Practice and procedure - Application to strike out action for want of prosecution - Whether inordinate and inexcusable delay - Application to strike out statement of claim as disclosing no cause of action or as embarrassing - Litigant in person - Relevant considerations - Turns on own facts

Order that particulars be provided of the statement of claim

Banque Commerciale SA en Liquidation v Akhil Holdings Ltd [1990] HCA 11; (1990) 169 CLR 279

Birkett v James [1978] AC 297

Bishopsgate Insurance Australia Ltd (In Liq) v Deloitte Haskins & Sells [1999] 3 VR 863

Dare v Pulham [1982] HCA 70; (1982) 148 CLR 658

Gould & Birbeck & Bacon v Mount Oxide Mines Ltd (In Liq) [1916] HCA 81; (1916) 22 CLR 490

Hancock Family Memorial Foundation Ltd v Fieldhouse [2005] WASCA 93

Hughes v Gales (1995) 14 WAR 434

Jakovljevic v L & B Doslov [2000] WASCA 131

Lewandowski v Lovell (1994) 11 WAR 124

Monaveen Pty Ltd (Receivers and Managers Appointed) (Administrator Appointed) v ABB Service Pty Ltd [2004] WASC 5

Muto v Faul [1980] VicRp 3; [1980] VR 26

Neilson v City of Swan [2006] WASCA 94

Northern Territory of Australia v Mengel (1995) 185 CLR 307

Noye & Anor v Gwilliam & Anor [2002] WASC 227

Pancontinental Mining Ltd v Posgold Investments Pty Ltd [1994] FCA 983; (1994) 121 ALR 405

Roddan v Gwilliam [2005] WASCA 209

Smith v McCusker [2000] WASCA 320

Wan v Sweetman (1998) 19 WAR 94

Kenny v Sholl (1905) 7 WALR 197

Mann v Board of Health of ACT, Bissett, Withers, Clarke, O'Donnell & Hurley (1996) 67 FCR 383

1 MASTER NEWNES: This is an application by the defendant for an order dismissing the action for want of prosecution, or alternatively striking out the substituted statement of claim on the basis that it discloses no reasonable cause of action or is embarrassing.

2 The substituted statement of claim was filed following an earlier application by the defendant to strike out the then existing statement of claim. That application was dated 25 July 2005 and was heard on 15 November 2005. On that occasion, I found that the particulars of the pleas of malice and of misfeasance in public office were inadequate. The plaintiff ("Mr Noye") elected to file and serve a substituted statement of claim to incorporate the necessary particulars. The substituted statement of claim was to be filed, and was filed, by 20 January 2006.

3 In the substituted statement of claim, Mr Noye pleads that he was formerly a police officer with the rank of detective senior sergeant and is now retired. The defendant is, and was at all material times, a police officer.

4 In February 1992, Mr Noye was assigned to an investigation of the affairs of one Lindsay Roddan ("Mr Roddan") and the alleged theft of diamonds from entities associated with the Argyle Diamond Mine. In the course of that investigation, Mr Noye was to review a previous inquiry in 1990, in which the defendant participated, form his own opinions and report in writing. Mr Noye compiled and, in September 1992, submitted a three-volume report to his superiors.

5 It is alleged that, between 8 August 1993 and 11 November 1993, the defendant instigated criminal proceedings against Mr Noye by making a false report to an officer of the Police Internal Affairs Unit, thereby inducing that officer to swear three complaints alleging criminal conduct by Mr Noye.

6 Mr Noye first appeared in respect of those complaints in the Perth Court of Petty Sessions on 22 November 1993. On 17 February 1994, the prosecution withdrew the complaints and substituted fresh complaints in the same terms, but adding Mr Roddan as a defendant. Following a preliminary hearing in the Court of Petty Sessions, Mr Noye was committed for trial to the District Court. An indictment was presented by the Director of Public Prosecutions on 5 December 1994. A second indictment was presented on 1 October 1997, and a third on 2 June 1998.

7 On 8 October 1998, the prosecution entered a nolle prosequi in respect of each of those matters, thereby terminating the proceedings in Mr Noye's favour.

