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[2001] WASC 62
defendant. The defendant’s application was allowed, the whole amended statement of claim was struck out, and the action was dismissed.
The plaintiffs said a police officer had improperly caused criminal proceedings to be brought and continued against them, and that his investigation was negligent. Although the charges eventually ended with a nolle prosequi, a Magistrate had earlier committed both plaintiffs for trial after a preliminary hearing. Master Bredemeyer considered that the pleaded concerns about witness credibility did not establish that the prosecution lacked reasonable and probable cause. The court also held that the negligence claim could not succeed on the pleading. The whole statement of claim was struck out and the action dismissed.
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2,339 words · generated 30/09/2026
In Noye & Anor v Thoy [2001] WASC 62, Master Bredemeyer of the Supreme Court of Western Australia considered the defendant’s application to strike out the plaintiffs’ amended statement of claim. The application asserted that the pleading disclosed no reasonable cause of action and was embarrassing: [1].
No linked legislation citations have been extracted yet.
The plaintiffs were Jeffrey Howard Noye and Lindsay Gordon Roddan. Noye was a police officer who had investigated Roddan’s affairs in connection with the theft of diamonds from Argyle Diamond Mine. The defendant, Robin Martin Thoy, was also a police officer and had investigated matters concerning Roddan and the theft: [2]. Noye had prepared a three-volume report on his investigation: [2].
The pleading alleged that Thoy made representations to Inspector Robbins between January and November 1993, leading Robbins to lay complaints against each plaintiff. The complaints alleged, in different forms, that the plaintiffs had attempted or procured the perversion of the course of justice by misrepresenting the evidence about whether Roddan and another person should face charges: [2]. The original complaints were withdrawn in February 1994 and replaced with joint complaints: [3].
The plaintiffs elected to have a preliminary hearing. Following hearings on various days between April and September 1994, the Magistrate committed both men for trial or sentence: [4]. The Director of Public Prosecutions later presented indictments in 1994, 1997, and 1998. On 8 October 1998, the Director terminated the charges by presenting a nolle prosequi: [5].
The amended pleading alleged malicious prosecution and negligence. The plaintiffs said Thoy instigated and continued the proceedings without reasonable and probable cause and acted maliciously. They also alleged that he owed a duty to investigate with due care and not to instigate or continue charges without reasonable and probable cause: [6]–[7], [22]. The court ultimately allowed the strike-out application, struck out the whole statement of claim, and dismissed the action: [26].
The malicious prosecution claim
The court set out five elements of malicious prosecution: the defendant must have set the law in motion or continued proceedings; the proceedings must have been resolved in the plaintiff’s favour; they must have been instituted without reasonable and probable cause; the defendant must have acted maliciously; and the plaintiff must have suffered loss: [8].
The plaintiffs alleged that several prosecution witnesses were biased, unreliable, or had reasons to lie. The pleaded examples included alleged bias, mental instability, drug and alcohol addiction, and a motive to protect oneself from prosecution: [15]. The court held that these allegations did not, by themselves, establish absence of reasonable and probable cause. A witness might have credibility problems and still possess relevant first-hand evidence. The judge gave examples of witnesses who might be biased, have criminal histories, be accomplices, or have an incentive to minimise their own exposure, while nonetheless having evidence relevant to the alleged offence: [16].
The court’s reasoning placed particular importance on the committal decision. It described the Magistrate’s decision, after the preliminary hearing, as “independent judicial confirmation” that the case had sufficient foundation to be committed for trial: [17]. The judge acknowledged that the prosecution later ended by nolle prosequi, and treated that as a favourable resolution for the plaintiffs. But the court considered that the committal meant the plaintiffs could not establish, as a matter of law on this pleading, that the prosecution had been brought without reasonable and probable cause: [17].
This is the central reasoning on malicious prosecution in the decision. It should be read as the Master’s ruling on the pleading before him, including the stated significance he attached to the committal. The judgment does not discuss a trial verdict; it records that the charges were terminated by nolle prosequi after the committal and the presentation of successive indictments: [4]–[5].
