Judgment (381 paragraphs)

[1]

MICKELBERG & ORS -v- THE STATE OF WESTERN AUSTRALIA & ORS [2007] WASC 140 (29 June 2007)

[2]

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

[3]

CITATION : MICKELBERG & ORS -v- THE STATE OF WESTERN AUSTRALIA & ORS [2007] WASC 140

[4]

RAYMOND JOHN MICKELBERG & PETER MICKELBERG AS EXECUTORS OF THE ESTATE OF BRIAN MICKELBERG (DEC)

[5]

ELIZABETH MARY HANCOCK AS EXECUTRIX OF THE ESTATE OF DONALD LESLIE HANCOCK (DEC)

[6]

MARK LEWANDOWSKI AS REPRESENTATIVE OF THE ESTATE OF ANTHONY LEWANDOWSKI (DEC)

[7]

Practice and procedure - Application to strike out statement of claim - Claim of misfeasance in public office by police officers - Whether claim for misfeasance in public office available for acts occurring after defendant ceased to hold office - Whether State vicariously liable for unlawful conduct of police officer - Application of Enever v The King - Whether witness immunity applies to alleged acts of police officers in connection with investigation and prosecution of offences - Limitation of action - Fraudulent concealment of evidence of unlawful acts - Whether defendants estopped from relying on limitation period

[8]

Crown Suits Act 1947 (WA), s 5, s 6

[9]

Police Act 1892 (WA), s 137, s 138

[10]

Claim against second to eighth defendants struck out in part

[11]

First Defendant : Mr G T W Tannin SC & Ms M J Paterson

[12]

Second Defendant : Mr E M Corboy SC & Ms K A Vernon

[13]

Fourth Defendant : Mr E M Corboy SC & Ms K A Vernon

[14]

Seventh Defendant : Mr E M Corboy SC & Ms K A Vernon

[15]

Eighth Defendant : Mr E M Corboy SC & Ms K A Vernon

[16]

First Defendant : State Solicitor for Western Australia

[17]

1 NEWNES J: I have before me applications by all the defendants, apart from the third defendant, to strike out the whole or various parts of the plaintiffs' re-amended substituted statement of claim. After the applications were made, the plaintiffs filed a minute of further re-amended substituted statement of claim and that was the subject of argument on the application. I will refer to it for convenience as the "statement of claim".

[18]

2 The plaintiffs' claim arises out of a theft of gold bullion from the Perth Mint on or about 22 June 1982, in what is commonly known, and is referred to in the statement of claim, as the "Perth Mint Swindle". Donald Leslie Hancock ("Hancock"), Anthony Lewandowski ("Lewandowski") and the fourth to eighth defendants were police officers who were engaged in the investigation of it. The first and second plaintiffs and Brian Mickelberg were each convicted of a number of offences in connection with the Perth Mint Swindle and, on 18 March 1983, sentenced to a substantial term of imprisonment. Unsuccessful appeals by the first and second plaintiffs and Brian Mickelberg followed, together with other civil action arising out of the Perth Mint Swindle and their conviction. On 2 July 2004, the Court of Criminal Appeal, by a majority, quashed the convictions of the first and second plaintiffs, Brian Mickelberg having died on 27 February 1986.

[19]

3 In this action, the plaintiffs claim damages against the second to eighth defendants for misfeasance in public office in relation to the investigation and prosecution of the plaintiffs, and against the first defendant on the basis that it is liable for the alleged wrongful acts of second to eighth defendants.

[20]

4 The statement of claim runs to 181 pages. It is necessary, at the risk of oversimplification, to set out the import of it to make explicable the grounds of objection advanced by the defendants.

[21]

5 In the action, the first and second plaintiffs sue on their own behalf and also, as third plaintiff, as executors of the estate of Brian Mickelberg.

[22]

6 The first defendant is the State of Western Australia and the second to eighth defendants are former police officers or their personal representatives. The second defendant is the executrix of the estate of Hancock and the third defendant is the representative of the estate of Lewandowski. Hancock, Lewandowski and the fourth to eighth defendants were all formerly serving police officers. (Where I refer to Hancock, Lewandowski and the fourth to eighth defendants collectively I will refer to them as the "second to eighth defendants".)

[23]

7 In the statement of claim, the plaintiffs plead the fact of the Perth Mint Swindle and the investigation of the plaintiffs in connection with it by the Western Australian Police Service.

[24]

8 In par 4 of the statement of claim, the plaintiffs plead that the investigating officers owed to each of the plaintiffs a duty to conduct the investigation honestly and thoroughly, not to fabricate evidence against any of the plaintiffs, to assess the evidence lawfully and properly obtained against each of the plaintiffs in order to determine whether there was enough material upon which a prosecution could be based, not to commence any prosecution against any of the plaintiffs on the basis of evidence they knew to be fabricated, and not to assist in the maintenance of any prosecution or subsequent conviction of the plaintiffs on the basis of evidence that they knew to be fabricated.

[25]

9 The plaintiffs plead in par 5 of the statement of claim that the second to eighth defendants were, and each of them was, at all material times:

[26]

(a) acting or purporting to act in their capacity as officers (or former officers), servants (or former servants) or agents (or former agents) of the first defendant; further and alternatively

[27]

(b) public officers appointed as police officers pursuant to s 6 and s 7 of the Police Act 1892 (WA); further and alternatively

[28]

(c) acting or purporting to act pursuant to authority granted by the provisions of the Police Act 1892 (WA) in the performance or the purported performance of their duties as officers of the police in the State of Western Australia.

[29]

10 The plaintiffs plead in par 7 that, on or about various dates in 1982, Hancock, Lewandowski and the fourth, sixth and seventh defendants fabricated notes of interviews said to have taken place with one or other of the plaintiffs.

[30]

11 It is alleged in par 23 of the statement of claim that, on 26 July 1982, Hancock and Lewandowski threatened and assaulted the second plaintiff and unlawfully detained him at the offices of the Belmont CIB.

[31]

12 It is pleaded in par 24 that, on 26 July 1982, Hancock formally charged each of the plaintiffs with 3 counts of false pretences, 2 of arson and 2 of breaking, entering and stealing.

[32]

13 The plaintiffs plead in par 28 that subsequently Hancock made up, or caused to be made up, a hand up brief statement that he knew to be false and perjurious in certain respects, and which he knew would be provided to the Crown Law Department as a statement of proposed evidence for the prosecution. It is pleaded in par 29 to par 33 that each of Lewandowski and the fourth to eighth defendants did likewise.

[33]

14 It is alleged in par 35 of the statement of claim that as a direct consequence of the conduct of the second to eighth defendants, the plaintiffs were indicted on 1 count of conspiring together to defraud the director of the Perth Mint, 3 of false pretences, 2 of breaking, entering and stealing and 2 of arson.

[34]

15 The plaintiffs were tried on those counts at the District Court in Perth between 7 February 1983 and 7 March 1983. The plaintiffs allege in par 38 to par 43 of the statement of claim that each of the second to eighth defendants gave false and perjurious evidence at the trial.

[35]

16 It is alleged that as a result of the earlier conduct of the second to eighth defendants, and their false and perjurious evidence at the trial, the first and second plaintiffs were convicted of all of the offences with which they were charged and Brian Mickelberg was convicted of 1 count of conspiracy to defraud and 3 of false pretences. The first plaintiff was sentenced to 20 years' imprisonment with a minimum term of 12 years, the second plaintiff was sentenced to 16 years' imprisonment with a minimum term of 9 years and Brian Mickelberg was sentenced to 12 years' imprisonment with a minimum term of 7 years. The plaintiffs plead that in determining the appropriate sentence the trial Judge took into account the failure of the plaintiffs to show any remorse and the allegations made by them against members of the police investigating team, and in particular, against the second to eighth defendants.

[36]

17 The plaintiffs plead in par 49 to par 50 of the statement of claim that in 1983 an appeal by the second plaintiff was dismissed, but an appeal by Brian Mickelberg was upheld and his convictions quashed. It is pleaded in par 51 and par 52 that appeals by the first and second plaintiffs for an extension of time to appeal against their convictions were dismissed in 1984.

[37]

18 The pleas in par 53 to par 59 of the statement of claim deal with an inquiry by Chief Superintendent Barthelmeh in 1985 into allegations of police misconduct in the course of the investigation into the Perth Mint Swindle (the "Barthelmeh Inquiry"). It is alleged that each of the second to eighth defendants made false and perjurious statements to the Barthelmeh Inquiry.

[38]

19 Paragraph 63 to par 70 of the statement of claim deal with the first and second plaintiffs' appeal to the Court of Criminal Appeal in 1987. It is alleged that, in relation to that appeal, Lewandowski swore a false and perjurious affidavit and gave false and perjurious evidence at the appeal. The appeals were dismissed. The second plaintiff's subsequent appeal to the High Court led to the appeal being remitted in part to the Court of Criminal Appeal, where it was subsequently dismissed.

[39]

20 The plaintiffs plead in par 71 to par 72 of the statement of claim that in 1992 they obtained expert evidence that certain pages of notes of interview were not contemporaneous and had been substituted. They allege in par 74 to par 75 that Lewandowski and Hancock made false and perjurious statements in relation to that evidence and that those statements were later tendered at the plaintiffs' 1998 appeal against their convictions.

[40]

21 The 1998 appeal is dealt with in par 76 to par 88 of the statement of claim. It is alleged in relation to the appeal that Lewandowski swore two false and perjurious affidavits and that Hancock and the eighth defendant each swore a false and perjurious affidavit. It is also alleged that they each gave false and perjurious evidence at the appeal.

[41]

22 The plaintiffs plead that the Court of Criminal Appeal placed substantial reliance on the evidence of, in particular, Hancock, Lewandowski and the fourth to seventh defendants, in dismissing the plaintiffs' appeals.

