Michael Kevin Dumon v State of NSW; Amanda Matthews v State of NSW; Remia Dumon v State of NSW; Mikayla Dumon v State of NSW; Iziah Dumon v State of NSW; Savannah Dumon v State of NSW
Each of these matters was fixed for a two week trial commencing 20 June 2016. By Notices of Motion filed 15 June 2016 the plaintiffs sought leave to rely upon amendments to all Statements of Claim. The Notice of Motion at prayer 2 sought production of documents in compliance with subpoenas issued on the defendant on 24 July 2015 and 30 July 2015 but that prayer was not pressed in any of the matters.
The plaintiffs relied upon the supporting affidavit of the solicitor Mr Wesley Ranson. The significant fact for the purposes of this application is that Senior Counsel for the plaintiffs, when the matter first came before me on 20 June 2015, candidly stated that the matter could not appropriately proceed for the plaintiffs in the absence of amendments to the Statements of Claim.
On the first return date on 20 June 2015, following hearing the defendant's objections to leave to amend, I made the following orders:
1. Hearing vacated.
2. The plaintiff to serve a proposed amended Statement of Claim in respect of each plaintiff upon the defendant within 14 days. (Other orders.)
Order 2 reflected the concession of the plaintiffs that amendment of the Statements of Claim, further to that contained within the then proposed amendments to the Statements of Claim, was required.
When the matter returned before me on 7 July 2016 the defendant opposed the proposed amendments to the Statements of Claim which had been served upon the defendant in the interim. In the respective matters the proposed amended Statement of Claim for present consideration are entitled:
In the matter of Michael Dumon v State of New South Wales Further Amended Statement of Claim.
In the matter of Amanda Matthews v State of New South Wales Further Amended Statement of Claim.
In the matter of Remia Dumon by her tutor Amanda Matthews v State of New South Wales Amended Statement of Claim.
In the matter of Mikayla Dumon by her tutor Amanda Matthews v State of New South Wales Amended Statement of Claim.
In the matter of Iziah Dumon by his tutor Amanda Matthews v State of New South Wales Amended Statement of Claim.
Helpfully senior counsel for the defendant dealt with the six Statements of Claim by identifying the Further Amended Statement of Claim in the Michael Dumon matter as representative of the proposed pleading on behalf of Amanda Matthews and the Amended Statement of Claim in the matter of Remia Dumon as representative of the proposed pleadings on behalf of Mikayla and Iziah.
I understand from reference made by Senior Counsel for the defendant to Michael Dumon and Amanda Matthews as the adults, that each of the plaintiffs Remia, Mikayla and Iziah are minors.
The plaintiff acknowledges the lateness of the application to amend. On 20 June 2015 I made costs orders in that regard. The defendant does not raise any argument concerning passing of the period for limitation of action. The plaintiffs rely upon Section 64 of the Civil Procedure Act 2005 (the "CPA"), in particular Section 64(2), that the court consider the dictates of justice in allowing amendments made for the purpose of determining the real issues in the proceedings.
In my opinion the interests of justice and the overriding purpose compel a grant of leave in each of the matters for the plaintiff to proceed on the proposed pleading and I will make orders accordingly. In coming to this conclusion I have considered the objections raised by the defendant which objections fall into two principal categories as follows:
A. The proposed amendments are embarrassing, frivolous or bound to fail; and
B. The causes of action are insufficiently pleaded.
As to A - embarrassing or frivolously pleaded:
The defendant effectively argued that the plaintiffs' claims are so clearly deficient that it would be inappropriate to allow the matter to proceed on the basis of the amendments: General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 at [129] to [130]; Alamdo Holdings Pty Ltd v Australian Wood Furnishings [2006] NSWSC 1073 at [10] to [12]. In my opinion, the causes of action described in the proposed pleadings are not, on the pleading, clearly demonstrated to be untenable or doomed to failure.
I deal with each of the defendant's arguments in Category A as follows:
(a) That the causes of action pleaded necessarily challenge the validity of the search warrant and without an application to quash a search warrant, which application may only be brought in the Supreme Court of New South Wales; are an impermissible collateral attack on the sufficiency of the materials that were relied upon by the Registrar in issuing the search warrant.
