Doueihi v State of New South Wales

The relevant pleadings in the plaintiff's 2FASOC

1. The Burwood Police Station and Quest Apartments Incidents as alleged in the 2FASOC may be summarised as follows.

The Burwood Police Station Incident

1. Paras [3]-[16] of the 2FASOC plead material facts relating to the "Burwood Police Station Incident". In summary, they allege the following: 1. In 2014 to 2015, the plaintiff was involved in a will dispute with relatives, including a former police officer working at the Burwood Police Station, Mr John Akiki ([3]-[4]). 2. On about 5 November 2015, the plaintiff lodged a complaint that a competing will relied upon by his relatives, including Mr Akiki, was a forgery ([5]-[6]). 3. About three days later, on 8 November 2014, a number of police officers who did not identify themselves attended the plaintiff's residence and left a communication requesting him to contact the Ashfield Police ([7]-[9]). 4. The plaintiff then, that day, attended the Ashfield Police Station, where he was asked to hand over his backpack (which contained documents relating to the wills dispute), which he did. The documents handed over were not recorded in the relevant register ([10]). 5. The plaintiff was then escorted to Burwood Police Station, where Mr Akiki had worked, and was charged with a number of offences including "stalk or intimidate intending to cause fear of physical or mental harm" in respect of Kathy Akiki. Furthermore, the police sought an Apprehended Violence Order ("AVO") against him ([11]-[12]). 6. After the plaintiff was charged, five police officers (including, relevantly, Sergeant Simon Moore and Constable Matthew Mackie) demanded that the plaintiff sign papers presented to him. He signed "all of them" without reading them, because he was subjected to intimidation by, and was fearful of, the officers ([13]-[14]). 7. After signing the documents presented to him, the plaintiff was then permitted to leave the station, transported back to the Ashfield Police Station, and his backpack was returned without his documents relating to the wills dispute ([15]).
2. Although paras [3] to [16] of the 2FASOC largely reflect the corresponding paragraphs in the FASOC, they include several amendments in response to the deficiencies identified in Doueihi No 1. Relevantly, the plaintiff amended his pleadings to identify, where relevant, the specific officers alleged to have conducted the unauthorised act(s).
3. The plaintiff also addressed the deficiencies relating to damages. At para [51] of the 2FASOC, he pleads losses including mental distress and harm in the form of adjustment and mood disorders, as well as economic loss as a consequences of those conditions.
4. To address the final deficiency identified in Doueihi No 1 concerning the pleading of "intimidation", the plaintiff also added paras [36] to [57] of the 2FASOC in relation to three named officers, whose respective conduct overlaps in part. In summary, the plaintiff pleads that while he was in custody at the Burwood Police Station, Sergeant Moore, Constable Mackie and Constable James Jin refused to tell him what he had been charged with and "spoke to him in an aggressive tone" (at paras [36]-[38]). He also pleads that Sergeant Moore and Constable Mackie demanded that he sign all of the documents presented to him, and each made "a threat" that, if he did not sign all of the documents presented to him, he would be kept in jail until a Magistrate was available (at paras [36]-[37]). The plaintiff further pleads that Constable Mackie and Constable Jin each "made a demand or gave a direction to the plaintiff to oppose making a video recording of the interview" (at [37]-[38]).
5. As against Sergeant Moore alone, the plaintiff pleads that he told the plaintiff that he would only be given a copy of the relevant documents when he went to Court, and not while he was at the police station (at [36]).
6. As against Constable Mackie alone, the plaintiff pleads that Constable Mackie asked or procured other officers in attendance to be present in the interview room at the time (at [37]).
7. The plaintiff also pleads that the conduct of the offers constituted "intimidation" under s 545B of the Crimes Act 1900 (NSW). Section 545B of the Crimes Act relevantly reads: 545B Intimidation or annoyance by violence or otherwise (1) Whosoever- (a) with a view to compel any other person to abstain from doing or to do any act which such other person has a legal right to do or abstain from doing, or (b) in consequence of such other person having done any act which he had a legal right to do, or of his having abstained from doing any act which he had a legal right to abstain from doing, wrongfully and without legal authority- (i) uses violence or intimidation to or toward such other person or his wife, child, or dependant, or does any injury to him or to his wife, child, or dependant, or (ii) follows such other person about from place to place, or (iii) hides any tools, clothes, or other property owned or used by such other person, or deprives him of or hinders him in the use thereof, or (iv) (Repealed) (v) follows such other person with two or more other persons in a disorderly manner in or through any street, road, or public place, is liable, on conviction before the Local Court, to imprisonment for 2 years, or to a fine of 50 penalty units, or both. … (2) In this section: Intimidation means the causing of a reasonable apprehension of injury to a person or to any member of his family or to any of his dependants, or of violence or damage to any person or property, and intimidate has a corresponding meaning. …
8. The plaintiff's pleadings in relation to s 545B of the Crimes Act may be summarised as follows: 1. The separate conduct of the three named officers pleaded in paras [36]-[38] was carried out: 1. to compel the plaintiff to sign all of the documents presented to him, and/or to procure from him his opposition to his interview being recorded (at [39]); and 2. in consequence of the plaintiff refusing to sign the documents presented to him, and/or of the plaintiff requesting that his interview be recorded (at [40]). 1. The separate conduct of the named officers "caused a reasonable apprehension on the part of the plaintiff that he would be detained without being informed of the charges against him, unless he signed all of the documents presented to him and opposed the video being recorded", such that the conduct was intimidation within the meaning of s 545B(2) of the Crimes Act (at [41]-[42]). 2. It was "wrong and without lawful authority" for the named officers to intimidate the plaintiff within the meaning of s 545B(2), such that their conduct breached s 545B (at [43]).
9. The plaintiff also pleads that the officers breached s 13 of the Crimes (Domestic and Personal Violence) Act 2007 (NSW).
10. Section 13(1) Crimes (Domestic & Personal Violence) Act states: (1) A person who stalks or intimidates another person with the intention of causing the other person to fear physical or mental harm is guilty of an offence. ....
11. "Intimidation" is relevantly defined under s 7 of the Crimes (Domestic & Personal Violence) Act as follows: (1) For the purposes of this Act, intimidation of a person means- … (b) an approach made to the person by any means (including by telephone, telephone text messaging, e-mailing and other technologically assisted means) that causes the person to fear for his or her safety, or (c) any conduct that causes a reasonable apprehension of injury to a person or to a person with whom he or she has a domestic relationship, or of violence or damage to any person or property.
12. In relation to s 13 of the Crimes (Domestic & Personal Violence) Act, the plaintiff pleads at [45] to [46] that the conduct of each of the named officers: 1. amounted to harassment, "an approach…that caused the plaintiff to fear for [his] physical or mental safety" and/or conduct that caused a reasonable apprehension of physical or mental injury to him, such that it was intimidation under the meaning in s 7 of the Act (at [47]); and 2. was carried out with the intention of causing him to fear physical or mental harm, such that it constituted a breach of s 13 of the Act (at [47] to [48]).