The pleaded malice particulars
The plaintiffs pleaded that Thoy knew they were innocent, or was reckless as to their innocence, and that he pursued a personal agenda. They also alleged that he presented knowingly false evidence: [19]. The court considered those allegations against the Magistrate’s committal decision. It reasoned that the committal, made after consideration of the evidence, was inconsistent with the pleaded assertions that Thoy knew the plaintiffs were innocent or was indifferent to justice: [20]. The court therefore struck out paragraph 22: [20].
The court also addressed other pleading objections. It did not require the plaintiffs to separate the alleged instigation of proceedings against each plaintiff for the purpose raised in the application, and it considered some particulars sufficiently clear: [9]–[10]. It directed an amendment to particular 19(a), recasting it as an allegation that Thoy conducted an investigation of Roddan’s affairs between 1993 and 1996: [11]. The court considered that the allegation about sworn evidence at the preliminary hearing could remain, because it was pleaded as part of the alleged continuation of the complaint rather than as a claim for giving false testimony: [14].
Paragraph 23 was different. It alleged an unauthorised and consciously wrongful exercise of public office, but the court could not identify a cause of action to which it related. It was not, in the court’s view, a necessary part of malicious prosecution, and it was struck out as irrelevant to a known cause of action in the pleading: [21].
The negligence claim
The plaintiffs’ second pleaded cause of action alleged that Thoy owed a duty to investigate carefully and not to instigate or continue criminal proceedings without reasonable and probable cause: [22]. The judgment recognised that police officers may be liable in negligence in other types of circumstances. It referred to Zalewski & Anor v Turcarolo as an example involving a negligent shooting, and mentioned other contexts such as driving, prisoner custody, and traffic direction: [23].
The judgment also discussed Hill v The Chief Constable of West Yorkshire, in which a claim concerning negligent police investigations into earlier crimes had been struck out and the decision upheld by the House of Lords: [24]. Master Bredemeyer noted the policy reasoning attributed to Lord Templeman and that public policy had been mentioned in some of the other reasons. The court then emphasised the general caution governing strike-out applications: the claim must be obviously untenable or manifestly groundless, and a court should take account of possible legal development: [25].
Despite that caution, the court held that the negligence cause of action could not possibly succeed on this pleading. It particularly relied on the fact that the investigation had resulted in a committal for trial after a long preliminary hearing: [25]. The judgment does not say that police can never owe a duty of care in connection with investigative conduct. Rather, it rejects this pleaded negligence claim in the circumstances and procedural posture described.
The judgment presents the law through the rules and authorities discussed in its reasons, rather than setting out a comprehensive account of the law before or after the decision. For malicious prosecution, it adopts the five-element formulation quoted at [8]. The decision’s application of that formulation focuses on the requirement that the proceedings have been instituted without reasonable and probable cause.
On the facts pleaded, the Master treated the committal for trial as independent judicial confirmation that the prosecution had a sufficient basis to proceed. The judgment says that, given the committal, the plaintiffs were unable as a matter of law to establish absence of reasonable and probable cause: [17]. That is the decision’s most consequential proposition. The source does not formulate a broader rule about every committal decision or every later malicious prosecution claim, so its reasoning should not be extended beyond the context it addresses.
For negligence, the judgment acknowledges existing examples of police liability in different settings through its reference to Zalewski: [23]. It also records the result in Hill, a claim concerning alleged negligence in police investigations: [24]. It then applies the strike-out threshold and concludes that the claim before it could not succeed: [25]. The judgment does not identify legislation relevant to its result; its legislation field states “Nil”.
The supplied judgment does not establish how later courts treated Noye v Thoy. It contains no discussion of subsequent decisions. Accordingly, no conclusion about later approval, limitation, or treatment can be drawn from this source alone. The decision supplies a particular ruling by a Master of the Supreme Court of Western Australia on a strike-out application, rather than a record of later appellate review or subsequent case law.
At [8], the judgment lists the elements of malicious prosecution, including that proceedings must have been brought without reasonable and probable cause. In plain English, the fact that criminal proceedings ended in the plaintiff’s favour is not, by itself, enough. The other required elements must also be pleaded and established.