[42]

23 The plaintiffs allege in par 89 of the statement of claim that, as from 18 March 1983, the second to eighth defendants actively and deliberately concealed their misconduct in connection with the Perth Mint Swindle investigation. In support of the plea, the plaintiffs plead in par 90 to par 97 a number of public statements allegedly made by Hancock and the fourth defendant between March 1983 and June 1992 in relation to the matter. They also allege in par 98 that Lewandowski swore a false and perjurious affidavit in civil proceedings in 1985 to the effect that he had not fabricated any evidence against the first and second plaintiffs and that his evidence at their trial was true and correct in every respect.

[43]

24 It is further pleaded in par 99 to par 103 that, in connection with certain other civil proceedings, on 4 February 1993 and again on 8 March 1994, Hancock swore a false and perjurious affidavit to the effect that the evidence he gave at the plaintiffs' trial and subsequent appeals was true and correct and that Lewandowski, on 1 June 1993 and 9 March 1994, also swore affidavits to a similar effect.

[44]

25 It is pleaded in par 104 to par 106 of the statement of claim that, in relation to various civil proceedings, on 31 October 2003 the fourth, sixth and seventh defendants each swore a false and perjurious affidavit to the effect that all evidence given by them at the plaintiffs' trial was true and correct in all respects.

[45]

26 It is alleged in par 106A to par 106C that false and perjurious affidavits were sworn in civil proceedings by the sixth defendant on or about 2 November 2003, by the fourth defendant on or about 3 November 2003 and by the seventh defendant on or about 4 November 2003, to the effect that all the evidence given by them at the plaintiffs' trial was true and correct in all respects.

[46]

27 The plaintiffs also allege active concealment on the part of the eighth defendant in par 108A to par 108C, it being pleaded that that concealment consisted of statements made by the eighth defendant to the media in June 2002 in relation to the investigation of the Perth Mint Swindle.

[47]

28 The plaintiffs plead at par 107 of the statement of claim that, on 5 June 2002, Lewandowski swore an affidavit in which he stated, among other things, that notes of interview with the plaintiffs had been fabricated, that all of the evidence he and Hancock had given as to the confessions by the plaintiffs was false and that he (Lewandowski) had committed offences in the course of his involvement in the Perth Mint Swindle investigation and the arrest and conviction of the plaintiffs.

[48]

29 The plaintiffs' appeal in 2002 to the Court of Criminal Appeal is dealt with in par 109 to par 119 of the statement of claim. It is alleged that, on or about 28 November 2002, the fourth defendant swore two false and perjurious affidavits in relation to the appeal to the effect that all of the evidence given by him at the plaintiffs' trial was true and correct in all respects. It is alleged that affidavits to similar effect were sworn by the fifth defendant on 2 December 2002, by the sixth defendant on 10 December 2002 and by the eighth defendant on 20 December 2002.

[49]

30 It is also alleged that, on 10 and 11 December 2002, the fifth defendant gave false and perjurious evidence to the Court of Criminal Appeal on the appeal.

[50]

31 It is pleaded in par 118 of the statement of claim that, on 2 July 2004, the Court of Criminal Appeal, by a majority, quashed the first and second plaintiffs' convictions in relation to the Perth Mint Swindle.

[51]

32 The plaintiffs plead at par 120 of the statement of claim that the acts of the second to eighth defendants, referred to earlier in the statement of claim, were attempts to pervert the course of justice, and were invalid and unauthorised acts in that they were contrary to law and unauthorised by the first defendant, alternatively by the provisions of the Police Act 1892; that they were done in discharge or purported discharge of their duties as police officers (or former police officers) of the State of Western Australia; that the acts were so contrary to law and their duties as to give rise to the inference that at the time they each knew that the acts were illegal, invalid, unauthorised by the first defendant and beyond the powers granted to a police officer, and that the performance of which would be likely to cause harm or injury to the plaintiffs; and that by their active concealment of the acts, or alternatively from the nature of the acts themselves, they acted with malice and corruption.

[52]

33 It is alleged, in the alternative, that the second to eighth defendants were each recklessly indifferent or deliberately blind to the illegality, invalidity and ultra vires nature of the acts and the likelihood that the acts would cause harm or injury to the plaintiffs.

[53]

34 The plaintiffs plead in par 122 that the plaintiffs suffered loss and damage by what are described as the "Primary Acts of Misconduct", being that:

[54]

Hancock, Lewandowski and the fourth to seventh defendants fabricated notes of interview;
Hancock and Lewandowski assaulted the second plaintiff;
Hancock, Lewandowski and the fourth to seventh defendants prepared false and perjurious statements for the hand up brief in 1982 for use at the trial; and
Hancock, Lewandowski and the fourth to seventh defendants gave false and perjurious evidence against the plaintiffs at the trial.

[55]

35 It is evident from the pleading that that conduct is alleged to have occurred between July 1982 and March 1983.

[56]

36 The plaintiffs plead in par 123 and par 124 that they suffered loss and damage by what are described as the "Secondary Acts of Misconduct" - that is, acts in furtherance of the Primary Acts of Misconduct - namely:

[57]

The second to eighth defendants made false and perjurious statements to the internal police inquiry, the Barthelmeh Inquiry, in 1985;
Lewandowski made a false and perjurious affidavit in the 1987 appeal; and
Lewandowski gave false and perjurious evidence at the 1987 appeal.

[58]

37 In par 125 and par 126 of the statement of claim the plaintiffs plead that they suffered loss and damage by reason of what are described as the "Tertiary Acts of Misconduct" - acts in furtherance of the Primary and Secondary Acts of Misconduct - which are said to be:

[59]

Lewandowski made a false and perjurious statement to the police service, later used in the 1998 appeal;
Hancock made a false and perjurious statement to the police service, later tendered in evidence in the 1998 appeal;
Hancock, Lewandowski and the eighth defendant swore false and perjurious affidavits in relation to the 1998 appeal; and
Hancock, Lewandowski and the eighth defendant gave false and perjurious evidence at the 1998 appeal.

[60]

38 The plaintiffs plead in par 127 to par 131F of the statement of claim that they suffered loss and damage by reason of what are described as the "Supplementary Acts of Misconduct" - that is, acts in furtherance of the Primary Acts of Misconduct and to conceal that misconduct - being:

[61]

Hancock in 1983 made false public statements to the media, and the second to eighth defendants made false and perjurious statements to the Barthelmeh Inquiry;
Hancock made false public statements to the media in 1987 and 1992 and the fourth defendant did so in 1987;
Hancock, Lewandowski and the fourth to seventh defendants swore false and perjurious affidavits in civil proceedings in 1985, 1990, 1993, 1994 and 2003;
the eighth defendant made false and misleading public statements; and
the fourth, fifth, sixth and eighth defendants swore false and perjurious affidavits in the 2002 appeal.

[62]

39 The plaintiffs plead in par 131G that each of the second to eighth defendants engaged in a continuing attempt to pervert the course of justice by concealing the wrongful acts in which the plaintiffs allege that the second to eighth defendants had engaged in the course of the investigation of the Perth Mint Swindle (described as the "Continuing Acts of Misfeasance").

[63]

40 It is alleged in par 131I that the conduct of the second to eighth defendants in that concealment was so contrary to law that they must have known it was contrary to law, invalid, unauthorised and beyond the powers of a police officer, and was likely to cause harm to the plaintiffs. Alternatively, they were recklessly indifferent or deliberately blind to the illegality, invalidity and ultra vires nature of their conduct in concealing those matters, and the likelihood it would cause harm to the plaintiffs.

[64]

41 In par 132 of the statement of claim the plaintiffs plead again the duties pleaded in par 4 of the statement of claim and in par 133 plead that the second to eighth defendants were in breach of those duties to the plaintiffs in concealing their wrongful conduct in the manner alleged in the statement of claim.

[65]

42 In par 134 and par 135, the plaintiffs allege that the ongoing breaches of duty by the second to eighth defendants from the time of the occurrence of the relevant events until, in the case of Hancock his death on 1 September 2001, in the case of Lewandowski his affidavit of 5 June 2002, and of the fourth to eighth defendants the delivery of the reasons for decision of the Court of Criminal Appeal on 2 July 2004, constituted, to their knowledge, invalid and unauthorised acts in purported discharge of their duties as police officers in breach of their duties to the plaintiffs.

[66]

43 It is alleged, in the alternative, in par 136 that the second to eighth defendants were each recklessly indifferent or deliberately blind to the illegality, invalidity and ultra vires nature of their concealment and of the likelihood it would cause harm or injury to the plaintiffs.

[67]

44 It is alleged in par 137 that the concealment of the acts in question has caused the plaintiffs loss and damage in effectively precluding them until 5 June 2002 from bringing these proceedings and obtaining orders quashing their convictions and vindicating their reputations.

[68]

45 The alleged liability of the defendants is then pleaded in par 138 to par 144.

[69]

46 It is alleged in par 138 that the second to eighth defendants acted or purported to act pursuant to one or other of the authority, implied authority, de facto authority or ostensible authority of the first defendant. It is pleaded in par 139 that by their conduct, as set out in the statement of claim, the second to eighth defendants acted in a manner that was inherently corrupt and malicious towards the plaintiffs.

[70]

47 The plaintiffs plead, in par 140 and par 141 of the statement of claim, the provisions of s 137 and s 138 respectively of the Police Act. Section 137, relevantly, provides that the Crown (but not the member of the Police Force concerned) will be liable for a tort committed after 25 November 1999 by a member of the Police Force, without corruption or malice, while performing or purporting to perform the functions of a member of the Police Force.

[71]

48 In respect of acts prior to 25 November 1999, the plaintiffs plead in par 142 of the statement of claim that by reason of:

[72]

the duties owed by the second to eighth defendants as pleaded in par 4,
the fact that the second to eighth defendants were at all material times acting or purporting to act as (or as former) officers, servants or agents of the first defendant, or alternatively as police officers pursuant to the Police Act, or alternatively pursuant to authority granted by the Police Act in the performance or purported performance of their duties as police officers,
the fact that at all material times the second to eighth defendants acted or purported to act pursuant to the authority, alternatively the implied authority, alternatively the de facto authority, alternatively the ostensible authority of the first defendant,

[73]

the first defendant is vicariously liable, alternatively liable as principal for the acts of misfeasance performed by the second to eighth defendants before 25 November 2005.

