Meredith v State of New South Wales

Notice of Motion

1. On 12 December 2023, the defendant filed a Notice of Motion seeking, relevantly, the following relief: "1. Pursuant to UCPR 14.28(1)(b), or in the exercise of the inherent jurisdiction of the Court, paragraph 68A to 68D of the Further Amended Statement of Claim be struck out. 2. In the alternative, the plaintiff be ordered to replead paragraph 68A to 68D of the Further Amended Statement of Claim pleading and particularising the 'practise or pattern of conduct' alleged by [a date to be fixed]."
2. At the hearing of the proceedings, counsel for the State informed the Court that the State was, in substance, seeking an order that the paragraphs be struck out. He indicated that the State did not object to an order that the plaintiff be permitted to replead those paragraphs, in the event that they were struck out.
3. The pleading, the subject of the Motion, is the Further Amended Statement of Claim filed on 30 March 2023, pursuant to leave being granted on 16 March 2023 ("FASOC").

Further Amended Statement of Claim

1. The relevant paragraphs, the subject of the Motion, are in the following form: "CONDUCT OF STATE RELEVANT TO EXEMPLARY DAMAGES 68A. At all material times, it was the case that: 68A.1 most music festivals conducted in NSW in the period from 22 July 2016 to 21 July 2022 were policed by substantial detachments from New South Wales Police for the purpose of, amongst other things, detecting prohibited substances in the possession of attendees; 68A.2 strip searches were one of the primary means Police Officers were directed to use to carry out the purpose described in subparagraph 68A.1; 68A.3 strip searches were an extremely intrusive police procedure that: (a) were likely to be humiliating for the person searched; (b) could give rise to both lasting and immediate traumatic responses; and (c) could result in the commission of the torts of assault, battery, and false imprisonment; 68A.4 in the period between at least 2016 and 2019, there developed a practice or pattern of conduct by Police Officers of carrying out strip searches of attendees at music festivals as a matter of routine and not in circumstances lawfully justified by the provisions of LEPRA concerning strip searches as pleaded in paragraphs 15, 16, 17 and 18 of this Further Amended Statement of Claim. 1. Particulars 2. The practice or pattern of conduct referred to is described in: paragraphs 15, 16, 17 and 18 of this Further Amended Statement of Claim; the Law Enforcement Conduct Commission (LECC) report on Operation Brugge dated 8 May 2020 at paragraphs 5.6‑5.10, 5.12-5.27, 5.35-5.36; the LECC report on Operation Gennaker dated 8 May 2020 at paragraphs 5.10-5.18, 5.26-5.37; the LECC report on Strike Force Blackford dated 21 July 2020 at paragraphs 3.13, 6.18-6.22, 6.28-6.29; the LECC's report on the "Inquiry into NSW Police Force strip search practices" dated 15 December 2020 at paragraphs 3.3.2.1, 3.5, 3.5.2, 3.5.2.1, 4.1, 5-5.2; and the NSW Coroner's report on the "Inquest into the death of six patrons of NSW music festivals" dated 8 November 2019 at paragraphs 422-427, 428, 4511-453, 455-456. Further particulars will be provided following discovery. 68B. The State, by the senior officers of the New South Wales Police Force responsible for authorising the use of strip searches at music festivals (Senior Officers): 68B.1 at all material times referred to in the preceding paragraphs - was aware of the circumstances in sub-paragraphs 68A.1 to 68A.3; 68B.2 at all material times referred to in the preceding paragraph - was aware that the performance of strip searches was the subject of training given to Police Officers and supervision by Senior Officers; and 68B.3 from no later than October 2018 - was or ought reasonably to have been aware of the circumstances in sub-paragraphs 68A.4. 