Appeal and New Trial - Appeal - Practice and procedure - Tasmania - Powers of court - Other matters - Security for costs - Factors to be taken into account - Impecunious appellant - Prospects of success.

Ninth to Thirteenth Respondents: Director of Public Prosecutions

Judgment Number: [2003] TASSC 116

JON JOVANOVIC v THE LAW SOCIETY OF TASMANIA,

AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION,

SCOTT PURDON, JANINE MARCIA MARTIN, DAVID JOHN GUNSON,

MAX McMULLEN, TASMANIAN PERPETUAL TRUSTEES LIMITED,

THE ATTORNEY-GENERAL(The Honourable Judith Louise Jackson),

MICHAEL WALLACE GRANT, THE COMMISSIONER OF POLICE

(Mr Richard McCreadie), THE DIRECTOR OF PROSECUTIONS

(Mr Timothy James Ellis, (SC)), BYRON CROSS, TASMANIAN LEGAL AID

1 Before dealing with the substance of what was before me, I comment on the identity of the parties to the appeal. At first instance, according to the judgment from which the appeal has been brought, there were 23 defendants. The notice of appeal as typed named 21 respondents, but four of those had been crossed out by hand by the time of filing, so that there were 17 respondents. Their identities appear at the commencement of these reasons. On the notice of appeal under the typewritten identification of the eighth respondent as the Attorney-General, the names of the Honourable Peter James Patmore and the Honourable Judith Jackson were handwritten. I have omitted reference to Mr Patmore, because the appellant and counsel for the Attorney-General confirmed to me that Mr Patmore has at no time been served with the writ or the notice of appeal.

2 Therefore, there are 17 respondents to the appeal. Nevertheless parties have produced documents showing a different number. Such has been the confusion that on 22 October I ordered by consent that the name of Stephen Maxwell Burk be added as the thirteenth respondent and I made a consequential order. It now seems to me that the first order was erroneous, for Mr Burk was in fact the ninth named to appear as a respondent in the notice of appeal. All that had happened was that his name had been omitted from later documents. Describing the respondents by numbers may therefore cause confusion.

3 I turn to the applications before me. On 13 December 2002, the appellant commenced an action against 21 defendants when he filed a writ. Many of the defendants objected to the statement of claim, and also to an amended statement of claim on which the appellant wished to rely in substitution for it. Defendants applied to strike out the statement of claim because it did not disclose a cause of action, it was frivolous or vexatious, and it was an abuse of process and embarrassing. They sought judgment against the appellant as a consequence. Their applications were heard by the Chief Justice on 1 and 2 July 2003. As the appellant wished to rely on his proposed amended statement of claim, rather than the original statement of claim, the applications were dealt with on the basis of the statement of claim with the proposed amendments.

4 On 1 August 2003 the Chief Justice published lengthy reasons for judgment. His Honour's conclusion was that the statement of claim and the proposed amendments to it were misconceived. He ruled that the documents offended the rules of pleading in the sense that they did not set out clearly the material facts upon which the appellant claimed relief and they included prolix and confusing statements which were argumentative or, at best, evidential in character. It was also held that it was impossible to discern from the documents any viable cause of action against any of the defendants who were then before the Chief Justice, and that the defects were incurable. The only course that appeared to be appropriate to the Chief Justice was to strike out the statement of claim and the amended statement of claim against each of 16 defendants and to enter judgment for them against the appellant. Those 16 defendants are the 17 respondents to the appeal, other than the sixteenth respondent, Bruce Brown. I presume that he was erroneously named by the appellant as a respondent to the appeal.

5 From the orders of the Chief Justice, the appellant appealed to the Full Court by a notice of appeal filed on 7 August 2003. The appeal will not be heard before March 2004 at the earliest. Four applications came before me for hearing. They were filed by certain of the respondents seeking orders that the appellant provide security for the costs of the appeal so far as it concerns them. The four applications were respectively:

1 The eighth respondent, the Attorney-General, the Honourable Judith Jackson, applied for orders that within 14 days the appellant provide security for her costs of the appeal by depositing with the Registrar $1,000, that until that sum is deposited the appeal be stayed as against her and that she have liberty to apply for an order that the appeal be struck out in the event that security for costs is not provided in accordance with the first order.

2 The ninth, tenth, eleventh and twelfth respondents, being police officers Burk, Ashwood and Grant, and the Commissioner of Police, Richard McCreadie, applied for similar orders, except that they wanted $6,000 paid as security.

3 The thirteenth respondent, the Director of Public Prosecutions, Timothy Ellis SC, applied for similar orders and wanted $1,000 paid as security.