[74]

49 It is pleaded, in the alternative, in par 143 that the second to eighth defendants are personally liable for those acts of misfeasance.

[75]

50 In respect of acts after 25 November 1999, the plaintiffs plead in par 144 of the statement of claim that the second to eighth defendants are personally liable for the acts of misfeasance alleged to have occurred after that date and that, pursuant to s 138 of the Police Act, the plaintiffs are entitled to request the Treasurer of the first defendant to pay any award of damages (except exemplary and punitive damages) and costs awarded against Hancock, Lewandowski and the fourth to eighth defendants.

[76]

51 The plaintiffs plead in par 145 to par 155 of the statement of claim various heads of damages, to which it is not necessary to refer in any detail.

[77]

52 Although the statement of claim is not always easy to follow, as I understand it and as it was presented by the plaintiffs' counsel in the course of argument on this application, the plaintiffs' case against all of the defendants is based upon claims of misfeasance in public office by the second to eighth defendants, for which the first defendant is liable.

[78]

53 The first defendant seeks to strike out par 5 of the statement of claim, which pleads that at all material times the second to eighth defendants acted or purported to act as officers, servants or agents of the first defendant or public officers under s 6 and s 7 of the Police Act or pursuant to the authority granted by the Police Act. The first defendant contends that the plea is unsustainable because all of the second to eighth defendants ceased to be members of the police force on various dates between 28 January 1994 and 15 January 2001.

[79]

54 It was not in issue that the second to eighth defendants ceased to be police officers on the following dates:

[80]

55 It was submitted on behalf of the first defendant that it was an element of the tort of misfeasance in public office that the defendant alleged to have committed the tort be the holder of a public office. The first defendant could not be liable for any acts of any of the second to eighth defendants alleged to have been committed after the defendant concerned ceased to be a police officer. Once they ceased to be a police officer, their acts could not constitute acts of misfeasance in public office. Further, as they were not employees of the first defendant the acts could not constitute acts for which the first defendant could be vicariously liable.

[81]

56 The first defendant submitted that, in any event, the statement of claim should be struck out in its entirety on the ground that, in light of the decision of the High Court in Enever v The King [1906] HCA 3; (1906) 3 CLR 969, the first defendant is not vicariously liable for acts of police officers committed in the exercise of the independent discretion in fulfilment of their statutory and common law public duties.

[82]

57 It was submitted that it was settled law that when acting in relation to law enforcement a police officer does not exercise a delegated authority, but an original authority. Although a police officer is responsible for unjustifiable acts done by him or her in the exercise of his or her lawful duty, no responsibility attaches to those who appointed the officer. It was submitted that, prior to the introduction in 1999 of s 137 of the Police Act, it was plain that the first defendant was not vicariously liable for any acts of police officers committed in the exercise of their independent discretion in fulfilment of their statutory and common law duty.

[83]

58 Senior Counsel submitted that, in general, acts of police officers which are within their independent discretion include acts relating to law enforcement that are within the ordinary duties of police officers, for the proper discharge of which a police officer is responsible to the public, rather than the government in the first instance, and in relation to which a police officer is not subject to the direction or instruction of the government and over which the government does not exercise control.

[84]

59 It was submitted that in this case the alleged acts for which the first defendant is said to be vicariously liable are, in effect, that one or other of the second to eighth defendants fabricated notes of interviews, threatened and assaulted the plaintiffs, unlawfully deprived the plaintiffs of their liberty, made false and perjurious statements, made false and misleading statements, gave false and perjurious testimony, swore false and perjurious affidavits, and actively and deliberately concealed that wrongful conduct.

[85]

60 Those acts were allegedly engaged in while the second to eighth defendants were purportedly engaged in law enforcement. They were unjustified and unlawful means of performing acts of the general character of acts within the ordinary duties of a police officer. It is not alleged that the first defendant directed, or could lawfully have directed, the second to eighth defendants to do such acts. The alleged acts were plainly committed in the exercise of the independent discretion of the second to eighth defendants as police officers and the first defendant is not liable for those acts.

[86]

61 Senior Counsel further submitted that, even if the acts had not been committed by the second to eighth defendants in the exercise of their independent discretion as police officers, on the plaintiffs' own case the alleged acts of misconduct and illegality were clearly not within the scope of the express or implied authority of the second to eighth defendants as agents of the first defendant and were outside the apparent scope of their authority. The first defendant could not lawfully, and it is not alleged that it did, engage them to commit crimes. Accordingly, they were not acts for which the first defendant is liable as principal.

[87]

62 The first defendant also argued that any claim against it is necessarily barred by virtue of the Crown Suits Act 1947 (WA), there being no allegation of liability of the first defendant for an act of misfeasance arising within a period of one year before the action was brought.

[88]

63 Senior Counsel for the first defendant noted that while s 5 of the Crown Suits Act created substantive rights of action against the State, s 6(1) provides that no such right of action lies unless the party proposing to take the action gives to the State Solicitor "as soon as practicable ... after the cause of action accrues" notice in relation to the proposed action and the action is commenced within one year of the cause of action accruing.

[89]

64 In the present case, the plaintiffs did not provide the required notice, nor did they obtain consent or leave under s 6(2) or s 6(3) respectively, before the proceedings were commenced. The notice requirement under s 6 of the Crown Suits Act is a substantive provision. It is a requirement for the existence of any right of action against the State and non-compliance with it extinguishes any right of action that might otherwise have existed.

[90]

65 On the issue of when notice under the Crown Suits Act was required to be given, it was submitted that any liability of the first defendant must have arisen at the same time as the primary liability of the second to eighth defendants arose for the tort of misfeasance in public office. A cause of action in tort accrues when damage occurs by virtue of the tortious act. A cause of action for misfeasance in public office therefore accrues upon the occurrence of the first significant damage consequential upon commission of the tort.

[91]

66 On the plaintiffs' own case, loss and damage were first suffered by the plaintiffs by reason of the alleged acts of misconduct (other than the alleged Continuing Acts of Misfeasance) either at the time of preparing for the District Court trial or immediately upon the alleged act. Accordingly, any cause of action for misfeasance in public office, apart from a continuing act, can be taken to have accrued at the date of the alleged act.

[92]

67 Apart from the Supplementary Acts of Misconduct and the Continuing Acts of Misfeasance, all the acts alleged occurred prior to 3 June 2002 (that is, more than one year prior to the filing of the writ in these proceedings) and, as any cause of action arose at that time, no proceedings in respect of those acts can be brought.

[93]

68 It was further submitted that no act of misfeasance in public office could occur after the relevant defendant ceased to be a police officer, so no cause of action could accrue after the date upon which the relevant defendant ceased to be a police officer. The present action was not brought within one year of the date upon which any of the second to eighth defendants ceased to be police officers. The proceedings would therefore be statute-barred by effluxion of time under the Crown Suits Act on that ground.

[94]

69 Further, with effect from 25 November 1999, s 137 of the Police Act provided that the first defendant was liable only for anything done by a police officer without corruption or malice. The alleged acts of the second to eighth defendants were corrupt. No action could therefore lie in respect of any of the alleged acts committed after 25 November 1999. No action had been brought within one year of that date.

[95]

70 As to the allegation of concealment, it was submitted that the acts of misconduct were not concealed from the plaintiffs and consequently any limitation period could not be extended.

[96]

71 In respect of the alleged continuing acts, Senior Counsel submitted that it was not apparent in what sense the concealment was alleged to be continuing as no specific acts of concealment were pleaded and no particulars were provided. There was in fact no "continuing" quality about the alleged concealment. The "continuing" act referred to in s 6(1) of the Crown Suits Act is conduct which goes on from day to day and which constitutes a separate and distinct offence each day the conduct continues, such as continuing discharge of effluent, although intermittent but recurring acts may also arguably be "continuing" acts.

[97]

72 In any event, any continuing act of misfeasance in public office ended when each of the second to eighth defendants ceased to be police officers. Further, the continuing act of misfeasance alleged to have been committed by Hancock must have ended at his death on 1 September 2001, more than one year before the proceedings were commenced.

[98]

73 It was submitted by Senior Counsel for the first defendant that the statement of claim also disclosed no reasonable cause of action insofar as the acts relied upon were constituted by the second to eighth defendants giving false and perjurious testimony, swearing false and perjurious affidavits and making false and perjurious statements, because no action lies in respect of evidence given by witnesses in the course of judicial proceedings, however false and malicious it may be. The doctrine of witness immunity extends to cover information or reports given by a witness to legal advisers of a party for the purposes of preparing a proof and to proofs of proposed evidence, and to out of court conduct that is intimately connected with the giving of evidence: D'Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12; (2005) 223 CLR 1 per McHugh J at [99]. That would necessarily include affidavits sworn by witnesses for use in judicial proceedings.

[99]

74 The immunity enures while the witness is relevantly in the "office" of a witness in respect of the legal proceedings in question. While arguably the doctrine does not extend to the deliberate fabrication of such things as notes upon which the witness relies when giving evidence, nevertheless the witness is still able to rely on the immunity for evidence given while in the office a witness, even if not in relation to the fabrication of the notes.

[100]

75 The allegations in respect of the alleged false and perjurious testimony, false and perjurious affidavits and false and perjurious statements should therefore be struck out as disclosing no reasonable cause of action.

[101]

76 The first defendant further contended that the pleas in par 140 and par 141 in relation to the Police Act disclose no arguable cause of action and that the plea in par 138 as to authority is embarrassing as being inadequately particularised and contrary to the plea in par 120.

[102]

The plaintiffs' submissions on the first defendant's application

[103]

77 It was submitted on behalf of the plaintiffs that the decision in Enever (supra) was not established law and that reservations have been expressed about it. There was also uncertainty as to its scope. To refuse to permit the plaintiffs' claim against the first defendant to proceed would risk stifling the development of the law.

