Makucha v Richardson

Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 Commonwealth of Australia v BIS Cleanaway Limited [2007] NSWSC 1075 Cran v State of New South Wales (2004) 62 NSWLR 95 CASES CITED : General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 Hill v Chief Constable of West Yorkshire [1989] AC 53 Rivers v Bondi Junction-Waverley RSL Sub-Branch Ltd (1986) 5 NSWLR 362 Sullivan v Moody (2001) 207 CLR 562 Tame v State of New South Wales (2002) 211 CLR 317

PARTIES : Paul Makucha (Plaintiff) Paul Arthur Richardson (Defendant)

COUNSEL : JW Conomos (Plaintiff) M Hutchings (Defendant)

SOLICITORS : Worthington Williams Lawyers (Plaintiff) Crown Solicitor's Office of New South Wales (Defendant)

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION CIVIL LIST

JUDGMENT 1 HER HONOUR: The plaintiff seeks declaratory relief in respect of what is said to be the defendant's failure to exercise, or to properly exercise his office and/or powers of a constable of police in respect of the investigation of an incident reported in a COPS entry in which the plaintiff is named as the person of interest. The entry, which bears number E119355594, is dated 11 December 2006 (the "COPS entry"). 2 It is common ground that the COPS system is a secure database maintained by the New South Wales Police Service ("the Police Service"). It is also not the subject of any contest that the Police Service utilises the COPS system as a method of recording information received from members of the public together with information that is collected by police at the commencement of, or during the currency of, an investigation into an incident (or an occurrence) and that may result in criminal proceedings or other action being taken by police in discharge of their prosecutorial functions. The COPS system is also used as a means of collating information chronologically to enable police to access the database generally in the discharge of their statutory functions and duties under the Police Act 1990.

3 It is necessary to set out the circumstances in which the COPS entry came to be made in order to deal with the matters that were raised in argument, both in support of the plaintiff's application for leave to amend the summons and the defendant's application that it be dismissed pursuant to Part 13 of the Uniform Civil Procedure Rules 2005 (UCPR). The making of the entry 4 In summary, the entry concerns two incidents that occurred in a medical centre located in a suburban shopping complex over the course of the week preceding the date of the entry. The first incident refers to the fact that the plaintiff was involved in a verbal altercation with staff from the medical centre and security officers from the shopping complex. In respect of this incident it is noted that the plaintiff was struck by a female patient with her purse in purported retaliation at the plaintiff having insulted a member of staff. The second incident concerns the plaintiff returning to the medical centre a week later when he commenced to take photographs of the medical centre and staff. He was spoken to by security officers and asked to leave the premises whereupon he threatened the officers with sacking, claimed that he was a personal friend of Frank Lowy, that he was a former head of ASIO and that he was being persecuted by the New South Wales police. 5 It would appear that on receipt of a complaint about the plaintiff's behaviour from the head of security connected with the shopping complex, investigating police spoke to the staff at the medical centre, security personal and the plaintiff's treating doctor. The COPS entry records that both a doctor at the medical centre and the head of security asked that a report be made. However, no other action was sought by them or independently taken by police in respect of either incident, save as to record the result of the investigation in a COPS entry. The defendant was the officer who investigated the matter, prepared the entry and recorded it on the COPS system. 6 The COPS entry also reflects the fact that the plaintiff was either known to the defendant, or that he was otherwise recorded on information systems to which the police have access, since various details personal to him are recorded including his date of birth, his address, phone numbers and the registration number of his motor vehicle. The COPS entry also notes in the field entitled '"Warning Message": "Paul Makucha has an intense dislike for police and is a vexatious complainant. Is possibly suffering from a mental disease. Will threaten police with lawsuits." 7 It is common ground that the defendant and the plaintiff have had a fractious relationship of some duration which resulted in the defendant making application for an apprehended violence order against the plaintiff in 1997. It is not clear from the available material however, whether the role he performed in preparation of the COPS entry is entirely a matter of coincidence, whether he assumed that role at someone's direction or on his own initiative. Similarly, it is not clear whether the views reflected in the "Warning Message" were personally held by him, whether they also reflected the views of police or whether they were sourced from other information to which the defendant had access. 8 The plaintiff does not dispute that there were incidents at the medical centre in December 2006 in which he was confronted by staff, a member of the public and security officers from the shopping complex. However, in two affidavits filed in the proceedings, he maintains that he was the victim of unrestrained aggression at their hands on both occasions and that he was detained against his will. He further complains that his written complaints to police of 3 December 2006 and 13 December 2006 about the conduct of his assailants (correspondence copied to various named individuals including the Police Commissioner and the Director of the Sydney Sexual Health Clinic and other health care professionals) and further correspondence in February 2007 to the New South Wales Ombudsman and the Commissioner of Police, have not been investigated and he has received no official explanation as to why this is so. In particular, he complains that there was no COPS entry made on receipt of his complaint, a complaint which should have resulted in others being named as persons of interest and their conduct fully investigated. He complains that he was forced to take private action against his assailants and those who had falsely imprisoned him. 9 His correspondence also sets out in detail his reasons for attending the medical centre. In short they relate to his concern that he may have contracted a sexually transmitted disease as a result of a previous relationship because of his belief that the current boyfriend of his former partner's daughter had contracted the HIV virus through intravenous drug use. He knew the receptionist at the medical centre to be a friend of his former partner's daughter. He attended at that centre, and not his own doctor, with that knowledge. It would also appear that he believed his former partner to be a security officer at the shopping complex. Across the body of correspondence he also details various alleged criminal activities and criminal associates of a range of people, including the defendant and a former police officer who he claims provides security services to the shopping complex. He considers they should be investigated and charged with a range of criminal offences including inter alia drug distribution, money laundering and the distribution of pirated DVDs. The history of the proceedings