1. Particulars as to sub-paragraphs 68A.1 to 68A.3, the matters were within the actual knowledge of the Senior Officers at all material times; as to sub-paragraphs 68A.4, the Senior Officers ought reasonably to have been aware of the said practice by reason that: Senior Officers were responsible for the training and supervision of Police Officers and accordingly ought to have been monitoring and correcting the adequacy of the training and supervision in ensuring compliance by Police Officers with the provisions of LEPRA concerning strip searches; it was the subject of widespread media commentary; it was the subject of complaints by members of the public; at a time known to the State but not to the Plaintiffs - it was identified by the State as a sufficiently serious matter that a review or enquiry (of the kind that ultimately ensued as the LECC Inquiry into strip searches in October 2018) might be in prospect or was under consideration. Further particulars will be provided following discovery. 68C. Despite the awareness pleaded in the preceding paragraph, at the material times the State, by its Senior Officers: 68C.1 failed to exercise reasonable skill and care to ensure that training delivered to the Police Officers tasked to police music festivals was adequate to ensure the Officers: correctly observed the provisions of LEPRA concerning strip searches; implemented strip searches without committing assault, battery or false imprisonment; 68C.2 failed to exercise reasonable skill and care to ensure that the said Police Officers were adequately supervision in connection with operations at music festivals to ensure they: correctly observed the provisions of LEPRA concerning strip searches; implemented strip searches without committing assault, battery or false imprisonment. Particulars The Plaintiff relies upon the LECC's report on its "Inquiry into NSW Police Force strip search practices" dated 15 December 2020. 68D. The matters set out in the preceding paragraph were a cause of the said Police Officers: 68D.1 failing correctly to observe the provisions of LEPRA concerning strip searches; and 68D.2 tortiously assaulting, battering and false imprisoning the Plaintiff and group members as alleged herein."
2. It is relevant and important to note that the phrase "… practice or pattern of conduct" used in [68A.4] is further explained by reference to specific paragraphs of four published reports of the Law Enforcement Conduct Commission ("LECC") into the conduct of police officers undertaking strip searches. As well, a report of the NSW Coroner, which would be available to the NSW Police, is also referred to at the identified paragraphs.
3. The full reports were not tendered in evidence on the hearing of this Motion, but the defendant annexed extracts of the nominated paragraph to its written submissions.
4. In paragraph 71 of the Further Amended Statement of Claim ("FASOC") the plaintiff claims exemplary damages.
5. In paragraph 74 she sets out "Particulars of Exemplary Damages" which are in the following form: "74. The conduct complained of: 74.1 was performed in contumelious disregard of the Plaintiff's and Group Members' rights and feelings; 74.2 involved oppressive use and/or abuse of Police powers; 74.3 was undertaken in flagrant disregard for the law; 74.4 was intentional; 74.5 was unreasonable, excessive and unjustifiable; 74.6 was worsened as it was performed by Police officers, who are paid and entrusted to uphold the law and defend the rights and freedoms of the citizens of New South Wales, who acted in stark indifference to their duties and obligations; 74.7 warrants exemplary damages being awarded as it was a pattern of conduct that was: (a) carried out by members of the NSW Police Force over a period of at least four years from 2016 to 2019 as pleaded and particularised at paragraphs 68A above; (b) a result of the failures by Senior Officers alleged in paragraph 68C; 74.8 warrants exemplary damages being awarded to reflect society's disapprobation of such conduct; 74.9 warrants exemplary damages being awarded to mark the Court's condemnation of such behaviour and act as a salutary deterrent to: (a) Police Officers; (b) Senior Officers; 74.10 warrants exemplary damages to ensure: (a) Police Officers in positions of command are not ordering unlawful searches of people attending music festivals;
   (b) Senior Officers take reasonable care and skill to ensure that Police Officers are adequately trained and supervised in the performance of their duties according to law; 74.11 warrants exemplary damages being awarded in sufficient quantity to bring home, to those responsible for the conduct of Police Officers, that Police Officers must be properly trained and directed as pleaded and particularised at paragraphs 68B and 68C and disciplined to ensure abuses of this kind do not occur."

