HIS HONOUR: On 17 September 2012 Magistrate Stone sitting at Burwood Local Court dismissed a charge of assault occasioning actual bodily harm brought against the first plaintiff. His Honour granted an apprehended personal violence order against him on the same day in favour of the alleged victim of that assault. On 23 March 2013 his Honour Solomon DCJ sitting in the Sydney District Court revoked the apprehended personal violence order.
The first plaintiff filed the statement of claim commencing these proceedings on 6 January 2014. It named four defendants. The first defendant is described as Campsie Police Local Area Command NSW. The second, third and fourth defendants are respectively Constables Rey, Meredith and Stone. The first plaintiff filed an amended statement of claim on 15 May 2014. It joined the State of New South Wales as a fifth defendant.
The court file also contains a document apparently described as a proposed amended statement of claim that was filed on 9 February 2015. The current status of that document is not immediately apparent. His Honour Campbell J made an order in favour of the first plaintiff on 1 October 2014 for referral via the registrar to a pro bono legal adviser for assistance with the preparation of pleadings in proper form. It seems possible that the first plaintiff did obtain legal assistance for that purpose but it also appears that he may have provided some degree of editorial assistance as the document remained significantly deficient.
The court file is replete with notices of motion and documents of uncertain provenance or status. For presently relevant purposes the State of New South Wales seeks a series of orders in terms of its notice of motion filed on 27 February 2015. Presumably in anticipation of the disposition of that motion, the first plaintiff affirmed and filed an affidavit on 19 March 2015 upon which he has sought to rely. I take from at least the matters referred to in paragraph 5 of that affidavit that he wants a period of 28 days to file an amended statement of claim for himself "and the second plaintiff." He does not consent to the State of New South Wales remaining as the sole defendant in the proceedings, but somewhat inconsistently appears to acknowledge that it should be vicariously liable for the acts and defaults of the other defendants. The first plaintiff also appears to indicate that he wishes to persist with his claim in defamation against the second, third and fourth defendants, for whose liability in defamation the fifth defendant contends it can never be responsible having regard to the absolute privilege attending the circumstances in which the matters complained of would appear to have been published. The first plaintiff does concede that his so-called compensation to relatives claim is misconceived and consents to that portion of his claim being struck out.
The remaining issues in dispute would therefore appear to have contracted to whether the current statement of claim should be struck out in whole or in part, whether the first plaintiff should be entitled to replead his case if either of those events occurs, and whether his claim in defamation should independently of the pleading points be dismissed as an abuse of process. There is an additional issue concerning the second plaintiff to which I shall shortly refer.
The events out of which these tortured proceedings spring are the same events that were considered by Magistrate Stone on 17 September 2012. The first plaintiff and his then landlord were apprehended by police when they attended premises at 21 Moreton Street, Lakemba in response to a police radio message in the early evening of 12 January 2011. There they found both men in the final stages of a physical altercation that resulted in injuries to each of them. The first plaintiff was allegedly armed with a power drill. His hand was injured when it was bitten by his opponent. Magistrate Stone was unable to conclude beyond reasonable doubt that the first plaintiff was guilty of the offence with which he was charged. His Honour was apparently and quite understandably unable to resolve the competition between two versions of the same event to the requisite standard of criminal persuasion.
Those criminal proceedings terminated favourably to the first plaintiff, a circumstance that evidently inspired him to formulate at least part of his claim as one for damages for malicious prosecution. Additional claims for wrongful arrest, false imprisonment and for damages for personal injury have materialised as the matter has progressed. The defamation proceedings allege that the statements made by the attending police officers, in accordance with their duties as evidence that they would be prepared to give in court if required, relevantly constitute the matters complained of, although the plaintiff has never specified the defamatory imputations that are said to arise from that material.
It is clear that no version of the first plaintiff's statement of claim was ever put into a proper form. As with the others, the latest version is patently embarrassing and fails in any acceptable or reasonable way to formulate or plead a cause of action known to the law. It is prolix and confusing and not something to which any defendant could be expected to respond. It may be that the State of New South Wales, having regard to what I will assume to be its familiarity with the events giving rise to the proceedings on the one hand and the vaguely comprehensible and discursive contentions and factual references that are scattered throughout the statements of claim on the other hand, could possibly come to a reasonably accurate view of what the plaintiff is on about. That however is neither a matter of certainty nor its obligation as a defendant in the circumstances. The State of New South Wales is entitled to require the first plaintiff to formulate his various claims in a proper manner in accordance with the rules. All versions of the pleadings filed so far by him offend those requirements in several ways and they are all amenable to being struck out.