[104]

78 It was submitted that while misfeasance in public office was predominantly a tort personal to the public officer, the Crown employer may be vicariously liable if there is de facto or implied authority.

[105]

79 In respect of acts that occurred after the relevant defendant had ceased to be a member of the police service, it was submitted that it was implicit in the statement of claim that each of those acts of misconduct pertained to matters that came within the relevant defendant's knowledge in the course of their duties as a police officer and were undertaken, not as a private citizen, but as a former police officer who had been involved in the investigation of the plaintiffs and their subsequent trial and appeals.

[106]

80 Counsel submitted it was arguable that acts performed after the term of the second to eighth defendants' respective engagements as a police officer may be regarded as acts of misfeasance in public office if they are related and incidental to acts that the person performed during the currency of their engagement; that is, where they were in furtherance of acts of misconduct that had occurred during his term as a police officer.

[107]

81 Counsel acknowledged that he had been unable to find any authority on the point. He submitted that, nevertheless, by reason of the specific and unusual factual circumstances of this case, the argument remained open, in circumstances where it was alleged that the subsequent acts were in furtherance of acts that occurred during the currency of their engagement and were designed to conceal those earlier acts.

[108]

82 Counsel for the plaintiffs argued that it was recognised that the scope and elements of the tort of misfeasance in public office have not yet been well defined and, in view of the developing nature of the tort and the particular circumstances of this case, it was a matter where the Court should be especially astute not to risk stifling the development of the law by summarily dismissing the claim at this stage.

[109]

83 Similarly, if the first defendant was liable as principal for the acts of the second to eighth defendants as agents, there is an arguable case that it is liable for conduct that occurred both during the currency of their appointment and also for conduct that occurred afterwards as a direct result or consequence of their conduct during that appointment.

[110]

84 Counsel submitted that the question of witness immunity was not a matter that, in the circumstances of this case, could be considered apart from the content of the relevant evidence, affidavits or statements and the circumstances in which each was given or made.

[111]

85 In the first place, the immunity of witnesses operates as a defence and the facts relied upon to give rise to the defence must be pleaded. In addition, the fabrication of the notes of interview, the hand up brief statements and other statements were properly seen as an integral part of a fabrication which did not fall within the principle, not merely proofs of evidence which arguably did. It was also arguable that acts of police officers when acting as investigators do not fall within the boundaries of the immunity. The scope of the immunity in the particular case can only be considered in the light of the facts as they emerge at trial: Darker v Chief Constable of The West Midlands Police [2000] UKHL 44; [2001] 1 AC 435. Moreover, in the present case the public policy reasons which underlie the principle of immunity have no application.

[112]

86 It was also arguable that where a relationship giving rise to a vicarious liability exists, the immunity does not necessarily extend to protect the party who is vicariously liable for the conduct of the person who gives evidence: Griffiths v Ballard [2005] NSWSC 1350 at [44] and [47].

[113]

87 On the limitation question, counsel referred to the well-known principle that limitation questions should not be decided in interlocutory proceedings except in the clearest cases. In this case, the plaintiffs allege concealed fraud and ongoing fraudulent conduct, and their case raises complex legal and factual issues, including as to the accrual of the causes of action for each category of conduct and the dates upon which damage was suffered.

[114]

88 In respect of the Crown Suits Act, it was submitted that until the Lewandowski affidavit was sworn on 5 June 2002, the acts of misconduct of the second to eighth defendants remained concealed by their own fraudulent acts and omissions. Time does not run for the purposes of any limitation argument while concealment remains and while the claimant is thereby effectively precluded from bringing their claim to recover the damages to which they are entitled. The defendants are estopped from relying on the limitation period while the defendants conceal their wrongdoing. Counsel referred to Hawkins v Clayton (1988) 164 CLR 539 and State of New South Wales v Mulcahy [2006] NSWCA 303. It was submitted that the 12-month period under the Crown Suits Act had therefore not expired on 4 June 2003, when the writ was filed.

[115]

89 Counsel also submitted that the relevant acts of the second to eighth defendants constituted "continuing" acts within the meaning of s 6 of the Crown Suits Act. It was argued that the Continuing Acts of Misfeasance pleaded by the plaintiffs fell within the definition of a "continuing" act under the Crown Suits Act. Concealment, by its nature, is an omission from action, and omissions, to the extent they may constitute continuing acts, are complex as by their nature they continue until rectified. There were two essential questions; namely, was the duty or requirement to act limited by time and what was the nature of the duty?

[116]

90 There was no time limit upon the duty of the second to eighth defendants to discharge the duties of their office faithfully and according to law, nor upon any citizen's obligation to uphold the law. In considering the nature of the relevant duty, it is necessary to determine whether the acts are to be performed within a time capable of being determined or whether they are capable of being performed over a continuous period: Hammond v Minister for Works (1992) 8 WAR 505 per Ipp J at 509 - 511.

[117]

91 The present case did not involve an obligation to perform a single act upon the occurrence of an event. It concerned the obligation of police officers to uphold the law and discharge the duties of their office faithfully, which is a continuing obligation. The breach of such an obligation is in the nature of criminal conduct. The duty to act extends to conduct subsequent to their office as police officers in respect of conduct performed in the discharge of their public functions; that is, where the relevant defendants continued to perform acts directly related to their duties as police officers. It is therefore arguable that the "continuing" acts alleged continued beyond the period of their engagement as police officers insofar as they purported to continue to exercise, or they related directly to the exercise of, functions of that office.

[118]

92 On the question of notice under the Crown Suits Act, counsel submitted that from September 1983 until April 1998 the plaintiffs or their representatives wrote to various representatives and departments of the first defendant detailing the claim made in these proceedings and requesting that the State take action in respect of it. There can be no suggestion that the first defendant had not received notice of the matters the subject of the claim and the plaintiffs' intention to pursue them. Counsel also referred to the telephone discussion which is said to have taken place with the State Solicitor immediately before the writ was issued.

[119]

93 On the question of particulars, it was submitted that no requests had been made for particulars and any deficiency in particulars ought properly be cured by that course.

[120]

The submissions of the second and fourth to eighth defendants

[121]

94 Senior Counsel for the second and fourth to eighth defendants (to whom I shall refer collectively as the "police defendants") adopted the submissions of Senior Counsel for the first defendant, so far as they were relevant.

[122]

95 Senior Counsel for the police defendants submitted generally that the statement of claim was prolix and confusing because it did not distinguish between the liability of each of the second to eighth defendants for specific conduct although all of the second to eighth defendants had ceased to be police officers (and therefore public officers) on different dates between 1985 and 2001. Moreover, for a continuing tort to be pleaded, there must be repetition of the act of misconduct, not merely repetition of the effect of the previous act of misconduct. Only the latter was alleged.

[123]

96 Senior Counsel submitted that in what are described in the statement of claim as the "Primary Acts of Misconduct", no loss or damage is pleaded in relation to the alleged assault of the second plaintiff, nor is any misconduct alleged against the eighth defendant in relation to those Primary Acts of Misconduct. It was further submitted that it is apparent from par 22 of the statement of claim that the loss and damage allegedly caused by the Primary Acts of Misconduct occurred at about the time they are alleged to have taken place, namely up to 1983. Therefore, the limitation period expired in 1989.

[124]

97 It was argued that the claims relating to the notes of interview and witness statements prepared for the use in the prosecution and trial disclosed no reasonable cause of action. It was the conversion of those documents into evidence through witness testimony that is the gravamen of the alleged misconduct. The misconduct is therefore about witnesses giving false evidence at the trial, to which the doctrine of witness immunity applies. Accordingly, insofar as the plaintiffs' claim relies upon the evidence given by the police defendants at trial it must fail.

[125]

98 It was argued that the "Secondary Acts of Misconduct" fell short of pleading a continuing tort. If the alleged conduct did constitute new acts of misconduct in 1985 and 1987, the loss or damage was still that which occurred in 1983, being the conviction and imprisonment. It was not pleaded that the plaintiffs suffered any fresh loss or damage. It is also not alleged that the participation of the police defendants in the Barthelmeh Inquiry was part of their public duties and therefore no basis for alleging that it constituted misfeasance in public office.

[126]

99 It was submitted in respect of the "Tertiary Acts of Misconduct" that no arguable cause of action was disclosed or, alternatively, that the plaintiffs' claims were statute-barred. In the first place, there was no allegation that the Tertiary Acts of Misconduct involved conduct on the part of the fourth to seventh defendants. Moreover, Hancock ceased to be a police officer on 28 January 1994 so that his acts in relation to the 1998 appeal were not as a public officer in the discharge or purported discharge of a public duty.

[127]

100 It was further submitted that the allegations relate back to the Primary Acts of Misconduct in 1982 and 1983, when any loss or harm was first sustained, so that any cause of action arose well before 1998. The later consequences, or the possibility of consequences, are matters going to damages and not to the cause of action. If there was any new cause of action arising in respect of the Tertiary Acts of Misconduct, it has not been pleaded. It was also submitted that witness immunity would apply to the matters alleged.

[128]

101 It was further submitted that there was no continuing tort. The alleged misconduct was simply a repetition of the effect of allegedly fabricated notes of interviews, witness statements and false evidence given at the trial. There is no plea of a repetition of tortious conduct and no cause of action is disclosed.

[129]

102 In relation to the "Supplementary Acts of Misconduct", it was submitted in relation to the public statements allegedly made by one or other of the police defendants that there is no plea that they constituted acts performed in the discharge of the duties of a public officer and therefore they could not give rise to a cause of action. Moreover, the public comments allegedly made by the eighth defendant were made after he resigned from the police service.

[130]

103 The civil proceedings referred to in the "Supplementary Acts of Misconduct" were not matters in which the relevant defendants were engaged as public officers, but rather were actions against the individual officers in their personal capacities. Moreover, Hancock and the fourth and seventh defendants had ceased to be members of the police force prior to swearing the allegedly false affidavits. In addition, the damage allegedly said to flow does not give rise to a new cause of action or a continuing tort because it flowed from the effects of the Primary Acts of Misconduct alleged, and the damage therefore occurred in 1982 and 1983.