8 Mr Noye alleges that, in the meantime, on a date unknown to him but between 20 January 1993 and 29 November 1993, the defendant instigated internal disciplinary charges against him by informing his superiors that the defendant had evidence that warranted charging Mr Noye with three police internal disciplinary offences. As a result, three disciplinary charges were laid against Mr Noye on 29 November 1993. Those charges were, in essence, one charge that Mr Noye had wilfully submitted a false and misleading report relating to the Argyle diamond inquiry and two charges that he had unlawfully disclosed confidential information to Mr Roddan.

9 On or about 8 October 1998, all of the internal disciplinary charges were withdrawn by the Acting Commissioner of Police and were thereby terminated in Mr Noye's favour.

10 Mr Noye alleges that the defendant instigated or continued both the criminal charges and the disciplinary charges, or caused them to be instigated or continued, without reasonable and probable cause and out of malice. Particulars are given of the matters relied upon for the allegations of absence of reasonable cause and malice. I will come back to those.

11 Mr Noye also pleads that, by virtue of the defendant's office as a police officer, the defendant owed to him a duty to carry out any police investigations concerning him with all care and skill and not to charge him, or contribute to the charging of him by another police officer, unless the defendant had reasonable and probable cause to do so. Mr Noye alleges the defendant was in breach of that duty.

12 It is also alleged by Mr Noye that the defendant committed misfeasance in public office in that the prosecutions of him by the defendant were unauthorised acts done maliciously, or as a conscious wrongful exercise of power, or known by the defendant to be beyond his power as a public officer, and were done by the defendant deliberately and were calculated to, and did, cause damage to Mr Noye. It is alternatively pleaded that the acts were done recklessly.

13 Mr Noye alleges that the harm caused to him as a result of the defendant's actions was foreseeable and that the defendant's actions constituted a contumelious disregard for his rights.

The application to strike out the action for want of prosecution

14 In support of the application that the action be dismissed for want of prosecution, counsel for the defendant pointed out that the action had been commenced on 2 August 1999 and most of the events to which it related had occurred in or about 1993, some 13 years ago. He acknowledged that the claim for malicious prosecution may have accrued in 1998, by the entry of the nolle prosequi and the withdrawal of the internal disciplinary charges, but the other causes of action arose much earlier.

15 It was submitted that there were two distinct periods of delay to be considered, being the period from August 1999 to 26 September 2002, when the claim of the second plaintiff, Mr Roddan, was struck out, and the period from August 2002 to the present. In the first period, Mr Noye and Mr Roddan had produced 10 different statements of claim, or minutes of statement of claim. Originally, the only complaint by Mr Noye in the statement of claim was in relation to a charge that he had disclosed confidential documents. The allegations began to expand with the filing of a minute of amended statement of claim of 7 March 2000. By chamber summons dated 6 June 2002, an application was made to strike out the 10th version of the statement of claim filed by Mr Roddan and Mr Noye. Mr Roddan's claim was struck out, but Master Sanderson declined to strike out the action as an abuse of process: Noye & Anor v Gwilliam & Anor [2002] WASC 227. In February 2003, Mr Roddan filed a notice of appeal against the Master's decision. On 7 October 2005, the Court of Appeal struck out the appeal for want of prosecution.

16 In the meantime, on 11 July 2005, Mr Noye was ordered to file and serve an amended statement of claim. It was filed on 25 July 2005 and, on 15 August 2005, the defendant filed an application to strike it out. That came on for hearing on 15 November 2005 and, as I have mentioned, Mr Noye elected to remedy the lack of adequate particulars by incorporating them in a substituted statement of claim. The substituted statement of claim was filed on 20 January 2006, pursuant to the order made on 15 November 2005. On 4 April 2006, this application was made.

17 It was submitted that, between 1999 and 2002, the substantial delay was caused by the attempts Mr Roddan and Mr Noye were making to formulate the causes of action and, from 2002 to 2005, the substantial delay occurred because the parties were waiting on the outcome of Mr Roddan's appeal. It was submitted that that does not excuse the delay. From July 2005 to the present time, the action has been delayed by further objections to the statement of claim.