Pleading Principles

1. In considering the submissions to which I will shortly turn, it is necessary to keep in mind the appropriate legal principles dealing with pleadings and, in particular, the role of particulars within those pleadings.
2. At the heart of these principles are the following: 1. Pleadings must state, with sufficient clarity, the case to be met by a defendant. They define the issues and ensure basic procedural fairness: Banque Commerciale SA v Akhil Holdings Ltd [1990] HCA 11; (1990) 169 CLR 279; 2. Issues defined by pleadings and particulars provide a basis for the determination of the admissibility of evidence: Dare v Pulham [1982] HCA 70; (1982) 148 CLR 658 at 664; 3. Proper pleading is of fundamental importance in assisting the Court to achieve the overriding purpose of facilitating the just, quick and cheap resolution of the real issues in the proceedings as articulated by s 56 of the Civil Procedure Act: McGuirk v University of NSW [2009] NSWSC 1424 at [24]; 4. In representative proceedings, depending upon the stage that the proceedings have reached, the pleadings expressed at a relatively high level of generality may be permissible: Philip Morris (Australia) Ltd v Nixon [2000] FCA 229; (2000) 170 ALR 487at [131]-[133].
3. In considering the application of these general principles, it is also important to keep in mind that, in these proceedings, the defendant will be in a better position to know the details of the police operations and deployments which in fact occurred at the Music Festivals provided to police officers prior to their participation in the relevant operations. Further, at least at this stage of the proceedings, many of these details will be unknown to the plaintiff.

Submissions of the Defendant

1. The defendant submits that paragraphs 68A to 68D are, on their face, deficient. It submits that the terms used are vague, or susceptible to more than one meaning, that material facts are omitted, that the paragraphs present "rolled up" conclusions, that the paragraphs are vague, or at least unclear because of reference to other documents (including Inquiry reports), that they contain a significant amount of narrative material because of those references, with the consequence that the paragraphs present a confusing mix of a variety of alternatives.
2. This description of those paragraphs, the defendant submits, demonstrates that, in accordance with the ordinary principles of proper pleading, that this part of the FASOC is embarrassing because it is confusing, it causes prejudice and does not reveal with clarity what the case is which the State is required to meet.
3. Dealing with the paragraphs on an individual basis, the defendant submits with respect to paragraph 68A that: 1. the phrase "most music festivals" which it is said were policed by "substantial detachments from NSW Police" is unduly vague and susceptible of various meanings. The State submits that, given that the music festivals have been specifically nominated, the pleading is capable of greater particularisation and ought to be further particularised; 2. the use of the phrase "practice or pattern of conduct" is embarrassing. It submits that there are no material facts pleaded as to what constitutes the practice or pattern of conduct. In particular, the State submits that the use, in conjunction with that phrase, of the words "as a matter of routine" mean that there is significant confusion deriving from this paragraph; and 3. the material facts are not pleaded at all, let alone at a high level of generality of the kind that might be appropriate for a representative proceeding.
4. The State notes that references to further particulars provided by the plaintiff which refer it to reports of the LECC and the NSW Coroner, do not constitute an adequate particularisation of material facts supporting, or grounding, the claim for exemplary damages. The State also submits that particulars cannot be a substitute for the pleading of material facts.
5. With respect to paragraph 68B, which in substance pleads the knowledge of the State by the senior officers of the NSW Police Force who were responsible for authorising strip searches at music festivals, the State submits that the use of the description "senior officers" is, without more, a term of vagueness which is susceptible to many meanings. In particular, the State draws attention to the fact that the use of that term, in conjunction with the pleading of authorisation of the use of strip searches at music festivals, amounts to a nonsense because it is the legislation which authorises the carrying out of strip searches and provides the preconditions for such strip searches to be lawfully undertaken.
6. The State also submits that the use of the phrase "… subject of widespread media commentary …" together with the pleading that a review or an inquiry "… might be in prospect or was under consideration …" were "hopelessly vague".
7. Other criticisms are made of, in essence, the generality with which this paragraph is pleaded and the manner of the pleading of the allegation of actual knowledge within the Police Force.
8. With respect to paragraph 68C, which deals, in general terms, with the failures of senior police officers to act appropriately having regard to their state of knowledge, the State submits that what is in truth pleaded is a failure by the "senior officers" to exercise reasonable skill and care to ensure that the relevant statutory obligations with respect to strip searches were undertaken. The failures are said to be in the provision of adequate training and adequate supervision of operations at music festivals. The State submits that these are, in substance, broad allegations of negligence, which do not contain any of the requisite elements of such a tort, which result in an unintelligible pleading which effectively conceals a cause of action in negligence.
9. As well, the State points to the breadth of the pleading which it submits, in essence, involves an allegation of the breach of any and/or all of the legislative requirements relating to strip searches without, the State submits, any factual basis pleaded for such allegations.
10. Particular difficulties are identified with the use of the term "ensure", the effect of which, it is submitted, is to allege that the "Senior Officers" must have failed to act reasonably because the "appropriate" result of police officers complying with the law had not been achieved.
11. The State submits that that the overall lack of clarity in this paragraph is exacerbated because there is no pleading of any relevant counter-factual circumstances setting out what the senior officers ought to have done in the exercise of reasonable care.
12. The final paragraph, 68D, is a pleading of "causation".
13. The State submits that the use of the term "failing correctly to observe" with respect to the legislative provisions is embarrassing because it is not the same as an allegation of "failing to 'comply with the provisions' of the legislation".
14. The State further submits that one of the difficulties with this pleaded allegation is that it is vague because no time frame is identified, and there is no linking of any particular act or omission by the senior officers individually or collectively to the tortious conduct of the undisclosed police officers undertaking the various strip searches, so as to anchor the pleading of causation to the conduct of the senior police officers.
15. The State also submits that the reference in paragraph 68D.2 to the torts committed against group members, the details of which are not specifically pleaded, serve only to exacerbate an already confusing pleading.