[131]

104 In relation to the affidavits sworn in connection with the 2002 appeal, it was submitted that the fourth defendant had by then ceased to be a police officer and, while the fifth and sixth defendants were still serving police officers, it is not alleged that in swearing the affidavits they were acting in the performance or discharge of a public duty. Moreover, the principle of witness immunity applied. There was therefore no cause of action, or new cause of action, and the damages pleaded are those which allegedly flowed from the acts alleged in 1982 and 1983, apart from the costs of engaging lawyers for the appeal.

[132]

105 In relation to the alleged Continuing Acts of Misfeasance, it was submitted that concealment itself was not tortious conduct or a continuing wrong. Nor does the fact that the tort may have effects over time indicate it is a continuing tort. Thus, in a personal injury action, a plaintiff may be injured on a specific date but suffer other consequences years later. The tort which caused the injury is not a continuing one.

[133]

106 It is not alleged that the misconduct pleaded against the police defendants had the effect of preventing proceedings being instituted by the plaintiffs by the suppression of vital facts which, if known, would have allowed the proceedings to be issued. The alleged facts were always known to the plaintiffs. The plaintiffs had made allegations of fabricated evidence since 1983 and obtained expert evidence on the subject in 1992. The existence of the cause of action was not, therefore, concealed from them by the actions of the police defendants. On the plaintiffs' case what was concealed, at most, was the true nature of the evidence, not the fact that they had a right to bring proceedings for damages. There is thus no basis for a concealment argument to extend the limitation period for alleged misfeasance in public office. Moreover, the damage pleaded remains throughout the same; namely, the damage suffered by reason of the Primary Acts of Misconduct in 1982 and 1983.

[134]

The plaintiffs' submissions on the police defendants' application

[135]

107 Counsel for the plaintiffs adopted his submissions in opposition to the application of the first defendant, so far as relevant.

[136]

108 It was submitted by counsel for the plaintiffs that it was incorrect to say that the only question for the Court in respect of limitation questions is the date on which harm is suffered. In any event, that in itself gives rise to a variety of questions which could only be determined at trial. Moreover, the plaintiffs rely upon the estoppel referred to in the submissions made in answer to the first defendant's application.

[137]

109 In respect of the Secondary Acts of Misconduct, it was submitted that it appears from a fair reading of the pleading that the participation of the police defendants in the Barthelmeh Inquiry was part of their public duties and that will be the evidence at trial. It is also arguable that fresh loss occurred as a result of their conduct in relation to that inquiry and the appeal because it caused the plaintiffs to be refused a re-trial.

[138]

110 In relation to the Tertiary Acts of Misconduct, the acts referred to were integral to the police defendants' fabrication, and on the part of Hancock and the eighth defendant constituted new fabrications giving rise to fresh loss and damage.

[139]

111 Counsel for the plaintiffs submitted that it was a misapprehension of the plaintiffs' reference to the Supplementary Acts of Misconduct to suggest that those acts are intended to form the basis of separate causes of action. They form part of the Continuing Acts of Misfeasance as part of the ongoing concealment by the police defendants. Counsel argued that it is apparent from the media statements that they were made by the defendants concerned in purported discharge of some public duty, not as statements of a private citizen.

[140]

Do the plaintiffs have an arguable claim against the first defendant?

[141]

112 The principles applicable on an application of this sort are well established and I did not understand them to be in dispute on this application.

[142]

113 A claim will be struck out as disclosing no reasonable cause of action only if it so obviously untenable it cannot possibly succeed or is manifestly hopeless. A case must be very clear indeed to justify the summary intervention of the Court to prevent a plaintiff submitting his or her case for determination at trial. Great care must be exercised to ensure that the plaintiff is not improperly deprived of the opportunity for a trial of their claim: General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125, per Barwick CJ at 130.

[143]

114 Moreover, a court at first instance should be careful not to risk stifling the development of the law by summarily rejecting a claim where there is a reasonable possibility that, as the law develops, it will be found that a cause of action will lie: Hospitals Contribution Fund of Australia v Hunt (1982) 44 ALR 365 at 373.

[144]

115 Against that background it is convenient to turn at the outset to the first defendant's submission that what has been described as the Enever principle must necessarily defeat the plaintiffs' claims against it.

[145]

116 In Enever v The King (supra), the plaintiff claimed against the Crown for damage sustained by him in consequence of his wrongful arrest by a police constable. The High Court held that no action lay against the Crown. The police constable in arresting the plaintiff was exercising, not a delegated authority, but an original authority and no liability attached to the person by whom the police constable was appointed. The law of agency had no application. Griffiths CJ said (at 975 - 977):

[146]

"At common law the office of constable or peace officer was regarded as a public office, and the holder of it as being, in some sense, a servant of the Crown. The appointment to the office was made in various ways, and often by election. In later times the mode of appointment came to be regulated for the most part by Statute, and the power of appointment was vested in specified authorities, such as municipal authorities or justices. But it never seems to have been thought that a change in the mode of appointment made any difference in the nature or duties of the office, except so far as might be enacted by the particular Statute. Again, at common law constables had large powers necessarily incident to the discharge of their functions as peace officers or conservators of the peace, amongst which perhaps the most important was the authority to arrest on suspicion of felony. To these powers others of a like nature have from time to time been added by statutory provisions, of which the 179th section of the Police Act is an instance. But there is no reason for thinking that the mere statutory addition to the list of their powers altered the essential nature of those powers. It seems also to have been always accepted as settled law that, although a peace officer was himself responsible for unjustifiable acts done by him in the intended exercise of his lawful authority, no responsibility for such acts attached to those by whom he was appointed.

...

A consideration of the general doctrine of the law of agency as applied to the case of a constable leads to the same conclusion. In considering whether a master is liable for the acts of his servant the test is ... whether the party sought to be made responsible retained the power of controlling the act. Now, the powers of a constable, qua peace officer, whether conferred by common or statute law, are exercised by him by virtue of his office, and cannot be exercised on the responsibility of any person but himself. If he arrests on suspicion of felony, the suspicion must be his suspicion, and must be reasonable to him. If he arrests in a case in which the arrest may be made on view, the view must be his view, not that of someone else. Moreover, his powers being conferred by law, they are definite and limited, and there can be no suggestion of holding him out as a person possessed of greater authority than the law confers upon him ... A constable, therefore, when acting as a peace officer, is not exercising a delegated authority, but an original authority, and the general law of agency has no application."

[147]

"The common law has always recognized the office of constable. The duty of locally preserving the peace in England from the earliest times has been placed upon local bodies, upon the decennaries and hundreds in the time of Alfred, and later upon different local bodies, in more modern times upon the Boroughs and Municipalities. The recognized officers for the preservation of the peace in these localities have been the constable or constables chosen, elected, or appointed by the local bodies as by law provided. The power to arrest for breach of the peace or other offences is given by the common law, not to the local bodies responsible for keeping the peace, but to their officer the constable ... Statutes giving power to arrest have followed the same principle. The power to arrest is given not to the local body, nor the municipality, nor, in cases where a Government Police Force exists, to the Government - but to a constable, that is to a person who for the time being holds the office of constable."

[148]

118 O'Connor J referred (at 993) to the principle, stated by Erle CJ in Tobin v The Queen [1864] EngR 21; (1864) 16 CBNS 310 at 351, that when the duty to be performed is imposed by law, and not by will of the party employing the agent, the employer is not liable for the wrong done by the agent in such employment, and continued (at 993 - 994):

[149]

"That principle is, to my mind, clearly applicable to the facts under consideration. In this case the duty of arrest in the particular instance was imposed upon the constable by the law, and not by will of the Government. For the proper discharge of that duty he was responsible to the public in the first instance, and if the Government had taken upon themselves to interfere with him in the discharge of that duty, it would have been no answer to a prosecution by a member of the public for neglect of duty that he had been commanded by the Government to abstain from carrying it out ... In this case the authority to arrest is not conferred on the Government, nor is it to be exercised on behalf of the Government, it is conferred on the constable as the holder of a recognized public office to which well known duties and responsibilities are attached. He made the arrest in the discharge of his duty as holder of the office of constable, and not by the direction or under the control of the Government. His act was thus not the act of the Government by its servant, but was his own act, done in the exercise of his duty as constable, and in the doing of it the relation of master and servant between him and the Government cannot be implied."

[150]

119 The judgment of Barton J was to the same effect.

[151]

120 I do not accept the submission on behalf of the plaintiffs that Enever is not settled law. The decision has clearly been the subject of some criticism but in the period of more than 100 years since it was decided it has not been overturned and it has been applied on a number of occasions in Australia and referred to with approval at the highest appellate level.

[152]

121 In Field v Nott [1939] HCA 41; (1939) 62 CLR 660, the High Court held that, although a servant of the Crown, the officer in charge of the Legal Aid Office in respect of certain duties was exercising an independent duty cast upon him by the rules of court and the Crown was not answerable to third parties for his wrongful acts or omissions in the course of exercising those duties. Dixon J said (at 675) in relation to the question of whether there was a breach of duty for which the Crown was answerable:

[153]

"The ... question must, I think, be answered against the appellant upon a principle, by now familiar, affecting the civil responsibility of the Crown for the acts of public officers. When a public officer, although a servant of the Crown, is executing an independent duty which the law casts upon him, the Crown is not liable for the wrongful acts he may commit in the course of his execution. As the law charges him with a discretion and responsibility which rests upon him in virtue of his office or of some designation under the law, he alone is liable for any breach of duty. The Crown is not acting through him and is not vicariously responsible for his tort ... Enever v The King."

[154]

122 In Attorney-General for New South Wales v Perpetual Trustee Company Ltd [1955] HCA 9; (1955) 92 CLR 113, Enever was referred to with approval by the Privy Council.

[155]

123 In Oceanic Crest Shipping Co v Pilbara Harbour Services Pty Ltd [1986] HCA 34; (1985) 160 CLR 626, Gibbs J (at 637) described Enever as "firmly established as part of the common law in Australia".