10 The relief was originally sought by summons dated 7 December 2007. As originally filed, the defendant was the only party to the proceedings. Although the primary complaint concerns his investigation of the matters the subject of the COPS entry, other relief was sought in the original summons referable to that complaint. 11 On 29 January 2008 leave was sought to file an amended summons wherein it was proposed that Andrew Scipione, in his capacity as the Police Commissioner of New South Wales, be joined as a second defendant and that the summons be amended to seek relief of various kinds against him. 12 The question of leave to amend the summons was heard by Johnson J, as a consequence of which a further amended summons was ultimately filed on 12 February 2008, but in quite different terms from the original summons and the amendments that these sought. For reasons which are neither apparent nor material to the proceedings before me the further amended summons as filed not only deleted the Police Commissioner as the proposed second defendant but substantially amended the original summons such that the only relief that remained after the matter was listed before Johnson J was as follows: "A declaration that the Defendant failed to exercise and/or improperly exercised his office and/or powers as a constable of police in respect of his function as a constable of police in the investigation of incidents concerning and/or incidental to the events occurring on 4 December 2006 and/or 11 December 2006." 13 On 26 February 2008 the defendant filed a notice of motion seeking an order that the further amended summons be dismissed as disclosing no cause of action pursuant to Part 13 Rule 4(1)(b) of the Uniform Civil Procedure Rules or, in the alternative, that it be dismissed pursuant to Part 13 Rule 4.1(a) and (c) of the Rules as being frivolous, vexatious and an abuse of the court's processes. 14 In advance of the hearing of the motion the plaintiff signalled his intention to seek leave to file a second further amended summons, the effect of which would be not only to reinstate those paragraphs that were deleted pursuant to leave that was granted by Johnson J (including joining the Commissioner of Police as the second defendant) but to seek orders and declarations of a more extensive kind to the relief that has been sought to date. 15 It was agreed between the parties that I should resolve the question of leave to amend the summons in advance of hearing the defendant's motion to dismiss it. Counsel for the first defendant formally reserved his submissions as to whether the declarations were justiciable as a matter of fact or law to the hearing of the motion to dismiss the summons although he indicated that there may need to be some reference to that underlying question when addressing whether leave to amend should be refused. The application for leave to amend the summons 16 Mr Conomos, who appears for the plaintiff, narrowed the application for leave to amend such that, in the result, the second further amended summons seeks the following declarations: 1. A declaration that the first defendant failed to exercise any/or improperly exercised his office and/or powers as a constable of police in respect of his function as a constable of police in the investigation of incidents concerning and/or incidental to the events occurring on 4 December 2006 and/or 11 December 2006 and/or matters recorded and/or wrongfully not recorded in the document entitled COPS entry E119355594, has repeatedly acted in bad faith on this occasion and on previous occasions COPS ref no. E3651852 dated 7 November 1997 ("the first declaration").