Submissions of the Plaintiff

1. It is unnecessary to repeat at length the submissions of the plaintiff. It is sufficient to note that the plaintiff contended, having regard to the contextual facts and circumstances surrounding this representative proceeding, that the pleadings were adequate and appropriate, and did not cause any prejudice to the State by reason of any generality or vagueness, if such existed.

Discernment

1. The challenged paragraphs deal only with a claim for an award of exemplary damages. The State did not suggest that such a claim could not be made nor that the claim being made was itself an abuse of process.
2. In order to consider the State's arguments, it is appropriate to consider what a claim for exemplary damages may include.
3. In Adams v Kennedy [2000] NSWCA 152; (2000) 49 NSWLR 78 at [36], Priestley JA (with whom Sheller and Beazley JJA agreed) said with respect to an award of exemplary damages which was challenged on appeal, this: "[The] figure should indicate my view that the conduct of the [police officer] defendants was reprehensible [and] mark[ed] the Court's disapproval of it. The amount should also be such as to bring home to those officials of the State who are responsible for the overseeing of the police force, that police officers must be trained and disciplined so that abuses of the kind that occurred in the present case do not happen."
4. His Honour's remarks do not specifically identify the "officials of the State" who were "responsible for the overseeing of the police force", nor did he suggest that an award of exemplary damages was unavailable in the absence of specific identification.
5. These remarks were to the same effect as Lord Hutton's remarks in Kuddus v Chief Constable of Leicestershire Constabulary [2002] 2 AC 122 at 149, where his Lordship said: "In my opinion, the power to award exemplary damages in such cases serves to uphold and vindicate the rule of law because it makes clear that the Courts will not tolerate such conduct. It serves to deter such actions in future as such awards will bring home to officers in command of individual units that discipline must be maintained at all times."
6. In NSW v Ibbett [2006] HCA 57; (2006) 229 CLR 638, the High Court (Gleeson CJ, Gummow, Kirby, Heydon and Crennan JJ) rejected an attack by NSW on the decision of Priestly JA in Adams, saying at [54]-[56]: "54. The approach taken in cases such as Adams … should be accepted. It is supported by the observations of Lord Devlin and Lord Hutton to which reference has been made earlier in these reasons. … 55. First, the course of development over the last two and a half centuries of the law respecting Crown liability in tort does not support attention to the financial means of the miscreant public officers as a significant and limiting determinant of the quantum of liability. … 56. Secondly, the New South Wales legislative reforms do not require, in obedience to a 'master's tort', theory determination solely of what would be an appropriate award of exemplary damages against the police officers to the exclusion of considerations affecting the State itself…"
7. The High Court upheld the approach which permitted a court to consider in formulating an award of exemplary damages, not just the conduct of an individual police officer, but of those who were responsible for that conduct.
8. It follows from these authorities that it is open to the plaintiff to claim, as she does in paragraphs 68A through to 68D of the FASOC, that conduct on the part of senior officers of the police force can form a part of the factual matrix relevant to the assessment of a claim for exemplary damages. This includes senior officers who were responsible for, or perhaps who have given directions with respect to, the way in which attendees at music festivals are to be searched, including where and when searches are to take place, or else who have been responsible for the training and education of, or lack of training and education of, police officers who are going to implement the approach to attendees at the music festival.
9. The complaints articulated at [17] above centre upon the absence of the use of precision in the language chosen, particularly where it is said that there is no pleading of material facts which then makes plain what the imprecise language means.