(b) (i) In my opinion the proposed amended pleadings describe causes of action concerning the administrative or ministerial function of collection and provision of information for the purpose of the issue of the search warrant by the Registrar but do not challenge the judicial exercise of discretion of the Registrar when issuing the warrant nor the validity of the warrant on its face: Polley v Johnson [2015] NSWCA 256 at [44] to [46]. It is at least arguable that the proposed amendments to Statements of Claim do not challenge the validity of the warrant per se. Nothing in R (Cth) v Baladjam and Ors [No 28] [2008] NSWSC 1449 per Whealey J at [40] or in Ousley v R (1997) 192 CLR 69, which cases were relied upon by the defendant, is to the contrary.
(b) (ii) The defendant conceded that there is no proposition of a general immunity from suit for tortious conduct applying to police. Senior Counsel for the defendant illustrated that an officer who causes damage by driving negligently on his way to an accident can be sued. The defendant proposition was that police officers do not owe a duty of care to particular members of the public for conduct either in the course of investigating crime such as by provision of information toward the issue of a warrant, or in the exercise of the warrant. I was taken to NSW v Tyszyk [2008] NSWCA 107 particularly at [116] to [121] and [128]: McMaster [2015] NSWCA 228 at [36] to [39]; see also Dowse v State of NSW [2012] NSWCA 337 at [52].
(b) (iii) Applying the principles set out in the above cases, In my opinion the particulars of negligence in each of the proposed Statements of Claim identify allegations of breach in the investigation of, provision of information to and as it is put, the organising and arranging of the issue of, the warrant as to describe an arguable case of breach of duty in that regard there being no blanket immunity.
(b) (iv) Applying the principles set out in the above cases, in my opinion, the particulars of negligence in each of the proposed Statements of Claim identify allegations of tortious conduct during the "raid" as to describe an arguable case of breach of duty in that regard.
(c) (i) The defendant argued that in relation to the claims by the children, Remia, Mikayla and Iziah, allegations of trespass to land are unarguable because only a person with exclusive possession of land can maintain an action in trespass. The defendant relied upon Exhibit 3 being the Residential Tenancy Agreement concerning the subject property [xxx] Riverstone made 24 May 2012. The defendant pointed to the tenants being identified only as Michael Dumon and Amanda Matthews. The defendant proposition being that not having exclusive possession pursuant to the agreement for residential lease, the children were only licensees and could not have title to sue for trespass of land. The defendant relied on what was said by Windeyer J in Radaich v Smith & Anor (1959) 101 CLR 209 at 222. In that passage, his Honour differentiated between the rights of a licensee and the rights of a tenant, the distinction being that a tenant has an "interest in land as distinct from a personal permission to enter the land and use it for some stipulated purpose or purposes". I note that his Honour continued:
"And how is it to be ascertained whether such an interest in land has been given? By seeing whether the grantee was given a legal right of exclusive possession of the land for a term or from year to year or for a life or lives. If he was, he is a tenant. And he cannot be other than a tenant, because a legal right of exclusive possession is a tenancy and the creation of such a right is a demise."
(c) (ii) In my opinion that statement of principle by Windeyer J does not make the claim of trespass unarguable for the children in this case, on the basis of the proposed pleading and taking, as I must do, the allegations pleaded at their highest. In this regard I note that his Honour also said at the same page:
"Whether the transaction creates a lease or a licence depends upon intention, only in the sense that it depends upon the nature of the right which the parties intend the person entering upon the land shall have in relation to the land. When they have put their transaction in writing this intention is to be ascertained by seeing what, in accordance with ordinary principles of interpretation, are the rights that the instrument creates."