18 Counsel for the defendant acknowledged that, if the action were dismissed, it would not be open to Mr Noye to bring any fresh action based on the same matters, as the relevant limitation period would have expired. But, it was submitted, that was outweighed by the prejudice to the defendant arising from the risk that a fair trial of the action was no longer possible. In that respect, counsel submitted that, given that some 14 years have passed since the investigation from which the cause of action is said to arise, that in its present state there will be further delay before the matter can go to trial, and that Mr Noye is now seeking to add fresh particulars raising new allegations of matters that occurred up to 13 years ago, it is readily to be inferred that a fair trial is no longer possible. It was submitted that the allegations against the defendant are extremely serious and go to the heart of his role as a serving police officer. He has been the subject of these proceedings since August 1999 and, if they are permitted to continue, will remain that way for a considerable further period of time.

19 It was submitted by Mr Noye that the complaint of excessive delay was not open to the defendant. On 26 September 2002, Master Sanderson had ordered that Mr Noye file and serve a new statement of claim, which he had done within time. The defendant did not apply to strike out the statement of claim within time. The defendant acquiesced in the delay in the action until making an application on 15 August 2005 to strike out the statement of claim, an application that was out of time and attacked pleas that had been in the statement of claim prior to the previous strike out application. In accordance with the order of 15 November 2005 Mr Noye had filed and served a substituted statement of claim by 20 January 2006. The current strike out application was also filed by the defendant out of time.

20 Mr Noye said that to the best of his recollection there was one occasion when he was 10 days late in filing a statement of claim but otherwise he had complied with all of the orders of the Court. No significant delay had been caused by any non-compliance by him with the rules of Court or any order of the Court. The most substantial delays had occurred while waiting for the outcome of Mr Roddan's appeal against the order striking out his claim in the action and when there had been an agreed halt to any interlocutory steps being taken in the action during the Royal Commission into Police Corruption. I should say that the extent of the delay attributable to the existence of the Royal Commission was in issue between the parties. Counsel for the defendant said the delay in these proceedings was only between May and August 2003 when the work required to deal with matters before the Royal Commission made it impossible to deal with this action as well. Mr Noye thought it was significantly longer than that.

21 In Hancock Family Memorial Foundation Ltd v Fieldhouse [2005] WASCA 93, at [99] - [103], Steytler P and Owen JA said that there are five matters to be considered which will usually be relevant to the exercise of a discretion to dismiss an action for want of prosecution: (1) the length of delay; (2) the explanation for delay; (3) the hardship to the plaintiff if the action is dismissed and the cause of action is statute-barred; (4) the prejudice to the defendant if the action is allowed to proceed notwithstanding the delay; (5) the conduct of the defendant in the litigation.

22 Their Honours pointed out, however, that those matters should not be treated simply as a form of checklist. Ultimately the question is what the interests of justice require in the circumstances of the case.

23 It is accepted that on an application of this nature the relevant delay is that which occurs after the issue of the writ, but that a late start "makes it incumbent upon the plaintiff to proceed with all due speed, and a pace which might have been excusable if the action had been started sooner may be inexcusable in the light of the time that has already passed before the writ is issued": Birkett v James [1978] AC 297, at 322; Lewandowski v Lovell (1994) 11 WAR 124, at 134.

24 Delay is not simply to be equated with inactivity. Delay can also be constituted by a failure to prosecute an action in a way which would enable interlocutory steps to be concluded within a reasonable time, so that there may be a want of prosecution during a period in which the plaintiff is involved in continuing unsuccessfully efforts to establish a proper pleading: Bishopsgate Insurance Australia Ltd (In Liq) v Deloitte Haskins & Sells [1999] 3 VR 863 at 876 - 877; Monaveen Pty Ltd (Receivers and Managers Appointed) (Administrator Appointed) v ABB Service Pty Ltd [2004] WASC 5 at [72].