At [16], the Master says that witness credibility difficulties do not necessarily mean there was no reasonable basis to prosecute. In plain English, a witness can be biased or have a reason to lie and still have evidence relevant to the charge. The court considered that the prosecution could proceed despite such weaknesses, leaving the credibility question to be tested in the criminal proceedings.
At [17], the Master calls the committal decision “independent judicial confirmation”. In plain English, he considered the Magistrate’s decision to send the matter for trial significant evidence that the case had a sufficient foundation to proceed. In this judgment, that finding defeated the pleaded argument that there was no reasonable and probable cause.
At [25], the court recognises that a claim should not be summarily struck out merely because it is difficult, and that the law may develop. But the Master concludes that this negligence claim “cannot possibly succeed”. In plain English, he applied a demanding threshold but considered that the pleaded case remained untenable, particularly given the committal after a lengthy preliminary hearing.
At [26], the court states that it would strike out the whole statement of claim and dismiss the action. In plain English, the application did not merely result in amendments to particular paragraphs; the action itself was dismissed.
The judgment is most directly relevant to a pleading that alleges malicious prosecution after charges ended in the plaintiff’s favour, where the criminal process included a committal for trial after a preliminary hearing. The Master treated that committal as an independent judicial confirmation of a sufficient case to answer and held that, in the circumstances before him, the plaintiffs could not establish absence of reasonable and probable cause: [17].
It is also relevant where the pleaded basis for alleging lack of reasonable and probable cause consists primarily of concerns about witness credibility, such as bias, an incentive to lie, a criminal history, or other reliability concerns. The judgment reasons that these matters may weaken a witness but do not necessarily mean there was no reasonable basis for proceeding: [16].
For negligence, the case concerns allegations that a police officer negligently investigated matters and instigated or continued criminal proceedings. The court did not treat police negligence as impossible in every context. It expressly referred to other types of police negligence claims: [23]. Its conclusion was tied to the pleaded investigation and prosecution claim and the fact that the plaintiffs had been committed for trial: [25].
The judgment also deals with pleading form. It indicates that a pleading should make the alleged wrongdoing intelligible and connect it to a recognised cause of action. The court rejected an objection to one particular alleging continuation through testimony, because it understood that allegation as part of the continuation case rather than a suit for giving evidence: [14]. By contrast, it struck out a paragraph about an unauthorised exercise of public office when it could not identify the cause of action to which it related: [21].
The supplied judgment contains no later judicial treatment of Noye v Thoy. It does not refer to any subsequent decisions applying, distinguishing, approving, or rejecting its reasoning. The material provided therefore supports no account of how later courts have treated it.
The judgment itself refers to Cabassi v Vila in connection with witness immunity. The defendant relied on that authority to argue that the defendant could not be sued for testimony given as a witness. The Master considered the pleaded allegation to concern continuation of the complaint, not liability for giving testimony, and allowed that particular to stand as arguable: [14].
It also refers to Zalewski & Anor v Turcarolo for examples of police liability in negligence, and to Hill v The Chief Constable of West Yorkshire concerning a claim based on police investigations: [23]–[24]. Those are authorities considered within the judgment, not evidence of subsequent treatment of Noye v Thoy.
The judgment does not explain whether the significance it assigned to a committal would be the same in a case with different procedural circumstances, different evidence, or a different basis for alleging lack of reasonable and probable cause. Its holding is expressed in the context of the pleaded witness credibility concerns and the committal decision in this case: [16]–[17].
It does not decide whether particular forms of police investigative conduct could independently support a negligence claim in other circumstances. The Master recognised police negligence in other contexts but concluded that this claim could not possibly succeed: [23]–[25]. The judgment does not set out a general test for every negligence claim involving an investigation or prosecution decision.
Nor does the judgment determine the truth of the plaintiffs’ allegations about the defendant or the witnesses. It was a strike-out decision, and the court’s conclusions concerned whether the pleading disclosed a viable cause of action. The source records no trial findings on the underlying allegations.
Finally, the judgment does not provide a subsequent case-law history, legislative developments, or appellate review. Those matters remain outside what can be established from the supplied judgment.
This is general legal information, not legal advice. Zoe can make mistakes. Before acting on this, relying on it, or using any draft, have a qualified Australian lawyer check it.