The Quest Apartments Incident

1. Paragraphs [17] to [30] of the 2FASOC plead material facts relating to the Quest Apartments Incident, in relation to which the plaintiff brings a case in trespass and misfeasance in public office. These allegations involve events, police officers, locations and dates which do not overlap with the Burwood Police Station Incident. As these paragraphs are not challenged by the defendant in its notice of motion, it is not necessary to refer to the Quest Apartments Incident, nor the plaintiff's submissions in relation to its relevant pleadings, further in this judgment.

Summary dismissal and strike out

1. Rules 13.4 and 14.28 of the UCPR relevantly state: 13.4 Frivolous and vexatious proceedings (1) If in any proceedings it appears to the court that in relation to the proceedings generally or in relation to any claim for relief in the proceedings - … (b) no reasonable cause of action is disclosed, or (c) the proceedings are an abuse of the process of the court, the court may order that the proceedings be dismissed generally or in relation to that claim. … 14.28 Circumstances in which court may strike out pleadings (1) The court may at any stage of the proceedings order that the whole or any part of a pleading be struck out if the pleading - (a) discloses no reasonable cause of action or defence or other case appropriate to the nature of the pleading, or …
2. In O'Brien v Bank of Western Australia Ltd [2013] NSWCA 71 ("O'Brien"), the Court of Appeal (applying the High Court decision of Spencer v Commonwealth [2010] HCA 28; (2010) 241 CLR 118, observed that on an application for summary judgment, the real issue is whether there is an underlying cause of action or defence, not simply whether one is pleaded (at [23]). The critical question can be expressed as whether there is more than a "fanciful" prospect of success (at [25]), or whether the outcome is so certain that it would be an abuse of the process of the Court to allow the action to go forward (at [54]).
3. The test for determining whether a reasonable cause of action is disclosed is that set out in General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 ("General Steel") at 128 to 129. The three main principles to be applied in this type of application are as follows. 1. The Court's discretion to order summary dismissal is one which must be exercised with "exceptional caution": General Steel at 129. 2. A party is ordinarily to be permitted the opportunity to place his or her case before the court in the ordinary way, and after taking advantage of the usual interlocutory processes. For a summary dismissal to occur, there needs to be a high degree of certainty about the ultimate outcome of the proceeding if it were allowed to go to trial in the ordinary way: Agar v Hyde [2000] HCA 41; (2000) 201 CLR 552 at [57]. 3. The discretion should only be exercised if it is clear that there is no real question to be tried: Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87 ("Fancourt") at 99; Dey v Victorian Railways Commissioners (1949) 78 CLR 61 at 91; Webster v Lampard (1993) 177 CLR 602.
4. It is the defendant's case that the plaintiff's 2FASOC, in so far as it relates to the misfeasance in public office in respect of the Burwood Police Station Incident, meets the test for summary dismissal. The defendant says that the claim is hopeless, such that it is an abuse of process, is frivolous and discloses no reasonable cause of action.

The defendant's submissions

1. The defendant submitted that it made a request for particulars on 30 March 2020. By reply to particulars dated 11 May 2020, the plaintiff identified the documents presented to him at the police station on 8 November 2014, which he signed and has in his possession. The defendant noted that although the reply to particulars suggests that there could be other documents, the plaintiff is unable to identify them. The defendant says it cannot be expected to be subject to a claim that not only is not identified, but cannot be identified.
2. As to the documents produced, the plaintiff identified an Apprehended Domestic Violence Order dated 8 November 2014, a Custody Management Record, a Bail Acknowledgment and the Reasons for Bail Decision by a police officer. Of these documents, a copy of the Provisional Apprehended Domestic Violence Order provided to the plaintiff on 8 November 2014 was served by the plaintiff as part of the reply to the request for particulars. The defendant submitted that it must be inferred that the plaintiff's reference to the Apprehended Domestic Violence Order is in fact properly understood to be a reference to the Provisional Apprehended Domestic Violence Order.