[156]

124 More recently, the principle in Enever has been referred to with apparent approval by the High Court in Jarratt v Commissioner of Police for New South Wales [2005] HCA 50; (2005) 224 CLR 44. In that case, the appellant claimed that he had been denied procedural fairness in his dismissal from the police force. In the course of his judgment, Gleeson CJ referred (at 49) to the judgment of Griffiths CJ in Enever and observed:

[157]

"The individual authority and responsibility of constables gave rise to particular legal consequences, such as the absence at common law of vicarious responsibility on the part of the body or authority appointing the constable."

[158]

125 In the same case, McHugh, Gummow and Hayne JJ observed (at 65) that the ancient office of constable or peace officer was one with peculiar characteristics and referred to the principle stated by Griffiths CJ in Enever that "whilst ... the holder of an office of constable or peace officer was regarded by the common law 'as being, in some sense, a servant of the Crown', the responsibility for unjustifiable acts of such an officer did not extend to the appointor to the office." Callinan J said (at 81):

[159]

"Historically, even though police officers are paid and appointed by the State, the State is not, in the absence of statutory mandate, vicariously liable for their actions: a police officer is not an agent or servant of the Crown. The incidents of the relationship between the Crown and a police officer, and the personal obligations of the latter are fully explained in Enever v The King."

[160]

126 In New South Wales v Ibbett [2006] HCA 57; (2006) 231 ALR 485, the respondent had made a claim of trespass and assault against a police officer. In its judgment, the High Court referred to New South Wales legislation which rendered the State generally amenable to an action in tort based upon vicarious liability. The Court said, however, referring to the decision in Enever:

[161]

"In former times, the circumstance that police officers often acted in the exercise of common law or statutory powers and according to 'independent' discretions would have taken an action such as that of [the appellant] outside the scope of the vicarious liability of the Crown."

[162]

127 In Ferdinands v Commissioner for Public Employment [2006] HCA 5; (2006) 225 CLR 130, Kirby J said:

[163]

"The decision in Enever, inconvenient as it was, has never been overruled by this Court. It has been followed and applied in many cases. Extensive legislation has been enacted throughout the Commonwealth to overcome its effect and to provide for governmental liability for defined acts and omissions of police officers."

[164]

128 See, too, to similar effect, New South Wales v Fahy [2007] HCA 20 per Kirby J at [94].

[165]

129 The decision in Enever has been accepted as a correct statement of the law in relation to a police officer in Western Australia: see Pense v Hemy [1973] WAR 40 at 42 - 43.

[166]

130 In Western Australia, the position has more recently been altered to some extent by amendments to the Police Act in 1999, to which I will come shortly, but otherwise I consider that Enever remains a correct statement of the law in Western Australia.

[167]

131 It is the case that in Middleton v The State of Western Australia (1992) 8 WAR 256, Acting Master Hawkins considered that the decision in Enever was out of step with subsequent developments in the law regarding the vicarious liability of the Crown and concluded that:

[168]

"There is the possibility that there may be the embryonic dismantling of the law if the matter is considered by a high enough authority."

[169]

132 The Acting Master considered that to refuse the plaintiff leave to bring a claim against the State risked stifling the development of the law and he therefore gave that leave.

[170]

133 With respect, I do not think there is any basis to conclude that the decision in Enever is other than binding, or that there might be any "embryonic dismantling of the law" so as to entitle a court at first instance to allow a claim against the State to be prosecuted. However out of step it is contended the decision in Enever is with other developments in the law of vicarious liability, the decision has stood and been applied for more than 100 years. As I have mentioned, it has been accepted by the High Court on a number of occasions to be the law in Australia, subject to any relevant statutory alteration. It is binding on a court at first instance.

[171]

134 It is appropriate at this point to turn to the alterations to the statutory position in Western Australia which were effected in 1999.

[172]

135 The Police Act was amended with effect from 25 November 1999 by the Acts Amendment (Police Immunity) Act 1999 (WA) which inserted s 137. Relevantly for present purposes, s 137 contained the following provisions:

[173]

"(3) An action in tort does not lie against a member of the Police Force for anything that the member has done, without corruption or malice, while performing or purporting to perform the functions of a member of the Police Force, whether or not under a written or other law.

...

(5) The Crown is liable for a tort that results from -

[174]

(a) anything done by a member of the Police Force, without corruption or malice, while performing or purporting to perform the functions of a member of the Police Force, whether or not under a written or other law;

[175]

(b) anything done by a person, without corruption or malice, in assisting a member of the Police Force who is performing or purporting to perform the functions of a member of the Police Force, whether or not under a written or other law.

[176]

(6) The Crown's liability under subsection (5) does not extend to exemplary or punitive damages."

[177]

136 In his second reading speech, the Minister for Police explained the need for the amendment as follows:

[178]

"In this increasingly litigious society, police are more often finding themselves being sued by an individual for their actions as a police officer. It should be noted that other people, such as public servants paid by the State to provide a service to the community, are protected by vicarious liability legislation where their actions are in good faith. This legislation seeks to extend this protection to police acting lawfully in the performance of their functions as a member of the Police Force ..."

[179]

137 It is against that background that I turn to the case pleaded by the plaintiffs in this action.

[180]

138 The alleged acts by the second to eighth defendants for which the first defendant is sought to be made liable can broadly, but sufficiently, be categorised as:

[181]

(g) actively and deliberately concealing their conduct.

[182]

139 It is clear from the pleading that it is alleged that those acts were committed while the second to eighth defendants were acting or purporting to act as police officers, and engaged or purportedly engaged in law enforcement. The acts are self-evidently unlawful acts. The whole thrust of the plaintiffs' case is that the second to eighth defendants acted corruptly in the purported discharge of their duties as police officers.

[183]

140 It is therefore clear that insofar as the relevant conduct of the second to eighth defendants is alleged to have occurred after 25 November 1999 it is not conduct in respect of which s 137(5) of the Police Act would permit action to be brought against the first defendant.

[184]

141 In respect of the alleged conduct of the second to eighth defendants before 25 November 1999, I consider that it clearly falls within the independent discretion of those defendants as police officers, for which the first defendant is not liable at common law by virtue of the Enever principle.

[185]

142 The acts of a police officer which are within their independent discretion are acts (a) in relation to law enforcement; (b) within the ordinary duties of police officers; (c) for the proper discharge of which police officers are responsible to the public, rather than to the government; (d) in relation to which police officers are not subject to direction or instruction of the government and (e) over which the government does not exercise control: Enever v The King per Griffths CJ at 977, Barton J at 982 - 983 and O'Connor J at 993 - 994; Griffiths v Haines [1984] 3 NSWLR 653.

[186]

143 I accept the submission on behalf of the first defendant that, as the case is pleaded, the acts in question were plainly acts performed while each of the second to eighth defendants were purportedly engaged in law enforcement and were unjustified and unlawful methods of performing acts of the general character of acts within the ordinary duties of police officers. They were not acts of a nature in respect of which the second to eighth defendants were subject to direction or control by the first defendant.

[187]

144 Accordingly, the acts alleged plainly fell within the exercise of the independent discretion of the second to eighth defendants as police officers purportedly in fulfilment of their duty in relation to law enforcement.

[188]

145 It follows from the decision in Enever that the first defendant is not liable for those acts.

[189]

146 It is therefore, strictly speaking, unnecessary to deal with the alternative contentions advanced by the first defendant, but as those matters were fully argued it is appropriate that I indicate my views on them.

[190]

147 The first contention was that, even if the alleged acts of the second to eighth defendants were not committed in the exercise of their independent discretion as a police officer, they were not, in any event, acts for which the first defendant is liable as principal because the acts were outside the express, implied or apparent scope of the authority of those defendants, as servants or agents of the first defendant.

[191]

148 I do not accept that that is clear beyond argument.

[192]

149 There are several leading cases dealing with the question of the vicarious liability of an employer for unlawful acts of an employee which seem to me to be relevant to a determination of that issue and which reveal the difficulties involved in attempting to reach a firm view on the issue at this stage.

[193]

150 In Deatons Pty Ltd v Flew [1949] HCA 60; (1949) 79 CLR 370, the question was whether an assault upon a customer of a hotel by a barmaid in the employ of the publican company was committed in the course of her employment. Dixon J said at 380:

[194]

"In my opinion, however, it is clear that, upon the case made for the plaintiff, a finding could not be supported that the barmaid acted in the course of her employment so that the defendant company would be vicariously liable. For upon the plaintiff's case the assault was as unexplained as it was unprovoked and might have proceeded from private spite on the part of the barmaid or from some other cause quite unconnected with her occupation or employment. So far as the plaintiff's case went to show, nothing occurred which would in any way relate her action to the duties of her office or explain it by reference to anything incidental to what she was employed to do."

[195]

151 His Honour said (at 381) that the barmaid's action was not:

[196]

"... a negligent or improper act, due to error or ill judgment, but done in the supposed furtherance of the master's interests. Nor [was] it one of those wrongful acts done for the servant's own benefit for which the master is liable when they are acts to which the ostensible performance of his master's work gives occasion or which are committed under cover of the authority the servant is held out as possessing or of the position in which he is placed as a representative of his master ..."

[197]

"The damage to the plaintiff was done by the glass. A barmaid who throws an empty glass at a customer is not doing an act of the class which she is employed to do. To throw the beer, much less the glass, at a customer is not a mode, although an improper mode, of serving a customer with beer, and even less a mode, although an improper mode, of answering his request for a glass of beer."

[198]

153 In New South Wales v Lepore [2003] HCA 4; (2003) 212 CLR 511, the respondent had claimed damages for personal injury allegedly suffered as a result of sexual assaults committed upon him while he was a pupil at a public school by a teacher at that school. The majority of the High Court (Gleeson CJ, Gummow, Kirby, Hayne and Callinan JJ, McHugh J dissenting), held that the liability of a school authority, under its non-delegable duty of care over the pupils, does not extend to intentional criminal conduct against a pupil by a teacher employed by the authority.

