any evidence of searches undertaken with respect to the respondents' assets in relation to, for example, real property. Nevertheless, that is not a point taken by or remarked upon by Dr Cunningham and Ms Atoms in their written submissions in resistance of the stay application. Nor did their written submissions address or refer to the statement attributed to them in the newspaper article. At the hearing, in oral submissions, brief reference was made by their counsel to the statement attributed to them in the newspaper article. The submission was to the effect that there are not many individuals who could say anything different about being forced into bankruptcy at the end of an 18-day trial if they had recovered nothing and been saddled with adverse costs orders.[112]

84 The inference is open, on the evidence before me, which I am prepared to draw in all the particular circumstances of this case, that if a stay were not granted, Dr Cunningham and Ms Atoms would likely apply the partial judgment sum as a payment towards their costs of around $900,000, and that there is a real risk that the partial judgment sum would be irrecoverable if the State succeeded in the appeal.

85 Dr Cunningham and Ms Atoms nevertheless say that this does not mean that the appeal would be rendered nugatory if the stay were not granted. They contend, in effect, that the order for costs of the primary proceedings will inevitably remain undisturbed on the appeal, because:

(a) even if the State succeeded on grounds 1 to 6, there would still be a judgment in favour of Dr Cunningham in the sum of $3,323.47 and in favour of Ms Atoms in the sum of $226,871.04 and, in that event, the costs of the primary proceedings would still follow the event;

(b) ground 7, which deals with the costs order with reference to s 137(5) of the Police Act, has no reasonable prospects of success; and

(c) in any event, the primary judge provided two grounds for the costs orders she made, only one of which related to the potential application of s 137(5) of the Police Act.[113]

86 In response, the State contends, in effect, that the success of ground 7 will largely be dependent upon grounds 1 - 6, and those grounds have reasonable prospects of success. The State also submits, in effect, that until costs are agreed or assessed, it is speculative to conclude that they will be in the order of the amount alleged in this application. The State further submits that, in any event, it is not seeking a stay of the costs orders.[114]

87 It appears that s 137 of the Police Act has not been authoritatively determined in this jurisdiction. The State points to authorities in other jurisdictions which it says supports its case. Dr Cunningham and Ms Atoms say, in effect, that those authorities do not support the State's case. Having considered the appellant's case and the respondents' answer, albeit in a necessarily limited way for present purposes, and all the submissions in this application, I accept that the State's grounds 1 - 6 have reasonable prospects of success in the relevant sense in this context.

88 As to ground 7, I do not see, at least at this stage, how O 66 r 2(e) of the Rules of the Supreme Court could assist the State. Nevertheless, I accept that it is at least reasonably arguable that the success on ground 7 will largely be dependent on any success on grounds 1 - 6. Even insofar as the judge had an additional ground for making the costs orders that she did, if the State succeeds on grounds 1 - 7, any residual capacity for the costs orders to be sustained on that other ground, would, at least reasonably arguably, need to be assessed in light of the State's (assumed) success otherwise on the appeal. Further, I accept the State's submission that the stay application does not relate to the costs orders. In the event that costs of the primary proceedings are agreed or assessed before the determination of the appeal, there will be an ascertained amount payable to Dr Cunningham and Ms Atoms in respect of costs. At that point in time, the State will be obliged to pay such amount, unless it seeks a stay in that regard. That, however, is a matter for another day.

89 Insofar as Dr Cunningham and Ms Atoms contend that the construction and application of s 137(5) of the Police Act, as contended for in the appeal, was not pleaded or raised before the primary judge, the State says that it was not required to plead matters of law, and, in any event, s 137 of the Police Act was referred to the primary judge in submissions.[115] For the purposes of this application, I accept that the State has a reasonably arguable case that, even if the matter were not raised in the terms now put in the appeal, it is purely a point of law which may be agitated in the appeal. Also, I consider that it is at least reasonably arguable that the State is not somehow bound by the apportionment proposed in its minute before the primary judge dated 12 December 2016, where that minute reflected, it appears, a view of s 137(5) of the Police Act which is more limited in scope than the case proposed to be advanced on appeal.

90 Also, although Dr Cunningham and Ms Atoms may seek to avail themselves of s 138 of the Police Act in due course, that prospect appears to me to be too remote and too contingent, on the evidence before me, to be given any significant weight on the question of whether the appeal may be rendered nugatory if a stay is not granted.

91 There was no evidence to the effect that if a stay of the partial judgment sum were ordered, Dr Cunningham or Ms Atoms would not be in a position to properly resist the appeal. There is no doubting the State's capacity to pay if the appeal fails.