3. The defendant noted that of the documents the plaintiff pleads he was induced to sign at the Burwood Police Station, the only one containing his signature is the Bail Acknowledgment dated 8 November 2014.
4. The defendant also submitted that, to the extent that the plaintiff was advised by a member of the NSW Police Force that he was required to sign this document to secure his release without recourse to a Magistrate, it could not on any construction of the matters pleaded nor could it constitute a criminal act under either the Crimes Act or the Crimes (Domestic and Personal Violence) Act, as he was required to sign the document in order to secure his release under s 33(2) of the Bail Act 2013 (NSW). According to the defendant, the officers' respective instructions to the plaintiff to sign such a document constituted a correct statement of fact, and relayed information that ought to be disclosed to allow a person to make an informed decision as whether or not to sign the document.
5. The defendant further submitted that the alleged "intimidation" set out at para [13] of the 2FASOC is incapable of being borne out by the plaintiff's pleaded claim. The defendant submitted that none of the particulars meet the test for s 545B(1)(ii)-(v) of the Crimes Act. As to subsection (i), no "violence" is pleaded and no "reasonable apprehension of injury" is pleaded by reference to the definition of "intimidation". The matters pleaded could not in any manner be construed as falling within the statutory definition of "intimidation" in s 545B.
6. Similarly, for the purpose of s 13 of the Crimes (Domestic & Personal Violence) Act, the defendant submitted that the matters pleaded also could not, even at their highest, be said to constitute "intimidation" as defined under the Act.
7. In Doueihi No 1, his Davies J struck out the misfeasance in public office allegation in respect of the Burwood Police Station Incident and granted leave to re-plead the claim (at [45]-[48]). Relevantly, his Honour considered s 545B of the Crimes Act and s 13 of the Crimes (Domestic and Personal Violence) Act, which at that time were not formally pleaded, and expressed the view that those provisions did not "assist the plaintiff in the argument it wants to make that the act in each case was intimidation". Davies J observed in Doueihi No 1 at [47]: [47] Although the plaintiff asserts that the act in each incident was intimidation, the pleading in paragraph 39b, 'any or all of their conduct', suggests particular acts rather than an overall act of intimidation. What seems to be the true situation appears from a number of parts of the pleading including paragraph 13 particulars (d) and (f) as well as paragraph 29, namely, that the plaintiff felt fearful and intimidated. As counsel for the plaintiff now concedes, such a pleading is inadequate for a proper pleading of the tort."
8. The defendant submitted that the inadequacy identified by Davies J is not only maintained but expressly included as a part of the pleading in the 2FASOC. The effect of the 2FASOC is that the plaintiff, at best, felt fearful and intimidated. As observed by Davies J, a complaint on those terms is insufficient to meet the statutory definitions of those Acts, nor does it maintain a pleading of misfeasance in public office.
9. In summary, the defendant submitted that the evidence does not support the facts upon which the plaintiff asserts he was compelled to sign the documents. Further, the matters pleaded as constituting "intimidation" are insufficient to meet the definition of the term in either the Crimes Act or the Crimes (Domestic and Personal Violence) Act. Finally, the plaintiff's allegation that he felt intimidated and fearful is incapable of establishing misfeasance in public office. On this basis, the defendant submitted that even where the Court is to accept the plaintiff's case at its highest, the pleading in respect of misfeasance in public office has no prospect of success and ought to be struck out.
10. In the alternate, and for the same reasons, the defendant submitted that if the Court is not minded to summarily dismiss that part of the claim, the paragraphs that go to misfeasance in public office ought to be struck out. Should the Court make the orders in the alternative, the defendant objected to the plaintiff being given leave to re-plead the misfeasance claim given the many iterations to date and the opportunities provided to properly plead the claim. As the plaintiff has been legally represented when filing his FASOC and 2FASOC, no further opportunity ought to be given to him.