25 It is not always necessary to prove specific prejudice; even where there is no specific evidence of prejudice, delay of itself might lead to an inference of serious prejudice: Hughes v Gales (1995) 14 WAR 434; Muto v Faul [1980] VicRp 3; [1980] VR 26, at 31; Jakovljevic v L & B Doslov [2000] WASCA 131. Where a claim is made against individuals relating to their probity or competence, especially their professional competence, it is not hard to infer that the defendants against whom the allegations are made are under a heavy burden; it is then easier still to infer serious prejudice of the kind relevant to the defendant: Bishopsgate Insurance Australia Ltd (In Liq) v Deloitte Haskins & Sells (supra) and Hancock Family Memorial Foundation Ltd (supra) at [148]. The fact that the defendant is a serving police officer adds strength to the drawing of an inference of prejudice: Roddan v Gwilliam [2005] WASCA 209 at [38].

26 When considering the prejudice to the defendant as a result of being kept at risk in respect of the subject matter of the action, the relevant period will extend from the time the action was brought to the time it is likely to be heard and due allowance should be made for the time which any action will ordinarily take to reach final determination: Bishopsgate Insurance Australia Ltd (In Liq) v Deloitte Haskins & Sells (supra) at 875 - 876.

27 It is, I think, clear that it is a relevant consideration that Mr Noye is a litigant in person and that he has therefore encountered time-consuming difficulties that would not, or should not, have been experienced had Mr Noye had the benefit of legal representation.

28 In Smith v McCusker [2000] WASCA 320, Templeman J said, at [212]:

"There has, of course, been an extraordinarily long delay in the prosecution of the action, which was commenced on 13 March 1995. However, the delay is due in part to the respondents' persistent objection to the form of the Smiths' pleadings. That objection has been justified in the sense that a litigant is required to comply with the rules of pleading. However, the Court should, I think, approach matters involving litigants in person with a degree of flexibility. The power to dispense with pleadings illustrates that the rules of pleading are a means to an end, not an end in themselves."

29 That consideration must not, of course, unduly distract attention from the effect on the defendant of excessive delay. Nor does it alter the ultimate question of what is necessary to do justice in the circumstances of the case.

30 There is no doubt that, at least in respect of the claims for negligence and misfeasance in public office, a long period of time elapsed between the causes of action allegedly arising and this action being instituted. That delay has been substantially exacerbated by a great deal of delay in the course of the action.

31 There have, however, been various reasons for the delay apart from difficulties associated with the form of the statement of claim or any lack of diligence on Mr Noye's part. There was a lengthy period from the time Mr Roddan's appeal was instituted until it was finally struck out. That, in the end, occupied more than two and a half years. It does not seem that the defendant pressed Mr Noye to prosecute his claim while the appeal remained extant and the defendant's counsel acknowledged that at least initially there was a mutual recognition that it was desirable for Mr Roddan's appeal to be disposed of before Mr Noye pressed on with his action. The action also seems to have been in abeyance by mutual consent for a time during the Royal Commission into Police Corruption, although, as I have said, the exact extent of that time is quite unclear.

32 The defendant's counsel did not take issue with Mr Noye's contention that, with the one exception to which I have referred, Mr Noye had not been in breach of any order of the Court in relation to the filing of pleadings. There was no history of delay caused by non-compliance by Mr Noye with Court orders. It also appears that the issue of delay in the context of an application to strike out the claim for want of prosecution was first raised by the defendant earlier this year. The defendant's application to strike out the statement of claim, which was heard in November 2005, was concerned only with the adequacy of the pleading. The question of an application being brought to strike out the action for want of prosecution appears to have arisen only after the filing and service of the substituted statement of claim on 20 January 2006.

33 In the circumstances, and having regard to the fact that Mr Noye is a litigant in person, I do not consider that the justice of the case requires that the action be dismissed. It does, however, require that steps be taken to ensure that it proceeds to trial with the least possible further delay. In that connection, I should mention that the defendant's counsel submitted in the course of argument that it would be several years before the action would get to trial. That seems to me to be unduly pessimistic. If the matter is pursued with reasonable expedition on both sides, it should go to trial no later than in the course of next year.

The application to strike out the statement of claim

34 It is necessary, then, to turn to the issues raised by the defendant in respect of the substituted statement of claim.