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
CITATION : NOYE & ANOR -v- THOY [2001] WASC 62
Pleading - Application to strike out - Malicious prosecution - Negligence - No reasonable causes of action
Coe v Commonwealth [1979] HCA 68; (1979) 24 ALR 118
Commonwealth Life Assurance Society v Brain (1935) 53 CLR 3443
Council of the Shire of Wyong v Shirt [1980] HCA 12; (1980) 146 CLR 40
Dalgety Australia Ltd v Rubin, unreported; SCt of WA; Library No 5485; 24 August 1984
Day v William Hill (Park Lane) Pty Ltd [1949] 1 KB 632
General Steel Industries Inc v Commissioner for Railways NSW [1964] HCA 69; (1964) 112 CLR 125
Gibbons v Duffell [1932] HCA 26; (1932) 47 CLR 520
Kimberley Downs Pty Limited v Western Australia, unreported; SCt of WA; Library No 6414; 25 August 1996
Mann v O'Neill [1997] HCA 28; [1996] 191 CLR 204
Niven v Grant (1903) 29 VLR 102
Packard v Transport Trading Agency Co Ltd (1912) 14 WLR 191
Roy v Prior [1971] AC 470
Watson v M'Ewan [1905] UKHL 1; [1905] AC 480
Zalewski v Tarcarolo [1994] ATR 81-280
1 MASTER BREDMEYER: This is an application by the defendant to strike out the plaintiffs' amended statement of claim of 31 October 2000 as not disclosing any reasonable cause of action and/or as embarrassing etc.
2 The pleading states that the first plaintiff was at all material times a police officer with the rank of Detective Senior Sergeant. The defendant was also at all material times a police officer. In broad outline the pleading is that between February and 1997, the defendant investigated matters concerning the affairs of the second plaintiff and the theft of diamonds from Argyle Diamond Mine between February and September 1992. The first plaintiff investigated the affairs of the second plaintiff (Mr Roddan) as to the theft of the diamonds. The first plaintiff prepared a three volume report on his investigation. Between January and November 1993 the defendant made representations to Inspector Robbins to lay complaints against the first and second plaintiffs. Inspector Robbins acted on that and he laid identical complaints against each plaintiff that between 1 February 1992 and 20 February 1993 at Perth, the first plaintiff attempted to pervert the course of justice in that being a police officer required to investigate possible criminal offences committed by Mr Roddan and others, he deceitfully misrepresented the true evidence and reported that there was no evidence to support a charge against Mr Roddan and another. As I have said, the complaint against Mr Roddan was in identical form, namely that he between the same dates procured Mr Noye to pervert the course of justice by deceitfully misrepresenting that there was no evidence to support a charge against him.
3 In February 1994 those two complaints were withdrawn, but were substituted by further complaints (called the second complaints) in identical form except that they joined the two plaintiffs in the one complaint, ie, a joint complaint.
4 The first and second plaintiff elected to have a preliminary hearing in the Perth Court of Petty Sessions on various days in April, May, June, July, August and September 1994. As a result of that hearing, on 19 September 1994 the presiding Magistrate committed them both for trial or sentencing in the December sittings of the District Court on the second complaints.
5 In December 1994 the Director of Public Prosecutions presented an indictment against the plaintiffs for conspiring to pervert the course of justice in relation to the theft of diamonds. On 1 October 1997 he presented a second indictment in much the same form, and on 2 June 1998 the Director of Public Prosecutions presented a third indictment against the two men, again in the same form. On 8 October 1998 the Director terminated the charges by presenting a nolle prosequi against both plaintiffs.
6 The plaintiffs say that the complaints were instigated and continued by the defendant without any reasonable or probable cause. Particulars of that are given. It is further alleged that the defendant acted maliciously in bringing those complaints and continuing those complaints against the plaintiffs. Finally it is alleged that the defendant owed a duty of care to the first and second plaintiffs to conduct his investigations against them with all due care and not to continue criminal charges against them unless he had reasonable and probable cause to do so. It is said that he breached that duty of care. Details of that are given.
7 Further, it is pleaded that as a result of the defendant's actions, the plaintiffs have suffered loss and damage, particulars of which are given.