The plaintiff's submissions

1. The plaintiff submitted that in contrast to the previous pleading, in the 2FASOC names the offers and identifies the individual conduct alleged to constitute the unauthorised or unlawful conduct. It also addresses the insufficient pleading in regards to damages, and vicarious liability of the defendant for the alleged wrongful acts.
2. As to the pleadings regarding the tort of misfeasance in public office, the plaintiff referred to Northern Territory of Australia v Mengel (1995) 185 CLR 307 at 337, where the elements of the tort of misfeasance in public office were identified as: 1. an invalid or unauthorised act; 2. done maliciously; 3. by a public officer; 4. in the purported discharge of his or her duties; and 5. which causes loss or harm to the plaintiff.
3. In Edward Moses Obeid Snr v David Andrew (2016) 338 ALR 234; [2016] NSWSC 1376 ("Obeid"), Hammerschlag J elaborated that "The mental element in the tort is satisfied when the public officer engages in the impugned conduct with the intention of inflicting injury, or with the knowledge that there is no power to engage in that conduct and it is calculated to produce injury, or where the officer acts with reckless indifference as to the existence of power to support the impugned conduct…" (at [235]-[236]).
4. The plaintiff submitted that the pleading in the 2FASOC sufficiently sets out a case for misfeasance in public office. Rather than merely allege that the plaintiff felt intimidated as in the previous pleading, the 2FASOC pleads a case of "intimidation" within the meaning of s 545B of the Crimes Act (at para [42]) and, alternatively, s 13 of the Crimes (Domestic and Personal Violence) Act (at para [46]), as set out earlier in this judgment. The intentional element of the offence is specifically pleaded at para [47], and the lack of the respective officers' authority to contravene ss 545B of the Crimes Act and s 13 of the Crimes (Domestic and Personal Violence) Act is pleaded at para [49].
5. The plaintiff submitted that on this basis, the 2FASOC pleads the intentional element of the tort of misfeasance in public office against each of the three named officers individually, in a manner consistent with the intentional element as explained by Hammerschlag J in Obeid at [235]-[236].