2. A declaration that the first defendant exercise his office and/or powers as a constable of police in respect of his function as a constable of police in the investigation of incidents and/or matters recorded and/or wrongfully not recorded in the document entitled COPS entry E119355594 according to law ("the second declaration").

3. A declaration that the document entitled COPS entry E119355594 and/or its contents not be published and/or disseminated to any person including members of the police until the first and/or second defendant complies with the declaration sought in paragraph 2 ("the third declaration"). 17 Mr Hutchings, who appears for the first defendant and the Commissioner of Police, resists leave being granted on a number of bases. 18 In so far as the application for leave seeks to join the Commissioner of Police, it is submitted that there is no proper basis for joining him as a party in circumstances where no relief is sought in respect of anything he has done or has failed to do. I note that only the third declaration refers to the Commissioner as the proposed second defendant and that the relief sought against him is limited to the immediately preceding declaration. That declaration does not refer to the Commissioner at all. Mr Conomos submitted that it was appropriate to join the Commissioner in any event to ensure the first defendant's compliance with the relief sought, in particular that he discharge his duties according to law. Despite the fact that the Commissioner has responsibility for the management and control of the Police Service including the "effective, efficient and economical management of the functions and activities of the NSW Police Force" (see s (8)(2) of the Police Act), I am not satisfied that his statutory obligations justify his being joined as a defendant to these proceedings whether on the basis contended for by Mr Conomos or by reference to the declarations as framed. Accordingly, leave sought to join the Commissioner of Police is refused. 19 Leave to amend the first declaration and to include the second and third declarations was also opposed by the defendant notwithstanding that the breadth of the application for leave was narrowed by counsel in oral submissions. Mr Hutchings observed, correctly, that the terms in which the proposed first declaration is drafted, up to and including the words "and/or 11 December 2006" mirrors the form of the declaration after leave was granted to amend the summons by Johnson J in February 2008, and is the form of the declaration to which the defendant's notice of motion to dismiss is directed. The defendant submitted that the balance of the proposed first declaration, namely the words "and/or matters recorded and/or wrongfully not recorded in the document entitled COPS entry E119355594, has repeatedly acted in bad faith on this occasion and on previous occasions COPS ref no. E3651852 dated 7 November 1997" add nothing by way of substance or detail to the words that precede it, save as to assert that the information was wrongly recorded or not recorded in the COPS entry and first defendant has repeatedly failed to act in good faith. Further, it is submitted that even were leave to be granted so as to include these matters, the relief that is sought by way of amendment exceeds the reach of this Court exercising the full panoply of its inherent jurisdiction to grant declaratory relief. This submission necessarily involves consideration of the primary challenge mounted by the defendant to the competence of the proceedings, a challenge which it is said is made good irrespective of the particular terms in which the declaratory relief is framed. For reasons which I will develop later in this judgment, I consider this submission is well founded and, accordingly, I refuse leave to amend the first declaration sought in the form that is proposed. 20 In so far as the second and third declarations are concerned, I am also of the view that leave ought be refused to amend the summons so as to include them in the form that is proposed. With respect to the second declaration, it is submitted that the language in which it is expressed is also beyond even the extended reach of the declaratory power of this Court, if for no other reason than it seeks a declaration that the first defendant exercise his office or powers as a constable of police in respect of an investigation in accordance with the law when no excess of power or failure to exercise any specific power is identified, and in circumstances where there is no current or continuing investigation into the incident the subject of the COPS entry. To seek leave to include in the summons for relief a declaration that the defendant conduct himself according to law is in these circumstances, so it is submitted, so vague and void of necessary content that leave to amend should be refused. I accept that submission. I am further of the view that even were the relief sought by way of an order and not a declaration it would be beyond jurisdiction given that this Court neither has the role nor function to order that police or any other statutory officer to do what he or she is required to do either by statute, or otherwise according to law, save perhaps, as an order ancillary to a finding of misfeasance in public office or other declaratory relief where the exercise of particular police powers are at issue, as for example, powers under the Law Enforcement (Powers and Responsibilities) Act 2002. 21 As the third declaration is dependent upon leave being granted in respect of the second declaration and leave to amend the second declaration is refused, leave to amend the summons to include the third declaration is also refused. 22 With leave to amend the summons refused, the first defendant's application for orders dismissing the summons falls to be determined by reference to the summons in the form in which it was filed on 12 February 2008, as set out in paragraph 11 of this judgment. The power to strike out proceedings 23 It is well established that the discretionary power to dismiss proceedings under Part 13, Rule 4(1)(b) of the UCPR as disclosing no reasonable cause of action should only be exercised in plain and obvious cases and where the defect in the plaintiff's case is patent. In this sense it is not dissimilar to the "triable issue test" in General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125. 24 The defendant submitted that the case the plaintiff seeks to advance is fundamentally defective in that it seeks relief that this Court has no jurisdiction to grant in the particular circumstances. The defendant also submits that it would be an abuse of process to permit the plaintiff to pursue relief of a kind that is either not available on jurisdictional grounds or that is so plainly untenable that it would be refused in any event. 25 The possibility of amendment is an acknowledged restraint on the power under Part 13 of the UCPR. The plaintiff did not propose amendment and for my part, and for reasons that follow, I cannot conceive of any amendment that would result in the summons surviving the challenge mounted by the defendant.