35 In determining whether a pleading is likely to prejudice, embarrass or delay the fair trial of the action, it is fundamental that a party is entitled to a statement of the opponent's case sufficiently clear to allow the party a fair opportunity to meet it: Gould & Birbeck & Bacon v Mount Oxide Mines Ltd (In Liq) [1916] HCA 81; (1916) 22 CLR 490 at 517; Dare v Pulham [1982] HCA 70; (1982) 148 CLR 658 at 664. A pleading may therefore be struck out where it is vague, ambiguous or pleaded at too great a level of generality so as to leave the other party in doubt as to how to respond to the pleading: Pancontinental Mining Ltd v Posgold Investments Pty Ltd [1994] FCA 983; (1994) 121 ALR 405 at 413; Banque Commerciale SA en Liquidation v Akhil Holdings Ltd [1990] HCA 11; (1990) 169 CLR 279 at 286 per Mason CJ and Gaudron J.

36 The question of whether a pleading is likely to prejudice, embarrass or delay the fair trial of the action in any particular case invariably involves matters of judgment and degree. The approach to be taken to such an objection to a pleading, or proposed pleading, must be directed to the attainment of the objectives set out in O 1 r 4B. Such an approach requires a degree of flexibility that may not always be consistent with the practices of earlier times. The question of whether a pleading is so defective that it should be struck out is generally to be answered by whether or not the pleading serves the fundamental objective of pleadings and whether any significant deficiencies in it can adequately be overcome by the provision of particulars or by some other means. While it is necessary that a pleading set out with reasonable clarity and detail the case that the other party must meet, the focus must be on whether the pleading is sufficient for the fair and proper disposition of the case, not whether it complies meticulously with the rules of pleading.

37 In determining the adequacy of a pleading it will often be appropriate to allow greater latitude to a litigant in person than might be appropriate where a pleading is drawn by a lawyer. But even in that event, the interests of justice still require that the pleading sets out the party's case sufficiently clearly to allow the other party a fair opportunity to meet it.

38 At the hearing of the previous application I found that the particulars of malice, misfeasance in public office and damages were inadequate. I did not strike out the statement of claim, but gave leave to Mr Noye to file a substituted statement of claim with proper particulars to be incorporated in it. The defendant complains that proper particulars have not been incorporated.

39 In my view, there is substance in that complaint.

40 The elements of a claim for malicious prosecution were set out in Wan v Sweetman (1998) 19 WAR 94 at 101, as follows:

1. the proceedings in question were instituted or continued by the defendant;

2. the defendant instituted or continued the proceedings maliciously;

3. the defendant, in instituting or continuing the proceedings, acted without reasonable or probable cause;

4. the proceedings were terminated in the plaintiff's favour;

41 In that case, Parker J, having reviewed a number of the authorities, concluded (at 103) that malice involves "an improper or indirect motive in bringing the proceedings in question, some wrongful or sinister motive rather than to do so in furtherance of justice."

42 His Honour also concluded (at 113) that an absence of reasonable and probable cause will exist where the prosecutor does not believe that the accused has a case to answer or where the prosecutor's belief that the accused has a case to answer is not based on reasonable grounds.

43 It is alleged in par 21 of the substituted statement of claim that the defendant instituted and continued the criminal charges and the disciplinary charges respectively without reasonable and probable cause. That plea is sought to be supported by particulars in which it is alleged that the defendant knew that the evidence of key prosecution witnesses was unreliable. The names of the witnesses, and the reason that each is said to be unreliable, are then set out. But the facts upon which it is alleged that the defendant knew that each of those witnesses was unreliable in that respect is not pleaded. The defendant is entitled to those particulars and, particularly in light of the time this action has been on foot, they should be provided at this stage.

44 In par 22 of the substituted statement of claim, Mr Noye pleads that in instituting and continuing the criminal charges and the disciplinary charges respectively the defendant was actuated by malice. Particulars of malice are then set out in par 22(1) and par 22(2). Paragraph 22(1) is unchanged from the preceding version of the statement of claim. It contains allegations of misconduct by the defendant and as to the defendant's state of mind, all couched in very general terms. The pleading does not set out the particulars of the facts on which Mr Noye relies for the plea as to the defendant's state of mind, nor does it adequately particularise the conduct alleged, in that it does not set out the specific incidents which it is alleged constituted the alleged conduct.