Resolution

1. I accept that the plaintiff has addressed the deficiencies identified in the FASOC in relation to damages and insufficient identification of the officers against whom he alleges the tortious conduct. The question now before the Court is whether the elements of the offence of misfeasance in public office have been adequately pleaded in respect of the Burwood Police Station Incident.
2. The defendant has confined its complaints to two issues concerning the plaintiff's pleadings, both of which it says meet the test for summary dismissal. The first is that the evidence does not, and cannot, make out the plaintiff's claim. The second is that the officers' alleged conduct does not satisfy the definitions of the relevant offences under the Crimes Act and the Crimes (Domestic and Personal Violence) Act.

The evidence in support of the plaintiff's claim

1. At [13] of the 2FASOC, the plaintiff relevantly pleads that Sergeant Moore "said words to the effect that it was necessary for him to sign all of the papers presented to him for his release and that, if he did not sign all of the papers presented to him, he would be kept in jail until a magistrate was available" ([13(e)]). He further pleads that he "felt that he would only be permitted to leave the station if he signed all of the papers presented to him" ([13(f)]), an amendment from the earlier reference in the FASOC to signing merely "the statement".
2. At [14] of the 2FASOC, the plaintiff pleads that "By virtue of the intimidation applied by the police officers and the fear felt by the plaintiff…[he] signed all of the papers presented to him for signature by the police officers without reading them, which papers included a consent to an Apprehended Violence order (AVO)". He further pleads that it was only after signing "the documents presented to him" (which is amended from a reference in the FASOC only to "his consent to an AVO"), he was permitted to leave the Burwood Police Station.
3. The affidavit of Mr Coles dated 5 June 2020 includes the documents served by the plaintiff in reply to the defendant's request for further and better particulars. Annexure E to the affidavit of Mr Coles contains a copy of the Provisional Apprehended Domestic Violence Order ("provisional ADVO"). It is the evidence of Constable Mackie (Aff at [13]) that a person served with a provisional ADVO is not required to sign it, as an ADVO is issued by the Court and not by consent of the defendant (the plaintiff in these proceedings). Consistent with the nature of a provisional ADVO, and despite the plaintiff's claims, the document he relies upon as the document he was compelled to sign under duress does not contain his signature, nor does it allow for a signature of the person to whom it is addressed.
4. The plaintiff has not specified in his 2FASOC which other documents he says he was induced to sign. Annexure A to Mr Coles' affidavit is a copy of the Custody Management Record in respect of the plaintiff's detention at Burwood Police Station in 8 November 2014. Annexure B is a copy of the Court Attendance Notice relating to two charges laid against the plaintiff prior to his release from custody on 8 November 2014, being Assault occasioning actual bodily harm and Stalk or intimidate intending to cause fear of physical or mental harm. The affidavit of Mr Coles also includes a copy of the FACTS Sheet (Annexure C) and a copy of the indictable brief of evidence (Annexure D) in relation to both charges.
5. The plaintiff was ultimately convicted and fined in respect of both charges (Aff at [10]; Annexure G).
6. None of the documents represented in Annexures A, B, C, D and G contain the plaintiff's signature, required the plaintiff's consent or signature or provide a place for the signature of the detained person to whom they relate. Insofar as the plaintiff's pleadings assert that he signed these documents (or that he was required to), whether under intimidation or otherwise, those assertions are not supported by the plaintiff's own evidence.
7. The only document in evidence which contains the plaintiff's signature is a Bail Acknowledgement Form dated 8 November 2014 (Annexure F). This document set out the two offences for which the plaintiff was charged, notified him that he was required to appear at Burwood Local Court at 9.30 am on 14 November 2014 and outlined the conditions on which bail was to be granted. It is Constable Mackie's evidence that he told the plaintiff that if he did not sign the Bail Acknowledgement Form, he would not be granted bail that day (Aff at [14]).