92 The above considerations point in favour of the grant of a stay. Whilst the State had not paid the undisputed judgment amount (on its case) as at the hearing of this application, I was given an assurance that it would do so. That has now been done. I do not regard the earlier non-payment by the State, at a time when it was seeking to explore the prospect of payment into the solicitors' trust account and, subsequently, seeking information as to Medicare and other matters relevant to the payment, as 'high-handed' conduct.

93 The possibility that this appeal will be delayed in its resolution if, as might be the case, it is determined in conjunction with a separate appeal by the police officers and that appeal is the subject of delay, is a factor tending against the grant of a stay. Nevertheless, I am not persuaded that that tilts the balance in favour of refusing a stay. The appropriate applications may be made if the rules and orders of the court are not complied with.

94 In all the circumstances of the case it appears to me that it is in the interests of justice to grant a stay in respect of the partial judgment sum pending determination of the appeal or further order.

[1] Cunningham v Traynor [2016] WADC 168.

[13] Primary decision [461] - [467], [473] - [474], [485].

[14] Primary decision [28], [475] - [477].

[15] Primary decision [478] - [480].

[24] Primary decision [42] - [43], [583].

[25] Primary decision [44] - [45], [654], [669], [741] - [742].

[30] Primary decision [66] - [68], [70].

[31] Primary decision [2], [789], [791].

[35] Primary decision [938], [950].

[37] Primary decision [964], [977], [990].

[41] Primary decision [1034] - [1035].

[46] Primary decision [1153] - [1154].

[53] Primary decision [576], [581] - [582], [585] - [586].

[54] Primary decision [68] - [69], [588] - [590], [662], [1150].

[56] Primary decision [680] - [681], [685] - [686].

[61] Primary decision [746] - [747].

[63] Primary decision [762] - [763].

[64] Primary decision [770] - [771].

[69] Primary decision [906] - [907].

[72] Primary decision [1148] - [1149].

[74] See, for example, primary decision [910], [913], [922] - [923], [1073], [1077], [1101].

[76] Annexure 'PAG 7' to Mr Gleeson's affidavit of 22 March 2017, at page 35 - 'schedule of explanation to fourth defendant's minute of proposed orders'.

[77] Annexure 'PAG 7' to Mr Gleeson's affidavit of 22 March 2017, at page 37 - 'schedule of explanation to fourth defendant's minute of proposed orders'.

[78] Annexure 'PAG 8' to Mr Gleeson's affidavit of 22 March 2017, page 53 - 'transcript of proceedings from 15 December 2016'.

[79] Appellant's case, submissions, pars 34, 42, 45.

[80] Appellant's case, submissions, pars 49, 68, 71.

[81] Appellant's case, submissions, par 7.

[82] Citing primary decision [762] - [763].

[87] Appellant's case, submissions, pars 74 - 82.

[88] Appellant's case, submissions, pars 110 - 117.

[89] Appellant's case, submissions, pars 120 - 123.

[90] Appellant's case, submissions, pars 124 - 131.

[91] Appellant's case, submissions, par 132.

[92] Appellant's case, submissions, pars 134 - 136.

[93] Appellant's case, minute of substituted orders.

[94] Mr Gleeson's affidavit of 22 March 2017, pars 5 - 8.

[96] Affidavit of Kah Yee Loh sworn 2 March 2017, annexure 'KYL5'.

[97] Appellant's submissions in support of application, pars 5 - 10.

[98] Appellant's submissions in support of application, par 21.

[99] Appellant's submissions in support of application, pars 12, 16.

[100] Appellant's submissions in support of application, par 1.

[101] First and second respondents' submissions in opposition to application, pars 7 - 11; appeal ts 32 - 33.

[102] First and second respondents' submissions in opposition to application, pars 12 - 15.

[103] First and second respondents' submissions in opposition to application, par 17.

[104] First and second respondents' submissions in opposition to application, pars 18 - 20.

[105] First and second respondents' submissions in opposition to application, pars 21 - 24.

[110] Eastland Technology Australia Pty Ltd v Whisson [2003] WASCA 307; (2003) 28 WAR 308 [9]; Tradesman Technologies Pty Ltd v Ameduri [2012] WASCA 168 [21] - [22].

[111] Professional Services of Australia Pty Ltd v Computer Accounting and Tax Pty Ltd [2008] WASCA 222 [22]; Nigam Trading As S C Nigam & Co v Harm [2009] WASCA 209 [8]; Sino Iron Pty Ltd v Mineralogy Pty Ltd [2017] WASCA 24 [33].