8 It is clear from this brief summary that two causes of action are alleged, (1) malicious prosecution and (2) negligence. The elements of malicious prosecution as set out in Bullen and Leake and Jacob's Precedence of Pleadings, 13th ed at 642 are:
(a) that he was prosecuted by the defendant, ie that the law was set in motion against him, or proceedings were continued, by the defendant on a criminal charge;
(b) that the proceedings were resolved in the plaintiff's favour;
(c) that the proceedings were instituted without reasonable and probable cause;
(d) that the defendant instituted the proceedings maliciously; and
(e) that the plaintiff suffered loss and damage as a result."
9 The plea in par 7 is said to be embarrassing as the particulars do not distinguish and identify separately which matters allegedly constitute instigation of the complaint against the first plaintiff, and which matters allegedly constitute instigation of the complaint the second plaintiff. Further there is no plea as to the basis on which it is alleged that the representations were wilfully false.
10 I do not consider it is necessary to distinguish between the instigation of the complaints against the first or the second plaintiffs. I consider the plea is not embarrassing in that regard. I consider the plea is reasonably clear as to what is false. For example, in particular (a) the falsity is that the first plaintiff had not "confessed to him...". In particular (b) it is that the Noye Report did not contain false statements designed to protect the second plaintiff from prosecution. In particular (c) it is that the Noye Report "did not contain sufficiernt evidence...". Particulars of wilfulness can be given, eg, as proposed "The defendant knew that all the matters particularised in par 7 were false."
11 Paragraph 19 pleads that the defendant instigated and continued, or was instrumental in the continuation, of the complaints against the first and second plaintiffs. Some particulars of that are given. Particulars (a) and (b) are said to be embarrassing as not amounting to continuation. I consider (a) should be amended to read, "conducted an investigation of the affairs of the second plaintiff between 1993 and 1996". I have done that because the investigations carried out by the defendant prior to 1993 were part of the instigation of the complaints. I consider par (b) is in order.
12 The defendant objects to particular (c) as being so vague and lacking in material facts as to be embarrassing. I consider the plea is in order.
13 Paragraph (d) is also said to be embarrassing as not capable of amounting to a continuation of the complaint. I do not agree with that objection.
14 Paragraph 19(e) pleads that the defendant gave sworn oral testimony in the course of the preliminary hearing in 1994 in relation to the Thoy inquiry and his investigations into the affairs of the first and second plaintiffs and all of the criminal matters disclosed herein. The defendant says that plea is bad because a witness in a case enjoys immunity from suit in another case: Cabassi v Vila [1940] HCA 41; (1940) 64 CLR 130. I think the plea can stand. The defendant is not being sued for having given false testimony at the committal. The particular here is simply that the defendant continued the complaint. I think that is arguable.
15 Paragraph 20 comes to the heart of the plea that the defendant instigated and continued in the laying of the charges against the plaintiffs without reasonable and probable cause. Particulars of that are given which I quote.
"PARTICULARS OF ABSENCE OF REASONABLE AND PROBABLE CAUSE
The Defendant knew or ought to have known that the evidence of key prosecution witnesses was unreliable namely that of:
Lynette Crimmins who was biased against the First and Second Plaintiffs, was mentally unstable, was addicted to drugs and alcohol and had a motive to lie about the First and Second Plaintiffs to protect herself from prosecution for criminal offences. Moreover, the Defendant had formed a friendly relationship with Lynette Crimmins and in so doing had endeavoured to secure for her a number of police investigations into matters that she had raised as complaints of police mis-conduct against herself.
Barry Crimmins who was investigated by the Defendant and other police in 1990, and who had a motive to lie about the First and Second Plaintiffs in order to avoid or minimise prosecution for criminal offences he had committed.
Richard William Corfield ('Corfield') who was biased against the First Plaintiff, and extremely biased against the Second Plaintiff, and who publicly stated that he considered the Defendant to be one of his friends.
John Sebastian Burton ('Burton') who was biased against the First Plaintiff and extremely biased against the Second Plaintiff.
Robert Charles Gardiner ('Gardiner') who was biased against the Second Plaintiff.
Rae-lene Mary Shore ('Shore') who was biased against the Second Plaintiff."