45 The plea in par 22(2) is new. That pleads that the defendant knew that certain items of evidence (which are described) which he gave to his superior officers and senior prosecutorial staff of the office of the DPP were "wilfully false and thereby unreliable", but again does not set out particulars of the facts relied upon for the defendant's knowledge. The plea should contain particulars of those facts, in respect of each of the items of evidence pleaded. It should particularise, so far as Mr Noye is able to do so, when and to whom (that is, to which superior officer or senior prosecutorial staff member) each of the specified items of evidence was given by the defendant. As it is, par 22(2) is framed at far too great a level of generality.

46 It was also submitted on behalf of the defendant that the allegations in par 22(2) were in truth particulars of the alleged absence of reasonable and probable cause rather than of malice. While there is some substance in the submission, I do not consider that the particulars are incapable of constituting particulars from which malice might be inferred and I would not strike them out.

47 I would also decline to strike out par 22(2) on the alternative basis put by the defendant, namely that as some of the matters referred to in the particulars for the first time are said to have occurred up to 13 years ago, it is simply too late in the proceeding to be raising them now by way of particulars.

The claim of misfeasance in public office

48 In par 25 of the substituted statement of claim, Mr Noye pleads misfeasance by the defendant in public office. The relevant elements of that tort are: (i) an invalid or unauthorised act; (ii) done maliciously; (iii) by a public officer; (iv) in the purported discharge of his or her public duties; (v) which causes loss or harm to the plaintiff: Northern Territory of Australia v Mengel (1995) 185 CLR 307, per Deane J at 370.

49 Malice will exist if the act was done with an actual intention to cause injury to the plaintiff or if the act was done with knowledge of invalidity or lack of power and with knowledge that it would cause or be likely to cause such injury. Malice will also exist if the act is done with reckless indifference or deliberate blindness to that invalidity or lack of power and that likely injury: Northern Territory of Australia v Mengel (supra), per Brennan J at 357, Deane J at 370. See also the discussion of the tort in Neilson v City of Swan [2006] WASCA 94.

50 Mr Noye pleads, in essence, that the prosecutions were unauthorised acts by the defendant in the purported discharge of his public office, done maliciously or as a consciously wrongful exercise of power, known by the defendant to be beyond his power, and deliberately calculated in the ordinary course to cause damage to Mr Noye, or with reckless indifference to the harm they were likely to, and did, cause.

51 The plea is, as the defendant complains, simply a list of the elements of the cause of action and is therefore, inevitably, cast at a very high level of generality. It is, in my view, plainly not sufficient to inform the defendant of the case he must meet. In particular, the pleading does not particularise the specific incidents upon which Mr Noye relies and where it is alleged that the defendant had a specific state of mind - such as malice, knowledge, intention and recklessness - does not provide particulars of the facts relied upon for the allegation that the defendant had that state of mind.

52 The defendant also complains about the particulars of loss and damage set out in the substituted statement of claim. I accept the defendant's complaint that, once again, they are couched at too high a level of generality. In particular, the defendant complains that a claim is made for the expenses Mr Noye has incurred in defending legal proceedings and his loss of income and superannuation. No particulars are given of those matters. At this stage of the proceeding, some seven years after it was commenced, those particulars should be provided. It was contemplated by the order of November 2005 that they would be included in the statement of claim. It seems to me that, once again, the particulars are inadequate.

53 I was urged by the defendant to strike out the relevant paragraphs of the statement of claim. In the somewhat unusual circumstances of this case, I am not minded to take that course. In my view, the action is likely to advance more quickly and effectively if the areas in which greater particularity is required are the subject of a request by the defendant for further and better particulars of the substituted statement of claim. I recognise that that is to cast upon the defendant the onus of making such a request, in circumstances where it was intended that the substituted statement of claim would provide the particulars required. However, in this case, such a request will give a necessary focus to the areas in which particulars are required, and the nature of the particulars required, and thereby provide clearer direction to Mr Noye of what is necessary in each case.

54 I therefore propose to direct that any such request be filed and served, and that it be responded to, within times to be fixed. I propose to bring the matter back on again to consider the position after the expiration of that time, including the question of the costs of any request by the defendant for further and better particulars of the substituted statement of claim dealing with the matters to which I have referred.

55 I will hear the parties on that and the costs of the application.