[199]

154 While the facts of that case were quite different to the present case, the majority undertook a general review of the circumstances in which an employer will be liable for the unlawful act of an employee.

[200]

155 Gleeson CJ (at 535) contrasted, on the one hand, a tort committed within the scope of the employee's employment and, on the other, conduct that could be described as "a frolic of his own", referring to the explanation of that expression by Lord Diplock in Morris v CW Martin & Sons Ltd [1966] 1 QB 716 at 733 - 734. Gleeson CJ observed, however, that the expression "may be of limited assistance in resolving borderline cases". His Honour continued:

[201]

"The best known formulation of the test to be applied is that in Salmond, Law of Torts ... [that] an employer is liable even for unauthorised acts if they are so connected with authorised acts that they may be regarded as modes - although unauthorised modes - of doing them, but the employer is not responsible if the unauthorised or wrongful act is not so connected with the authorised act as to be a mode of doing it, but is an independent act."

[202]

156 Gleeson CJ referred to the decision of the House of Lords in Lloyd v Grace Smith & Co [1912] UKHL 1; [1912] AC 716, where a firm of solicitors was held liable for the conduct of its managing clerk who had defrauded a client of the firm, and said (at 537):

[203]

"If the solicitors' clerk had assaulted the client, or stolen money from her purse, a different result would have followed. In neither of those cases would the clerk have been undertaking duties imposed on him by the nature of his employer's business and the nature of his employment. His act would have been an 'independent' act, of which no more could be said than that the employment created the opportunity for the wrongdoing. In Deatons Pty Ltd v Flew, Dixon J explained the decision as concerning 'one of those wrongful acts done for the servant's own benefit for which the master is liable when they are acts to which the ostensible performance of his master's work gives occasion or which are committed under cover of the authority the servant is held out as possessing or of the position in which he is placed as a representative of his master'. It is the nature of that which the employee is employed to do on behalf of the employer that determines whether the wrongdoing is within the scope of the employment.

An act of negligence may be easy to characterise as an unauthorised mode of performing an authorised act. An act of intentional, criminal wrongdoing, solely for the benefit of the employee, may be easy to characterise as an independent act; but it is not necessarily so, and there are many examples of cases where such conduct has been found to be in the course of employment."

[204]

157 Gummow and Hayne JJ, after referring to the judgment of Dixon J in Deatons, said (at 591 - 592):

[205]

"First, vicarious liability may exist if the wrongful act is done in intended pursuit of the employer's interests or in intended performance of the contract of employment. Secondly, vicarious liability may be imposed where the wrongful act is done in ostensible pursuit of the employer's business or in the apparent execution of authority which the employer holds out the employee as having. [emphasis in original]

What unites those elements is the identification of what the employee is actually employed to do or is held out by the employer as being employed to do. It is the identification of what the employee was actually employed to do and held out as being employed to do that is central to any inquiry about course of employment.

...

Many cases in which it is sought to hold an employer vicariously liable for the intentional tort of an employee can be determined by reference to the first of these elements. The act of which complaint is made can be seen to have been done in the intended performance of the task which the employee was employed to perform. Cases of excessive punishment by a teacher may fall within this category. So too will many cases where a store detective wrongfully arrests and detains a person or in that process assaults them. No doubt the examples could be multiplied.

That kind of analysis is not available in cases of fraud. The commission of a fraud can seldom be said to have been intended performance of the employee's duties. In those cases, however, it will often be the case that what was done by the employee was done in the apparent execution of authority actually, or ostensibly, given to the employee by the employer."

[206]

"For present purposes, it is enough to conclude that when an employer is alleged to be vicariously liable for the intentional tort of an employee, recovery against the employer on that basis should not be extended beyond the two kinds of case identified by Dixon J in Deatons: first, where the conduct of which complaint is made was done in the intended pursuit of the employer's interests or in the intended performance of the contract of employment or, secondly, where the conduct of which complaint is made was done in the ostensible pursuit of the employer's business or the apparent execution of the authority which the employer held out the employee as having."

[207]

159 It is, I think, apparent from their review of the authorities that Gummow and Hayne JJ considered it was not possible to state more specifically the circumstances in which an employer would be liable for the intentional tort of an employee as it involved elements of degree that defied precise definition. In that connection, see too, Gleeson CJ at 539 - 540, and Sweeney v Boylan Nominees Pty Ltd [2006] HCA 19, per Gleeson CJ, Gummow, Hayne, Heydon and Crennan JJ (at [11]).

[208]

160 As Williams JA observed in Ryan v Ann St Holdings Pty Ltd [2006] QCA 217; [2006] 2 Qd R 486, each case in this area of the law is very much dependant upon its own peculiar facts.

[209]

161 The question, then, for present purposes is whether (assuming the existence of a relationship of principal and agent) the alleged conduct of the second to eighth defendants was done in the intended or ostensible pursuit of the first defendant's interests or in the intended performance of the second to eighth defendants' duties as servants or agents of the first defendant. It is clear that the fact the conduct alleged was unlawful is not enough, of itself, to take it outside the range of conduct for which the first defendant might be liable.

[210]

162 In light of the principles to which I have referred, I consider that, given the nature and circumstances of the alleged conduct of the second to eighth defendants, the conduct does not plainly fall outside the scope of conduct for which the first defendant would be liable. Much may ultimately depend upon findings of fact at trial as to the precise nature of the particular acts alleged and the circumstances in which they occurred. But, in my view, at this stage it is arguable that the first defendant would be liable.

[211]

163 It was also contended by the first defendant that the various acts of the second to eighth defendants for which it is said to be liable fell within what was broadly described as the 'witness immunity principle' and therefore no action lay in respect of those acts.

[212]

164 It was not in issue that no action lies in respect of evidence given by a witness in a proceeding in court. The fundamental principle was stated by Starke J in Cabassi v Vila [1940] HCA 41; (1940) 64 CLR 130, at 140 - 141, as follows:

[213]

"No action lies in respect of evidence given by witnesses in the course of judicial proceedings, however false and malicious it may be, any more than it lies against judges, advocates or parties in respect of words used by them in the course of such proceedings or against juries in respect of their verdicts.

...

The law protects witnesses and others, not for their benefit, but for a higher interest, namely the advancement of public justice. ... The remedy against a witness who has given or procured false evidence is by means of the criminal law or by the punitive process of contempt of court."

[214]

165 Nor was it in issue that the immunity extends to out of court conduct that is intimately connected with the giving of evidence in court: D'Orta-Ekenaike v Victoria Legal Aid (supra) at 36.

[215]

166 What was in issue, however, was the extent of the immunity in respect of out of court conduct and whether the issue of whether or not the conduct alleged fell within the immunity was a matter which could properly be determined at this stage.

[216]

167 The policy objectives underlying the immunity have been said to be two-fold: first, to protect persons acting bona fide who under a different rule would be liable, not perhaps to verdicts and judgments against them, but to the vexation of defending action; and secondly, to avoid a multiplicity of actions in which the value or truth of their evidence would be tried over again: Darker v Chief Constable of The West Midlands Police (supra), Cabassi v Vila (supra).

[217]

168 The absolute immunity rule is designed to encourage freedom of speech and communication in judicial proceedings by relieving persons who take part in the proceedings from the fear of being sued for something they say: Taylor v Director of the Serious Fraud Office [1998] UKHL 39; [1999] 2 AC 177 per Lord Hoffmann at 208.

[218]

169 In Darker v Chief Constable of The West Midlands Police, Lord Hope of Craighead observed that it is clear that if that objective is to be achieved, it would not be satisfactory to confine the immunity to evidence given by witnesses while they are actually in the witness box. Lord Hope pointed out that the public policy which renders the protection of witnesses necessary for the administration of justice must, as a necessary consequence, extend to the preliminary examination of witnesses to find out what they can prove. The immunity must also extend to statements made out of court which could fairly be said to be part of the process of investigating a crime or possible crime with a view to prosecution. Lord Hope said that a similar extension of the immunity to statements given by police officers who later gave evidence or were potential witnesses at the trial can be justified on public policy grounds.

[219]

"But there is a crucial difference between statements made by police officers prior to giving evidence and things said or done in the ordinary course of preparing reports for use in evidence, where the functions that they are performing can be said to be those of witnesses or potential witnesses as they are related directly to what requires to be done to enable them to give evidence, and their conduct at earlier stages in the case, when they are performing their functions as enforcers of the law or as investigators. The actions which the police take as law enforcers or as investigators may, of course, become the subject of evidence. It may then be necessary for the police officers concerned to assume the functions of witnesses at the trial to describe what they did or what they heard or what they saw. But there is no good reason on grounds of public policy to extend the immunity which attaches to things said or done by them when they are describing these matters to things done by them which cannot fairly be said to form part of their participation in the judicial process as witnesses. The purpose of the immunity is to protect witnesses against claims made against them for something said or done in the course of giving or preparing to give evidence. It is not to be used to shield the police from action for things done while they are acting as law enforcers or investigators. The rule of law requires that the police must act within the law when they are enforcing the law or are investigating allegations of criminal conduct. It also requires that those who complain that the police have acted outside the law in the performance of those functions, as in cases alleging unlawful arrest or trespass, should have access to a court for a remedy."

[220]

171 Lord Hope rejected the proposition that the protection of the immunity must extend to acts to procure false evidence, such as the planting of a brick or drug or the fabrication of a record of interview. His Lordship said he would draw a distinction between the act itself and the evidence that may be given about the act or its consequences:

[221]

"This distinction rests upon the fact that acts which are calculated to create or procure false evidence or to destroy evidence have an independent existence from, and are extraneous to, the evidence that may be given as to the consequences of those acts. It is unlikely that those who have fabricated or destroyed evidence would wish to enter the witness box for the purpose of admitting to their acts of fabrication or destruction. Their acts were done with a view to the giving of evidence not about the acts themselves but about their consequences. The position is different where the allegation relates to the content of the evidence or the content of statements made with a view to giving evidence, and not to the doing of an act such as the creation or the fabrication of evidence."