16 I consider that this plea is bad for two reasons. The first is that merely because a witness is biased against a defendant in a criminal case, does not mean that the charge was brought without reasonable and probable cause. For example, it is said of Lynette Crimmins that she was biased against the first and second plaintiffs, was mentally unstable, and was addicted to drugs and alcohol and had a motive to lie about the plaintiffs to protect herself from criminal charges etc. All this does not mean that the prosecution should not proceed with the charge. It may be that despite these problems with her credibility, she was an important witness. She may have seen and heard incriminating actions and words by the defendants in the criminal case. Likewise with Barry Crimmins. It is said that he had a motive to lie about the first and second plaintiffs in order to avoid or minimise prosecution for criminal offences he had committed. It occasionally happens that the prosecution has a witness who is an accomplice, or who himself has criminal convictions, or is a suspect. All this presents problems for the prosecution. If he is an accomplice he normally needs to be dealt with, either by being convicted or being given an indemnity from prosecution. But again, despite these problems from a prosecution point of view, he may be a witness with first-hand evidence to give. Take also the statement about Mr Corfield. He was said to be biased against the first plaintiff, extremely biased against the second plaintiff and publicly stated that he considered the defendant to be one of his friends. This also frequently happens in a criminal case. The witness may be biased, in the sense of intensely dislike, the defendant and he may be friendly with the victim. He may be related to the victim, he may be married to her, or whatever. These are matters which may diminish the credibility which should be given to a witness, but nevertheless, he may be a witness of substance. He may have seen and heard things done and said by the defendant which will help prove the offence. I do not see why the prosecution should back off from running a prosecution because a number of witnesses are biased against the defendant and have suspect credibility for other reasons. The prosecution has a duty if it considers that the offence has been committed and that is has evidence about it, to run the prosecution. If, as a result of cross-examination as to credibility, the prosecution case is not proved beyond reasonable doubt, then the defendant will be acquitted. I consider that none of these particulars, even taken together, amounts to an absence of reasonable and probable cause.
17 Secondly, and this also relates to the first point, the plaintiffs in this case, (the defendants in the Court of Petty Sessions), were committed for trial upon the charges. That is, an independent judicial officer, the Magistrate, considered that the prosecution case had been made out in a prima facie way or in a sufficient way to commit these men for trial or sentence on an indictable offence to the District Court. That is independent judicial confirmation that these men were prosecuted with reasonable and probable cause. I am not saying that the Magistrate used those words or should have used those words. I am trying to express the legal effect of his decision to commit them for trial or sentence upon the charges. This is not a case where the charges were withdrawn, or nollied, which is very similar, before any court case was heard; or where, after a trial, the defendants were acquitted. The proceedings were resolved in the plaintiffs' favour because of the nolle prosequi, but only after the Magistrate had found at the committal that there was a case to answer. With that adverse finding against them, I consider that, as a matter of law, the plaintiffs are unable to establish that this prosecution was brought without reasonable and probable cause and that this claim fails at the outset to disclose a reasonable cause of action.
18 Paragraph 21 states that the defendant was extremely biased against the second plaintiff. This is said to be so vague and meaningless as to be embarrassing. I agree with that. If it means that the defendant extremely disliked the second plaintiff, then the plea should say so. If it refers not to the defendant's feelings and thoughts, but to the defendant's actions, then particulars of the bias should be given. In either event it should be struck out and repleaded.
19 Paragraph 22 pleads malice. I quote the three particulars of malice given.
(a) The Defendant conducted himself wilfully maliciously and with extreme bias, knowing the First and Second Plaintiffs were innocent of the charges or reckless not caring whether the First and Second Plaintiffs were innocent of the said charges or not, in order not to effect justice in relation to the First and Second Plaintiffs but to pursue the aims of his own investigation into the affairs of the First and Second Plaintiffs in relation to the Argyle Diamonds' matter and/or West Australian Diamond Trust matter;
(b) The Defendant presented knowingly false written and sworn testimony, such testimony in some instances conflicting with itself, thereby being actively instrumental in the prosecution of the First and Second Plaintiffs whilst he cared not for, or was reckless or indifferent to, the causes of justice but merely sought to pursue his own agenda in respect of the First and Second Plaintiffs;
(c) The Defendant, by being actively instrumental in such prosecution of the First and Second Plaintiffs while he cared not for, or was reckless or indifferent to, the causes of justice, merely sought to pursue his own agenda towards the First and Second Plaintiffs and the aims of his own investigation into the Argyle Diamonds' matter and/or West Australian Diamond Trust matter."