4 The fourteenth and fifteenth respondents, Byron Cross of the Legal Aid Commission and the Commission itself, applied for similar orders and also wanted $1,000 paid as security.

6 I commenced to hear the applications on 22 October 2003. Before the hearing had concluded, the appellant indicated that he would discontinue the appeal against the respondents who had applied for security for costs, apparently intending to commence a fresh action against them. I adjourned the hearing to give him time to attend to the discontinuance. However, subsequently he only filed a notice discontinuing the appeal against the eighth, fourteenth and fifteenth respondents, that is the Attorney-General, Byron Cross and the Tasmanian Legal Aid Commission (described in the notice of discontinuance as the twelfth, eighteenth and nineteenth respondents respectively). I presume that those respondents will obtain a judgment dismissing the appeal against them, pursuant to the Supreme Court Rules 2000, r675(3). Therefore, it appears unnecessary for me to determine on the merits the applications by those respondents for security for costs.

7 I therefore turn to the remaining applications for security for costs, those of the police officers, the ninth to twelfth respondents, for $6,000 by way of security, and of the Director of Public Prosecutions, the thirteenth respondent, for $1,000.

8 By the Supreme Court Rules, r671, security for the costs of an appeal is not required unless the Court or a judge otherwise orders. No criteria is specified for making such an order. The discretion whether to make it is unfettered, although the burden rests on the applicant to persuade me to make it, an onus which counsel for the applicants for security accepted.

9 The Director of Public Prosecutions acts for all of the applicants for security. In support of the applications there were read affidavits sworn by Paul Turner, a legal practitioner in the Director's office, who personally handles their matters. I have no reason to doubt anything said by him in the affidavits. None of it was challenged by the appellant. Indeed, apart from Mr Turner's estimates of the likely costs of the appeal to the applicants, he agreed with all of the contents.

10 One of the orders made by the Chief Justice, when he struck out the pleading and ordered judgment for the respondents, was that the appellant pay the successful defendants' costs of the action. Some of those costs were taxed as follows:

1 The eighth respondent's costs in the sum of $767.60.

2 The ninth, tenth, eleventh and twelfth respondents' costs in the sum of $7,702.60.

3 The thirteenth respondent's costs in the sum of $846.20.

4 The fourteenth and fifteenth respondents' costs in the sum of $748.

11 There is no prospect of the appellant paying those amounts, in particular the total of $8,548.80 due to the ninth to thirteenth respondents, whose applications I am considering. He has asserted that he is impecunious, burdened with debt and without income. Because of those matters, there is apparently no prospect of him complying with any order that he pay the respondents' costs of the appeal, should he be unsuccessful, or with any order for security for the costs of the appeal that I may make.

12 Counsel for the applicants for security submitted that the appeal, as it relates to them, has no chance of success. I do not propose to conduct a detailed analysis of every paragraph of the amended statement of claim that is directed to the ninth to thirteenth respondents, for it is unnecessary to do so. With respect, I substantially agree with the reasons for judgment of the Chief Justice. I have searched to gain an understanding of whether it is arguable that the appellant pleaded a good cause of action. In doing so I have taken into account that he is not legally trained and plainly has considerable difficulty coming to terms with the formalities and niceties of sound pleading.

13 The paragraphs of the amended statement of claim that purport to relate to the ninth to thirteenth respondents are numbered 379 to 443, 65 in all. Overall they are unreasonably long and repetitive and difficult to understand. As was observed by the Chief Justice, some are merely argumentative. Others merely state evidential matters, without pleading facts upon which a cause of action may depend. A number of them claim damages upon bases with respect to which the Court has no jurisdiction to award them. The headings preceding the paragraphs in question are sufficient to illustrate what I am saying. They include, for example, that the appellant claims damages for failure to act in good faith, failure to act reasonably, bias, loss of opportunity, failure to accord natural justice, failure to accord due process, racial discrimination and failure to provide documents, none of which could conceivably amount to a legal basis for a claim for damages in this Court.

14 As I have already indicated, much of the relevant part of the pleading is repetitive. For example, par387 pleads that the eleventh respondent, Michael Wallace Grant, was negligent by failing to properly investigate all relevant matters and make all proper enquiries prior to constituting criminal proceedings against the appellant. Paragraph 388 repeats it all again, except that instead of labelling the omissions as negligent, the appellant labels them as breaches of a duty of care, which could only be a reference to negligence if it concerns a cause of action within the jurisdiction of the Court. Similarly, pars389, 390 and 391 merely repeat par387, except that they label the omissions as "failed to act in good faith", "failed to act reasonably" and "owed a statutory duty to investigate before prosecuting", respectively. Those five paragraphs are replicated by pars392 - 396 and by pars397 - 401, except that pars392 - 396 are pleaded against the twelfth respondent, the Commissioner of Police, and pars397 - 401 are pleaded against the thirteenth respondent, the Director of Public Prosecutions.