26 On the question of jurisdiction the defendant submits that despite the fact that this Court has inherent power to grant declaratory relief, a power which may be exercised whether or not consequential relief is sought (see s 75 of the Supreme Court Act 1970), for sound reasons of public policy the Court ought not exercise the jurisdiction in this case where considerations dictate that no individual member of the public should be permitted to assert a private right of the kind the plaintiff claims whether that be to enjoy the benefit of the duties and/or powers a police officer exercises in lawful discharge of his/her statutory functions, or to dictate how they should be exercised. It is submitted that this is a conclusion that follows by direct analogy from an established line of authority in Australia and in England which holds that police do not owe a duty of care to those who may be adversely affected by decisions or actions taken either in the course of a police investigation or at the prosecutorial stage (see Cran v State of New South Wales (2004) 62 NSWLR 95 and, in particular, the reference in the judgment of Santow JA to Tame v State of New South Wales (2002) 211 CLR 317 at para [34] - [39]). Both the High Court in Tame's case and this Court in Cran's case refer to the seminal authority of Hill v Chief Constable of West Yorkshire [1989] AC 53 in England (applied in Sullivan v Moody (2001) 207 CLR 562 in Australia) where what is emphasised is the overwhelming public interest in encouraging the unimpeded performance of a police officer's statutory duties and functions, the performance of which might be deflected or discouraged were an individual officer to be required to be concerned about the potential for civil action in the event that damage or loss might result from decisions made or action taken by him/her in the course of an investigation, or in the discharge of his/her day to day duties and functions. 27 The plaintiff has not persuaded me that the public policy considerations that underpin a police officer's immunity from liability in negligence are relevantly distinguishable from the same policy considerations that obtain in the context of the relief the plaintiff seeks simply because one sounds in damages and one does not. To the contrary I regard them as of equal force. It is beyond question that there is an identifiable public interest in police officers contributing to the maintenance of a permanent record of information either received from the public or gathered from their own researches and inquiries, including, where necessary and appropriate, their own genuinely held assessments of people and situations the subject of report, and that the COPS system is designed to achieve that objective. The plaintiff does not submit otherwise. What the plaintiff submits however is that the entries in such a system should nevertheless be susceptible to declaratory relief, that this is an appropriate case for the court to consider granting that relief, and that for those reasons the defendant's application for the summons to be dismissed should be refused. 28 The plaintiff could not take this Court to any authority where declaratory relief of the kind sought here has been granted or even considered. Moreover, I am satisfied that the authorities to which I was referred by Mr Conomos are plainly distinguishable from the instant case in any number of respects (see for example Ainsworth v Criminal Justice Commission (1992) 175 CLR 564). Irrespective of whether the dearth of authority is as a reflection of the investigative immunity the police enjoy in the context of tortious liability or whether it is a reflection of the considerations that otherwise mark the boundaries of the judicial power to grant declaratory relief, the defendant takes considerable comfort from the fact that the plaintiff could cite no precedent of any kind in support of the relief he seeks.