Whether the alleged conduct is capable of constituting misfeasance in public office

1. The plaintiff pleads a case of "intimidation" against the named officers within the meaning of s 545B of the Crimes Act and, alternatively, s 13 of the Crimes (Domestic and Personal Violence) Act. At paras [43] and [49] of the 2FASOC, the plaintiff pleads that it was wrong and without lawful authority for the named officers to intimidate him, such that their respective conduct satisfies the intentional element of the tort of misfeasance in public office.
2. There appear to be three primary bases on which the plaintiff alleges that the named officers intimidated him for the purposes of s 545B of the Crimes Act and/or s 13 of the Crimes (Domestic and Personal Violence) Act. The first is in "compel[ling]" him to sign all of the documents presented to him. The second is in advising, directing and/or demanding that he "oppose making a video recording". The third, which informs the other two, is in speaking to him in an "aggressive tone".
3. As to the first, the plaintiff pleads that Sergeant Moore and Constable Mackie demanded that he sign all of the documents presented to him, and that each made "a threat" that, if he did not sign them, he would be kept in jail until a Magistrate was available (at paras [36]-[37]). As I have already set out under the previous heading, there is no evidence that the plaintiff signed any document but the Bail Acknowledgement Form.
4. It is important to note that to be released from custody where bail is a requirement, the detained person must sign the Bail Acknowledgment Form. Part 2, s 14 of the Bail Act 2013 (NSW) relevantly states: 14 Limitation on entitlement to be at liberty (1) Bail does not entitle a person to be at liberty until- (a) the person signs, and gives to the bail authority, a copy of the bail acknowledgment for the decision to grant bail, and (b) all pre-release requirements of bail conditions have been complied with. …
5. The notation under s 33(2) of the Bail Act provides that "An accused person is not entitled to be released on bail under Part 2 until he or she signs the bail acknowledgment and gives it to the bail authority." Constable Mackie's statement to the plaintiff to that effect at Burwood Police Station accords with these provisions.
6. Although the plaintiff's pleading that he was "compel[led]" to sign these document(s) adopts the language of s 545B(1) of the Crimes Act, s 545B(1) requires the offender to act with a view to compel a person such as the plaintiff to do (or abstain from doing) any act which the person has a legal right to abstain from doing (or do), or else in consequence of him having done an act which he had a legal right to do, or of his having abstained from doing any act which he had a legal right to abstain from doing. It is not clear how an officer informing the plaintiff of the statutory preconditions of his release could satisfy the conditions of s 545B(1), as the plaintiff did not have the right to release unless he signed the Bail Acknowledgement Form.
7. I also note that despite the plaintiff's pleadings that the named officers' conduct "caused a reasonable apprehension that he would be detained without being informed of the charges against him" (at [41]), the first page of the Bail Acknowledgement Form, which he signed, clearly sets out the two offences with which he was charged.
8. The second basis on which the plaintiff alleges intimidation concerns the video recording of his interview. At [38(a)] of the 2FASOC, the plaintiff pleads that Constable Jin "made a demand or gave a direction to the plaintiff to oppose making a video recording of the interview". From the pleadings, it appears to be the plaintiff's case that by so doing, the officer(s) intimidated him with a view to unlawfully compel him to abstain from making such a recording. However, at [13(b)] this pleading is elaborated to state that both Constable Jin and Constable Mackie "advised the plaintiff to oppose making a video recording because the matter would not go in his favour at Court", which frames the alleged offence as the provision of advice relating to the favourability of his recording in light of the charges laid against him.
9. As set out earlier in this judgment, intimidation is relevantly defined under s 545B(2) of the Crimes Act and s 7 of the Crimes (Domestic and Personal Violence) Act to mean conduct causing "a reasonable apprehension of injury", which includes both physical and psychological injury.
10. The "reasonable apprehension" which the plaintiff pleads at [41] in relation to s 545B of the Crimes Act is an apprehension that he would be detained. As I have already set out, the plaintiff was at the time of the alleged intimidation lawfully detained, and under s 33(2) of the Bail Act, not entitled to release unless and until he signed the Bail Acknowledgement Form. It is not clear how the plaintiff seeks to plead that a reasonable apprehension of detention under the circumstances amounts to a reasonable apprehension of injury as defined under the Crimes Act, such that the alleged conduct of refusing to release him until he signed the Bail Acknowledgement Form, or advising him against "making a video recording because the matter would not go in his favour at Court", constitutes intimidation.