15 In response to a submission by the appellant, I point out that the effect of the Police Regulation Act 1898, s52(2), which provides that a police officer shall not incur any civil liability for an act or omission done or made in good faith as provided in the subsection, does not mean that merely because a police officer does not act in good faith, he or she incurs civil liability. The liability must exist by virtue of some cause of action within the jurisdiction of the Court and in addition to it, the defendant must have been lacking in good faith at the time of the relevant act or omission. I add that contrary to the submissions of the appellant, the Act, ss15 and 52, do not themselves give rise to private causes of action against police officers.

16 When referring to claims such as those I have mentioned, the Chief Justice observed that as against the three police officers who investigated certain allegations against the appellant which he claims led to still pending criminal proceedings against him, and the holders of the offices of the Commissioner of Police and Director of Public Prosecutions for negligence, the claims are unsustainable. See Hill v Chief Constable of West Yorkshire [1989] AC 53, Calveley v Chief Constable of the Merseyside Police [1989] AC 1228, Elguzouli-Daf v Commissioner of Police of the Metropolis [1994] EWCA Civ 4; [1995] QB 335 and Osman v Ferguson [1992] EWCA Civ 8; [1993] 4 All ER 344. I think that the appellant will have considerable difficulty persuading the Full Court that his Honour's decision in that regard was wrong and that the relevant parts of his amended statement of claim should not have been struck out.

17 Listening to the appellant's oral submissions, it seemed to me that his case against the ninth to thirteenth respondents is not so much based on negligence and the other bases to which I have referred, as it is on malicious prosecution. His main complaint appears to be that he has been prosecuted for a number of crimes or offences, that the charges are without a justifiable foundation and that they have been maliciously brought against him. Malicious prosecution was in fact one of the headings in his amended statement of claim. However, the relevant paragraphs of the pleading against the ninth to thirteenth respondents are deficient, for they do not directly plead a case based on malicious prosecution. To illustrate for him what I am saying, I refer to the precedent for a claim for malicious prosecution in Pleading Precedents by M M G Britts (5 edn) at 113:

"1 On or about 18 March 1990 the Defendant maliciously and without reasonable and probable cause proffered charges against the Plaintiff of having stolen certain property contrary to the provisions of the Crime Act 1900.

2 Upon hearing of the charges against him in the Court of Petty Sessions at Redfern the Plaintiff was acquitted of the said charges.

3 In consequence of the matters aforesaid the Plaintiff has been injured in his reputation and was put to considerable expense and suffered great inconvenience."

18 Such a precedent would need amendment to make it applicable to the circumstances of this case, but it illustrates how a pleading need only state concisely the facts upon which an alleged cause of action is based.

19 Insofar as the appellant sought to base his claim on malicious prosecution, he failed to precisely or concisely express his claim to be such in the amended statement of claim.

20 The Chief Justice appeared to acknowledge that the appellant wished to sue for malicious prosecution when his Honour concluded his separate consideration of the amended pleading, as it affected the ninth to thirteenth respondent, in the following terms: "Malicious prosecution is not available to the plaintiff as the proceedings against him have not resulted in an acquittal. The allegations fail to reveal any cause of action against the abovenamed defendants". I do not know what information was before his Honour to cause him to conclude, as he did, about the availability to the appellant of malicious prosecution as a cause of action, but on the basis of facts explained to me, it appears that his Honour was in error.

21 In a complaint dated 30 January 2002 and made by Constable Graeme Brown, who is not a party to these proceedings, the appellant was charged with one count of attempted fraud in relation to land under the Real Property Act 1862, contrary to the Criminal Code, ss255 and 299, and with one count of attempting to dishonestly acquire a financial advantage, contrary to the Code, ss252A and 299. He was also charged with offences contained in two other complaints, neither of which I have seen. On 5 March 2003 a Crown prosecutor informed the Criminal Court that it was not intended that an indictment would be filed, whereupon the appellant was discharged with respect to all of the crimes and offences in the three complaints. There are other criminal charges pending for which the appellant is due to appear in the Criminal Court next February. In respect of the pending charges, the appellant could not have available to him a cause of action for malicious prosecution, because an element of that is that proceedings that were instituted or continued maliciously and without reasonable and probable cause, have terminated in the plaintiff's favour. But contrary to what was said by the Chief Justice, it is not a requirement that the plaintiff must have been acquitted before the cause of action can arise. Discontinuance of proceedings is sufficient. Watkins v Lee [1839] EngR 343; (1839) 5 M & W 270. Accordingly, it is not an answer to a claim by the appellant based on malicious prosecution, with respect to those charges that were proffered against him but subsequently withdrawn, that he was not acquitted.