20 I consider this plea should be struck out as not disclosing a reasonable part of the cause of action. How can it be said that the defendant knew that the first and second plaintiffs were innocent of the charges when the Magistrate committed them for trial on the charges? Likewise, how can it be said in (b) that he presented false written and sworn evidence, in some cases conflicting with itself, when the Magistrate, after reviewing all the evidence including no doubt the parts which conflicted, decided to commit the plaintiffs for trial? Likewise in (c), how can it be said that the defendant was recklessly indifferent to the cause of justice and sought to pursue his own agenda towards the second and first plaintiffs, when his investigation was good enough to gain a committal for trial from the Magistrate? I will strike out par 22.
21 Paragraph 23 is a plea to the effect that the prosecutions were unauthorised and were done by the defendant maliciously in the purported discharge of his public office and constituted a consciously wrongful exercise of power by the defendant by virtue of his position as a police officer, and did thereby cause harm to the first and second plaintiffs. I do not know to what this plea relates. It is not a necessary part of the cause of action of malicious prosecution and I cannot identify it with any other cause of action. I consider it irrelevant to any known cause of action and to the causes of action being run in this pleading and I propose to strike it out as an idle plea which will not lead to any result for the plaintiffs.
22 The second cause of action pleaded is that of negligence. I have outlined briefly the plea in my introductory summary. It is said that the defendant owed a duty of care to the first and second plaintiffs to conduct his investigations with all care and skill, and not to instigate or continue criminal charges against them unless he had reasonable and probable cause to do so and that he breached that duty of care in instigating the charges when he did not have reasonable and probable cause to do so.
23 Police can be held liable for negligence: see Zalewski & Anor v Turcarolo (1994) ATR 81-280, a decision of the Supreme Court of Victoria, Appeal Division, which contains a review of Australian, English and Canadian cases. In that case a policeman was found liable for the negligent shooting of a suspect. Police have also been found liable for negligent driving of a vehicle, the negligent custody and care of prisoners, failure to direct traffic properly in an emergency, etc.
24 In Hill v The Chief Constable of West Yorkshire [1989] AC 53 the plaintiff was the mother of a 20-year-old daughter who died as a result of injuries received when she was attacked in a city street by a person who was alleged to have committed a series of attacks in similar circumstances. The plaintiff sued the police for the negligent conduct of investigations into the earlier crimes. The claim was struck out as disclosing no cause of action. That decision was upheld by the House of Lords. Lord Templeman decided the appeal on the policy basis that the efficiency of a police force cannot be investigated by an action for damages, but only by an inquiry instituted by a national or local authority responsible to the electorate for that efficiency. The other Lords gave separate reasons, but public policy aspects were mentioned in some of them.
25 I am aware that the law proceeds incremently, especially with the tort of negligence, gradually extending it to new factual situations. I am also aware that a strike out application should not succeed unless the cause is one which is "obviously untenable", or "manifestly groundless" or discloses a case which cannot possibly succeed. I am aware too that a court should not strike out a cause summarily when there is a reasonable possibility that, as the law develops, it will be found that a cause of action will lie. Nevertheless, bearing those warnings in mind, I am satisfied that this cause of action cannot possibly succeed. That is especially so where the investigation said to be done negligently resulted in a committal after a long preliminary hearing in the Court of Petty Sessions. Both plaintiffs were committed for trial. I propose to strike out this cause of action.
26 Given my reasons on the three causes of action, it is appropriate that I strike out the whole statement of claim and dismiss the action.
Noye & Anor
Thoy [2001] WASC 62
(1979) 24 ALR 118
(1935) 53 CLR 3443
(1980) 146 CLR 40
(1964) 112 CLR 125
(1932) 47 CLR 520
(1940) 64 CLR 130
The defendant’s application was allowed, the whole amended statement of claim was struck out, and the action was dismissed.