11. Thus the first two bases on which the plaintiff alleges intimidation, being that the officers compelled him to sign the document(s) and advised him to oppose making a video recording, are not on their face unlawful, nor are they alone capable of constituting intimidation as pleaded.
12. This leaves for consideration the third of the plaintiff's complaints, being that the officers each "spoke to him in an aggressive tone" (at paras [36]-[38]). In Doueihi No 1, Davies J foreshadowed this pleading when addressing the insufficiencies in the plaintiff's FASOC as follows at [46]: 46 Intimidation, even when used in [the Crimes Act and the Crimes (Domestic and Personal Violence) Act], is a conclusion that is drawn from particular acts or behaviour. A person may intimidate another by shouting at them or brandishing a weapon or speaking close to their face with a particular tone to their voice. Any of those acts might mean that an offence has been committed or that there has been some form of duress. In terms of the tort of misfeasance in public office, it does not advance an understanding of the act to say that it was one of intimidation. Although counsel for the plaintiff asserted that the act might be lawful but might be carried out in an unlawful way because intimidation was involved, it is difficult to see how such a lawful act would become unlawful by the means of its execution in the manner described. (My emphasis)
13. As set out earlier in this judgment, the plaintiff had insufficiently pleaded in his FASOC that he "felt fearful and intimidated", and failed to set out that the alleged acts were unauthorised or invalid or that they had been done to inflict harm (Doueihi No 1 at [49]).
14. However, the plaintiff has now amended his pleading in relation to s 13 of the Crimes (Domestic and Personal Violence) Act to plead that the conduct of the named officers "caused a reasonable apprehension of physical or mental injury" to him (at [45(c)]) and was carried out "with the intention of causing [him] to fear physical or mental harm" (at [47]). These pleadings address the required elements of "intimidation" as defined under s 7 of the Crimes (Domestic and Personal Violence) Act, and are capable of being supported by his allegation that in speaking to him in an "aggressive tone", the officers' otherwise lawful acts became unlawful by means of their execution.
15. The pleading at [45(c)] that the officers' conduct "caused a reasonable apprehension of physical or mental injury" to the plaintiff also addresses the reasonable apprehension of injury required to establish intimidation under s 545B of the Crimes Act, despite the plaintiff's phrasing under that heading that the conduct only caused "a reasonable apprehension that he would be detained". I am mindful that in considering whether to summarily dismiss proceedings, the question for this Court is whether there is an underlying cause of action, not simply whether one is pleaded (O'Brien at [23]). For this reason, it is my view that it is not appropriate to strike out the plaintiff's pleadings in relation to s 545B of the Crimes Act, as the elements of that offence are pleaded when the 2FASOC is read as a whole.
16. At the hearing of these proceedings, counsel for the defendant submitted that an "aggressive tone" is so far below what is required to establish harassment and intimidation for the purposes of the Crimes Act and the Crimes (Domestic and Personal Violence) Act that it could never be established. It is my view that the plaintiff's case is weak. However, even considering the absence of the other documents to which the plaintiff refers, I cannot conclude that his case is hopeless. The manner in which the plaintiff was addressed by the officers in giving otherwise lawful directions, and whether their conduct gave rise to a reasonable apprehension of injury under the circumstances, are matters for evidence which is capable of bearing out the plaintiff's case. As the plaintiff's pleadings in relation to the Burwood Police Station Incident disclose a reasonable cause of action, it should be permitted to go to trial.
17. For these reasons, it is not appropriate to summarily dismiss the plaintiff's claim or to strike out his pleadings in relation to the Burwood Police Station Incident. The result is that the defendant's notice of motion filed 28 October 2020 is dismissed.

Costs

1. Costs are discretionary. Costs usually follow the event. The defendant is to pay the plaintiff's costs on an ordinary basis.

The Court orders that: 1. The defendant's notice of motion filed 28 October 2020 is dismissed. 2. The defendant is to pay the plaintiff's costs on an ordinary basis.

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