22 With respect, I am in agreement with the Chief Justice that the appellant pleaded no recognised cause of action against the ninth to thirteenth respondents, not even malicious prosecution. It seems to me that the striking out of his amended statement of claim in its entirety is likely to be unassailable. But recognising that it is the appellant's wish to base his action, at least in part, on that cause of action, and taking into account his obvious limitations as a litigant in person, I regard it as reasonably possible that he will persuade the Full Court that instead of ordering judgment against him, the learned Chief Justice should have given him a further opportunity to properly plead his claim for malicious prosecution arising out of the proffering of the charges that have been discontinued.

23 What I have just said applies to the appellant's case against the ninth, tenth and eleventh respondents. However it does not apply to his case against the twelfth respondent, the Commissioner of Police. An action for malicious prosecution against a police officer, depending as it does for success on that officer's lack of good faith because of the Police Regulation Act, s52(1), cannot be brought against the Commissioner upon the basis that the Commissioner is vicariously liable. That is what I understand the appellant wishes to do and I cannot see that he is likely to succeed with his appeal against the Commissioner. It is the personal lack of good faith of the proposed defendant that needs to be established, together with his participation in the proffering of the relevant charges.

24 Nor do I see that the appellant is likely to succeed with his appeal against the thirteenth respondent, the Director of Public Prosecutions. My understanding is that the appellant's claim against the Director was pleaded by him upon the basis that the Director instituted criminal proceedings against him, but on the information provided to me, that does not appear to be so with regard to the complaints that have been discontinued. They were made by police officers. Insofar as the Director may have instituted criminal proceedings by filing an indictment, any such proceedings must still be pending and no cause of action for malicious prosecution could have arisen against him yet. I add that the appellant addressed no submissions to me that he had a sound basis for his appeal against the Director.

25 Therefore, for the reasons I have given, I consider that it is reasonably possible that to a limited extent, the appellant will succeed with his appeals against the ninth to eleventh respondents, but his chances of success against the twelfth and thirteenth respondents are remote.

26 Having regard to the fact that the appellant lost at first instance, that he has failed to pay the taxed costs that were awarded against him then, that he has indicated that he will be unable to pay them or any costs awarded against him in the event of his appeal failing and that I can see little prospect of success for his appeal against the twelfth and thirteenth respondents, I consider it reasonable and proper that an order for security for costs should be made in their favour and that he should be restrained from prosecuting the appeal until he has satisfied such an order. It has not been claimed that his impecuniosity was caused by the actions of the twelfth and thirteenth respondents with respect to which he wishes to sue. In determining to order security, I have had regard to a number of authorities including Dranichnikov v Centrelink [2002] FCA 1622, Lall v 53-55 Hall Street Pty Ltd [1978] 1 NSWLR 310, Scerri v Northam Holdings Pty Ltd [1967] VicRp 76; [1967] VR 674, Smail v Burton [1975] VicRp 76; [1975] VR 776 and Lucas v Yorke (1983) 50 ALR 228. I have also taken into account the manner in which the appellant has conducted his proceedings to date. The sheer size of his statement of claim, which is plainly unreasonable, and the failure to plead a cause of action, must have increased substantially the costs of the parties opposing him.

27 However, having regard to the possibility that he may not lose his appeal altogether in relation to the ninth, tenth and eleventh respondents, and to the fact that they are public officers represented by the Director of Public Prosecutions, I am unpersuaded that security for costs should be ordered against him in their favour.

28 Accordingly, it will be ordered that the applications for security for costs by the ninth, tenth and eleventh respondents being Stephen Maxwell Burk, Michael Aaron Ashwood and Michael Wallace Grant are dismissed. With regard to the applications by the twelfth and thirteenth respondents, the Commissioner of Police and the Director of Public Prosecutions respectively, it will be ordered that within 28 days the appellant provide security for their costs of the appeal by depositing with the Registrar the sum of $1,000 with respect to each of them (a total of $2,000) and that until such sum is so deposited, the appeal be stayed as against the respective respondent. It will also be ordered that the twelfth and thirteenth respondents have liberty to apply for an order that the appeal be struck out in the event that security for costs is not provided in accordance with these orders.

29 I have assessed $1,000 for each of those respondents for the following reasons. In the case of the Director, it was the amount estimated by Mr Turner. It was not challenged by the appellant. In the case of the Commissioner, I have assessed a similar amount, assuming that much of the estimate of $6,000 provided by Mr Turner for the costs of the Commissioner and the ninth, tenth and eleventh respondents will be incurred on behalf of the ninth to eleventh respondents in any event.