10. Three things need to be kept in mind in considering these complaints. The first is that the impugned pleadings are not articulating a stand-alone cause of action in tort. They are stated to be, and are, particulars of conduct relevant to the plaintiff and group members' claim for exemplary damages. The second matter is that they are particulars given, at an early stage of representative proceedings, which puts the defendant on clear notice that the claim for exemplary damages will, in addition to the conduct of the individual police officers concerned, include the conduct of those whose actions caused, or else failed to prevent, the offending conduct at the heart of the proceedings.
11. The third matter is that what was or was not done by way of training, supervision and the conduct of operational orders is well known to the defendant. It presently has more knowledge about all these matters than does the plaintiff. Its knowledge extends to each of the nominated music festivals. Given that the NSW Police Force is a structured and disciplined body, the defendant's knowledge can be taken to include the level, position or rank of the police officers responsible for the operations being undertaken at the nominated music festivals. To require the plaintiff's particulars to be more specific, at this stage of the proceedings, is unrealistic.
12. Having regard to the nature and context of the proceedings, I do not accept that the pleadings which, in essence, constitute particulars of conduct, are vague, and likely to give rise to any confusion and thereby constitute an abuse of process. The defendant, in substance the NSW Police, know exactly who the senior officers were who were responsible for the conduct of policing operations at the music festivals nominated as part of the proceedings in whichever police district those festivals occurred. Their records would note which police officers held which positions and which police officers were allocated which duties. As well, police records would note, either by reference to any training actually conducted, or else by reference to job descriptions, those senior officers responsible for the training and supervision of police officers who were undertaking the policing tasks at the nominated music festivals.
13. Having regard to the context, namely the provision of particulars of a claim for exemplary damages, I do not accept the State's submissions that the use of either of the phrases "substantial detachments from NSW Police" or "senior police officers" is vague. The fact that there is no specification by quantity, rank, designation or by job title or description does not lead to an abuse of process because it is not a matter of attributing fault to any particular senior officer or identified officers. The description is sufficient to bring the claim for exemplary damages within the principles described above.
14. I am equally unpersuaded that the use of the phrase "practice or pattern of conduct" is productive of any difficulty for the State. The phrase is no more than an overarching description given to the totality of individual conduct by police officers, which cannot be explained as a mere coincidence. The provision of further particulars by reference to specific paragraphs of published reports by the LECC, or the NSW State Coroner, are more than adequate for the State to understand and assess the claim for exemplary damages being made against it. I am unpersuaded that an abuse of process has been demonstrated.
15. It is inevitable in representative actions that some pleadings will be more broadly expressed than they will be in respect of individual actions. This does not mean that they constitute an abuse of process.
16. I also note that there was no evidence which suggested that there was any actual prejudice to the defendant from such vague and imprecise language. Whilst it is not necessary for such evidence to be led in order to establish abuse of process in pleadings, there are circumstances in which such evidence may powerfully demonstrate an abuse of process.