(c) (iii) In the present case, the Residential Tenancy Agreement expresses itself to be subject to the Residential Tenancies Act (NSW). It provides for a term of 6 months. Pursuant to that Act a "tenant" is a person who has a right to occupy residential premises under a Residential Tenancy Agreement, or a person to whom such a right passes by transfer or operation of law: Section 3. The Residential Tenancy Agreement provides for possession of residential premises which pursuant to the Act means, premises intended for uses of residents. In accordance with the Minors (Property and Contracts) Act (NSW) 1970 a disposition of property includes the very broad definition: a conveyance, … appointment, … lease, creation of a trust and the grant of a power in respect of property whether having effect at law or in equity. A minor and a minor's participation in a "civil act" includes in relation to the grant of a licence, an act relating to rights or obligations or to a chose inaction and an assent or consent to, acquiescence in, or acknowledgment or waiver of any matter by a person affecting the person's rights or obligations under a contract or relating to property. Pursuant to this latter Act, a child may participate in a civil act by their agent. In this case that agent might be Michael Dumon or Amanda Matthews or each of them. The parties did not address the present law of tenancy.
(c) (iv) In (c)(iii) I do not mean to provide a full exposition of what might be arguable bases for allegations of trespass by the children on the facts of this case; save to refer to the nature of the Residential Tenancy Agreement and those statutory provisions as included among the rights of the children as minors leading me to be not satisfied that in the circumstances of this case, as they may be exposed by the evidence, it would be unarguable that the child plaintiffs enjoyed sufficient possession to advance causes of action in trespass.
As to Category B - insufficiently pleaded:
1. At paragraph 4 of the proposed Amended Statement of Claim of Mr Michael Dumon, the plaintiff pleads vicarious liability in relation to the actual omissions of police officers relying on sections of the Crown Proceedings Act and the Law Reform (Vicarious Liability) Act. I notice that in the proposed Amended Statement of Claim of Remia, some but not all of the same statutory provisions are pleaded at paragraph 5. Nevertheless, the argument did not proceed on their being any difference between the two pleadings and the other adult and child pleadings which I was informed are in like form. In those paragraphs the plaintiffs plead vicarious liability of the defendant for the acts and omissions of the police officers.
2. Counsel for the defendant, in response to my request that he address the pleading of vicarious liability, informed me that the State concedes vicarious liability for its servants so long as it is in the course of duty but that - and he emphasised this to be the real concern of the State - without specificity of which police officers allegedly performed the tortious acts particularised and without more specific particulars in relation to those acts; the State could not know whether it would defend the individual officers on the basis of acceptance or denial of a tortious liability.
3. The defendant identified the following particulars of vicarious conduct in the "raid" as expressed in the proposed Amended Statement of Claim of Amanda Matthews and as repeated in other Statements of Claim:
paragraph 7(h) "Directing (while holding firearms) all the members of the Dumon Family to behave in specific ways; and:
paragraph 7(l) "Touching the Plaintiff".
The defendant says that it should not be forced to request further and better particulars of these allegations at this late stage, the trial having been vacated.
1. The plaintiffs reply that it is within the knowledge of the defendant as to who held firearms and who confronted which of the plaintiffs as well as indeed which police officers attended.
2. I am mindful that this being a long matter which will not receive a fixture for hearing for some substantial period, there is sufficient time for requests for and provision of further and better particulars and indeed for any interlocutory applications by either party concerning the requests and provision of particulars. I propose to deal with the defendant's complaints in that regard by orders directing further and better particulars.
In conclusion I grant leave to the plaintiffs to proceed by amendment to the originating process as proposed in the Further Amended Statements of Claim of Michael Dumon and Amanda Matthews and the Amended Statements of Claim of Remia, Mikayla and Iziah Matthews, being the documents containing proposed amendments handed up on 7 July 2015. In my opinion the causes of action pleaded by amendment are not unarguable or so insufficiently pleaded as to fail to describe arguable causes of action, which the defendant is to meet.
[3]
Orders:
1. An Order in accordance with paragraph 1 of the Notice of Motion in each of the matters.
2. The parties to enter into a timetable for the request for and provision of further and better particulars.
3. The matter be returned before the List Judge on a date convenient to the parties and organised with my Associate.
[4]
Reasons amended pursuant to UCPR 36.16(3)
[5]
Amendments
14 October 2016 - removed street from address in para 11(i)
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 14 October 2016