These comments necessarily apply with equal force to the claims in defamation, but they suffer additionally from the defect that they are not maintainable at all if their foundation is as I have attempted to describe it. See Cabassi v Vila [1940] HCA 41; (1940) 64 CLR 130 at 141; Watson v McEwan [1905] AC 480 at 486; Evans v London Hospital Medical College (University of London) [1981] 1 WLR 184.
The State of New South Wales has submitted that the claims in defamation should be struck out. However, in my opinion the claims should actually be dismissed. Based upon the material before me it seems clear that the first plaintiff's claims in defamation are not maintainable and no attempt to reformulate the way in which they are pleaded could overcome the fundamental difficulty with which they are afflicted. Absolute privilege is a complete answer to the defamation claims.
I have no present confidence, considering the history of this matter so far, including the fact that the first plaintiff has been and remains unrepresented, that any orders that I may make for the efficient conduct of the proceedings from now on would be likely to prove effective. However, despite any misgivings that I may have, it seems apparent that the first plaintiff ought to be permitted on terms to prepare and serve an amended statement of claim if he wishes to do so. The inadequacies of the statements of claim to date should not be permitted to disguise the possibility that a cause of action known to the law might actually exist, currently lurking somewhere as yet undiscovered but potentially capable of proper formulation having regard to the circumstances of the case and the events that have occurred. If the first plaintiff decides to continue with these proceedings, and to that end accepts that he must plead his case in a proper form, he should be required to limit that claim to one naming only the State of New South Wales as the defendant. In that respect I observe that even though the first plaintiff is not entitled to commence proceedings against a police officer except as provided by Part 4 of the Law Reform (Vicarious Liability) Act 1983, the State of New South Wales has quite properly conceded that there is no issue about its vicarious liability for the alleged acts and defaults of the officers concerned and it unreservedly accepts that it is liable for their conduct. To that extent, whatever other view might be taken concerning the adequacy or otherwise of any of the several versions of the first plaintiff's statement of claim, the separately pleaded claims against the individual officers should be struck out.
The second plaintiff is the daughter of the first plaintiff. There is no other discernible connection between her and any of the matters about which the first plaintiff appears to complain. One of the orders sought in the notice of motion filed by the State of New South Wales is that the second plaintiff's cause of action be struck out. That application must be taken to be limited to the contention that the second plaintiff either has no other as yet unpleaded claim of her own or has so far failed properly to plead it if she does.
The second plaintiff is entitled to bring proceedings against the State of New South Wales if she can establish a basis for doing so. Thus far no pleading filed in these proceedings has given the slightest indication that the second plaintiff has any connection with the facts upon which the first plaintiff has sought to rely beyond the fact that she is his daughter. That would appear in the present scheme of things to be completely irrelevant. The current pleading suffers from all of the same deficiencies, from the point of view of the second plaintiff, as those that apply to her father.
There is an added complication. The first plaintiff's affidavit annexes a medical report dated 23 December 2014 from Dr Maree Chanter. She is a psychiatrist. Dr Chanter expresses the opinion that the second plaintiff suffers from schizophrenia and agoraphobia. It is apparent that the first plaintiff seeks appointment as her tutor and has filed a consent to act in that capacity in her behalf. I observe for present purposes that I am not considering that issue and am not prepared to make any orders concerning the second plaintiff's status as a litigant in need of a tutor. There are several reasons for taking that position, not the least of which being that the evidence in support of the making of such an order is deficient.
In my opinion the following orders should be made:
1. I dismiss the plaintiffs' claim in defamation.
2. I otherwise strike out the statement of claim.
3. I grant leave to the plaintiffs to file and serve any further statement of claim upon which either of them intends to rely by no later than 4.00 pm on 23 April 2015.
4. I order the plaintiffs to pay the costs of the State of New South Wales of and incidental to this notice of motion.
5. I appoint Monday 4 May 2015 at 9.30 am before me for directions.
6. I grant liberty to apply on 48 hours' notice.
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Decision last updated: 30 March 2015