29 I do not consider that there ought to be a blanket prohibition on the invocation of the court's declaratory power where discharge of the statutory powers and responsibilities of a police officer are at issue, since there may be circumstances where it is appropriate for the court to consider granting such relief in the form of a declaration in an appropriate case. The very breadth of the discretionary power to make binding declarations of right signals to my mind that it would be inappropriate to foreclose on a category where the power might be properly exercised by reference to the class of persons it might bind and because of the duties and functions those people perform. The fact that the police are immune from an action in negligence in the discharge of their statutory powers and responsibilities does not persuade me to conclude otherwise since the very nature of the action in both instances, and therefore the preconditions to relief, are materially different. 30 I am, however, satisfied that in circumstances where a particular entry in the COPS system maintained by Police Service is said to cause a named or identified person discomfort, disquiet or irritation (whether because the facts recorded or opinions expressed are overstated or misstated, whether that be through carelessness or inadvertence) that the interest that an individual member of the public might have in having the record declared erroneous, inaccurate or outdated must be subordinate to the greater public interest in the COPS system being beyond the scrutiny of the court other than in clearly defined circumstances, for example an action in defamation or administrative review of the Commissioner's decision to refuse to intervene under the complaints procedure provided for in Part 8A of the Police Act. In this way public confidence in the role the police perform in law enforcement generally is promoted by minimising the circumstances in which their attention might be deflected from the routine task of gathering and recording information and intelligence, and ensuring, in appropriate circumstances, the responsible dissemination of such information in the public interest. It is not necessary for me to decide whether the complaints regime under the Police Act or its operation impliedly excludes the jurisdiction to grant declaratory relief of the kind the plaintiff seeks since I am satisfied that the exercise of jurisdiction should be refused for other reasons. I do note, however, that the plaintiff lodged a complaint with the Commissioner which was dismissed. 31 Even were my approach to the question of jurisdiction to be in error I am firmly of the view that the particular declaratory relief sought in this case would necessarily be refused. I am conscious in so saying that the exercise of a judicial discretion cannot easily be presaged however, as Brereton J observed in Commonwealth of Australia v BIS Cleanaway Limited [2007] NSWSC 1075, there are identified categories of case in which the court would decline to grant declaratory relief: "26 …there are established categories of case in which the Court will generally decline, as a matter of discretion, to exercise its undoubted power to make a declaration. The importance of the established categories is that they facilitate a consistent and principled approach to the exercise of the discretion." 32 Of the two categories to which his Honour referred, the plaintiff's action falls into both. The first is where the issue involved is purely theoretical with no potential to quell any future disputes and the second where no good purpose would be served by granting the declaratory relief, in the sense that there are no foreseeable consequences, whether in damages or otherwise, and where the best possible outcome might be to prompt legislative or administrative action (see Rivers v Bondi Junction-Waverley RSL Sub-Branch Ltd (1986) 5 NSWLR 362). 33 I am satisfied that the defendant has made out its case under Part 13, Rule 4(1)(b) in that the plaintiff's summons discloses no reasonable cause of action. 34 I also note in that connection that the summons filed on 13 February 2008 seeks an order for costs, including the costs of a private prosecution the plaintiff launched against those he claimed assaulted him in December 2006. No particular submissions were directed to whether that relief that was sustainable even were the costs of these proceedings to be recoverable by the plaintiff if the relief sought by the summons was granted.

Orders

1. The plaintiff's summons filed on 13 February 2008 is dismissed.
2. The plaintiff is to pay the defendant's costs.

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