17. The State's submissions with respect to paragraph 68B of the FASOC have some similarities with it's submissions with respect to paragraph 68A. The vagueness and lack of precision about the term "senior officers" and "widespread media commentary" in my view, when considered in the context of the pleading, do not amount to an abuse of process. It is a publicly known fact that the NSW Police, at all relevant times, had a media unit, the role of which included the monitoring of media publicity and commentary on the activities of the NSW Police. If there was "widespread media commentary" as alleged in paragraph 79 B.3(b)(ii), then such media commentary would have come from the attention of the media unit and those officers to whom that unit passed on the material or a summary of it. The generality of the pleading is not an abuse of process, and the State is not prejudiced by it.
18. Generally, I am of the opinion that the attack on paragraph 68B fails for reasons similar to those expressed with respect to paragraph 68A. There is an exception to that conclusion which relates to sub-paragraph 68B.3(b)(iv). The terms of that sub-paragraph allege, as a particular of the actual or constructive knowledge of the defendant, that it knew at an unspecified time that a review or inquiry (of a kind similar to an LECC inquiry) "… might be in prospect or was under consideration".
19. This sub-paragraph contains many alternative possibilities which are not capable of being usefully narrowed by reference to a more precise time. It refers to an unascertained state of knowledge i.e., that the inquiry might be in prospect, or was under consideration presumably by people other than senior police officers. This part of the pleading is, I am satisfied, an abuse of process.
20. With respect to paragraph 68C, it is to be observed that the two sub-paragraphs are pleaded in a similar way: one addressing the inadequacy of training, and the other addressing the inadequacy of supervision. The State's submission that a further and separate tort of negligence is being apparently advanced cannot be accepted. The use of the phrase "… failed to exercise reasonable skill and care" comes within that part of the pleading referring to the plaintiff's and group members' claim for exemplary damages. In that context, it is no more than a qualitative description of the inadequacy of police conduct of a kind sufficient to permit an award of exemplary damages. The pleading is not, contrary to the State's submissions, unintelligible. Because this is not a pleading of a stand‑alone cause of action in negligence, it is unnecessary for the plaintiff to, and it would be inappropriate for her to, plead any counter-factual circumstances.
21. I am not satisfied that paragraph 68C of the FASOC amounts to an abuse of process.
22. Finally, it is necessary to consider paragraph 68D of the FASOC, which is a pleading that the matters in the previously pleaded paragraphs, which are the subject of this judgment (being paragraphs 68A, 68B and 68C of the FASOC), "were a cause …" of the conduct of the police officers who conducted the strip searches which are the subject of the claim. The pleading of causation is in a common form - the conduct in the identified paragraphs was a cause of the torts committed for which damages are sought. Given that I have not been persuaded, except for sub-paragraph 68B.3(b)(iv) of the FASOC that there is any vagueness or uncertainty to amount to an abuse of process in paragraphs 68A, 68B and 68C of the FASOC, I am unable to conclude that paragraph 68D is inappropriately pleaded as the defendant contends.
23. The defendant has failed to satisfy me that, with the exception of paragraph 68B.3(b)(iv) of the FASOC, the pleading, the subject of the Motion, ought to be struck out.
24. For these reasons, I would make the orders set out below.

Costs

1. This was a separately argued Notice of Motion. Costs should follow the event. I do not regard the success of the defendant on one small particular in paragraph 68B of the FASOC as justifying any other order for costs.

Orders

1. I make the following orders: 1. Paragraph 68B.3(b)(iv) of the Further Amended Statement of Claim be struck out. 2. Grant leave to the plaintiff to re‑plead that paragraph providing that any further pleading be filed and served within 28 days of the date of this judgment. 3. Otherwise dismiss the Notice of Motion filed 12 December 2023. 4. Defendant to pay the plaintiff's costs of the Notice of Motion filed on 12 December 2023.

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