[222]

172 Lord Clyde, having considered the extent of the immunity, said (at 208):

[223]

"... But that is not to say that everything said or done by anyone in the investigation or preparation for a judicial process is covered by the immunity. In drawing the line in any particular case it may be necessary to study precisely what was being done and how closely it was linked with the proceedings in court. No immunity should attach to things said or done which would not form part of the evidence to be given in the judicial process. The reason for admitting to the benefit of the immunity things said or done without the walls of the court is to prevent any collateral attack on the witness and circumvent the immunity he or she may enjoy within the court.

...

The protection is granted to a witness in the interest of establishing the truth and to secure that justice may be done. But the witness is not immune from a charge of perjury and that possibility remains as a deterrent against an abuse of his position. Immunity from that would not serve the interests of justice in the case. So also before matters have reached the stage of trial the immunity should not be available to give protection for matter which is designed to defeat the ends of justice rather than to serve them."

[224]

"What is alleged here is not the telling of lies about facts which had occurred but a deliberate fabrication of facts which had not occurred. What is under attack is not the investigation of possible realities but the preparation of a fiction. In so far as the immunity granted to a witness relates to the substance of the evidence which he or she gives or is to give, the matters of which the appellants complain will almost certainly not be the intended substance of the evidence of those who were engaged in the conspiracy. It cannot be that everything which is said or done in the preparation for judicial proceedings is necessarily immune. Where evidence is fabricated or statements concocted, protection from attack should not be gained by a subsequent presentation of false testimony in court."

[225]

174 In his speech, Lord Hutton noted that while it was clear that immunity applies to a statement which is prepared before the trial setting out what the witness intends to say in court, more difficult questions arise as to whether every act which could be regarded as the preparation of evidence comes within the ambit of the immunity.

[226]

175 Lord Hutton observed (at 216) that the predominant requirement of public policy is that those who suffer a wrong should have a right to a remedy, and the case for granting an immunity which restricts that right must be clearly made out. His Lordship continued (at 217):

[227]

"The underlying rationale for the immunity given to a witness is to ensure that persons who may be witnesses in other cases in the future will not be deterred from giving evidence by fear of being sued for what they say in court. This immunity has been extended, as I have described, to proofs of evidence and to prevent witnesses being sued for conspiracy to give false evidence. But the immunity in essence relates to the giving of evidence [emphasis in original]. There is, in my opinion, a distinction in principle between what a witness says in court (or what in a proof of evidence a prospective witness states he will say in court) and the fabrication of evidence, such as the forging of a suspect's signature to a confession or a police officer writing down in his notebook words which a suspect did not say or a police officer planting a brick or drugs on a suspect. In practice the distinction may appear to be a fine one, as, for example, between the police officer who does not claim to have made a note, but falsely says in the witness box that the suspect made a verbal confession to him (for which statement the police officer has immunity), and a police officer who, to support the evidence he will give in court, fabricates a note containing an admission which the suspect never made. But I consider that the distinction is a real one and that the first example comes within the proper ambit of the immunity and the other does not."

[228]

176 His Lordship, having referred to an earlier decision, continued (at 219):

[229]

"But I consider that the position is different where, as alleged by the plaintiffs in this case, steps are taken prior to the making of a statement of evidence, not for the purpose of making a statement of evidence which the maker intends to be an accurate and truthful one, but for the wrongful purpose of fabricating false evidence which would be referred to in an untruthful statement of evidence. In my opinion immunity should not be extended to cover the wrongful fabrication of evidence or of a note which will purport to be used to refresh the memory of the witness in the witness box and which will give the impression to the jury that there is support for the witness's false statement that the suspect made an admission. This view is not in conflict with the principle that immunity (where it exists) is given to a malicious and dishonest witness as well as to an honest witness, and I think that the honest (though negligent) examination of articles to enable a statement of evidence to be made comes within the concept of the preparation of a statement of evidence, whereas the deliberate fabrication of evidence to be referred to in a statement of evidence does not come within that concept."

[230]

177 It is necessary for the first defendant to establish that the immunity applies to the acts relied upon by the plaintiffs to establish their cause of action. The current application can succeed only if it is clear on the face of the pleading that the immunity applies to the conduct of the second to eighth defendants upon which the plaintiffs rely.

[231]

178 There are three broad categories of claim in respect of which the first defendant says the immunity clearly applies to the second to eighth defendants: the allegations that they gave false and perjurious evidence, the allegations that they swore false and perjurious affidavits, and the allegations that they made false and perjurious statements.

[232]

179 I did not understand the first category to be seriously contested by counsel for the plaintiffs. In any event, in my view, the plaintiffs' claim, so far as it is based upon an allegation that the second to eighth defendants gave false and perjurious evidence, must fail. The law is clear and has never been doubted in Australia. An absolute immunity applies to evidence given in court, however untruthful or malicious it is alleged the witness was. It was, I think, also conceded (rightly in my view) by counsel for the plaintiffs that a cause of action based on the allegedly false and perjurious affidavits was not sustainable for the same reason. That seems to me plainly to be the case, both in relation to affidavits in connection with the plaintiffs' appeals and the civil proceedings.

[233]

180 Beyond that, however, the extent to which a statement prepared for the purpose of court proceedings may be the subject of the immunity is not so clear. The limits of the immunity have never been defined with exactness.

[234]

181 I accept the plaintiffs' submissions that it is not clear on the current state of the authorities that the immunity would extend to statements made by the second to eighth defendants for the purposes of the Barthelmeh Inquiry. It is one thing for the immunity to protect statements of evidence which is to be given in court proceedings. It is not necessarily the same thing that the statement is given for the purposes of an internal police enquiry into allegations of misconduct. I do not consider that the statements made for the purposes of the Barthelmeh Inquiry are plainly the subject of an absolute immunity.

[235]

182 It also seems to me that at this stage it cannot be said that the notes of interview and the other statements made by the second to eighth defendants, including the statements made to the police service which were later used in the 1998 appeal and the statements in the hand up brief, are necessarily the subject of immunity. Much would depend upon the particular circumstances in which, and the precise purposes for which, they were made. That is a matter which could only properly be determined after hearing the relevant evidence. It is not a matter which, in my view, can be properly determined on an application of this nature. I do not therefore consider that this ground of the application is made out in respect of the notes of interview and other statements.

[236]

183 I turn then to the first defendant's contention that it could not be liable for acts of the second to eighth defendants after they ceased to be police officers.

[237]

184 I should say at the outset that I accept the plaintiffs' submission that it is arguable that an employer of a person holding public office may be vicariously liable for misfeasance in public office by that employee: Racz v Home Office [1994] 2 AC 45; Three Rivers District Council v Governor and Company of the Bank of England [2000] UKHL 33; [2000] 2 WLR 1220 at 1231. To the extent the plaintiffs have an arguable claim against the second to eighth defendants for misfeasance in public office, I consider that, on the case as pleaded, they have an arguable claim against the first defendant, assuming, of course, for present purposes that the first defendant is vicariously liable for their conduct.

[238]

185 Putting aside limitation issues, to which I will come shortly, the first question is whether, in relation to conduct which occurred after the relevant defendant ceased to be a police officer, a claim for misfeasance in public office is arguably maintainable against that defendant.

[239]

186 The plaintiffs' central contention, as I understood it, was that, given that the scope and elements of the tort of misfeasance in public office are not well defined, it is arguable that acts performed after a person ceases to be a police officer, but which are closely related and incidental to, or in furtherance of, acts performed while that person was a police officer, may be regarded as a continuation of the original misfeasance in public office. Such conduct is a continued abuse of the power that was an incident of the public office that was once held.

[240]

187 In this case, it was argued, the post-employment acts were in each case in furtherance of, or to conceal, acts carried out while the second to eighth defendants were police officers and were a direct result or consequence of their appointment as police officers. Thus, for example, when the second to eighth defendants gave evidence in respect of the appeals after they ceased to hold office they did not do so simply in their capacity as private citizens but rather in their capacity as former police officers.

[241]

188 It is the case that the precise limits of the tort of misfeasance in public office are still undefined: Northern Territory v Mengel (1995) 185 CLR 307 at 345; Sanders v Snell (1998) 196 CLR 329 at 346 - 347.

[242]

189 The elements of the tort have been described in various ways. In Northern Territory v Mengel, Brennan J said (at 355) that "[m]isfeasance in public office consists of a purported exercise of some power or authority by a public officer otherwise than in an honest attempt to perform the functions of his or her office whereby loss is caused to a plaintiff." In the same case, Deane J (at 370) enumerated the elements as follows:

[243]

"Its elements 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."

[244]

190 In Calveley v Chief Constable of the Merseyside Police [1989] 1 All ER 1025, Lord Bridge (with whom the other members of the House agreed) said (at 1031) that, without attempting to define the precise limits of the tort of misfeasance in public office, it must at least involve an act done in the exercise or purported exercise by the public officer of some power or authority with which he is clothed by virtue of the office he holds and which is done in bad faith or (possibly) without reasonable cause.

[245]

191 In Three Rivers District Council v Governor and Company of the Bank of England (supra), Lord Steyn (at 1230 - 1236) identified the elements of the tort as:

[246]

(2) the impugned conduct must be the exercise or the purported exercise of power as a public officer;

[247]

(3) there must be malice in the exercise of the power; it must be exercised for an ulterior purpose with the intention of causing injury to the plaintiff;

[248]

(4) the plaintiff must have a sufficient interest to found a legal standing to sue;

[249]

192 In Three Rivers, Lord Millett said (at 235) that:

[250]

"The tort is an intentional tort which can be committed only by a public official. From this two things follow. First, the tort cannot be committed negligently or inadvertently. Secondly, the core concept is abuse of power."

[251]

193 The Court of Appeal of Victoria in Cannon v Tahche [2002] VSCA 84; (2002) 5 VR 317 (at 330 - 331) described the elements of the tort as follows:

[252]

(a) the misuse or abuse by the holder of a public office of a relevant power which is an incident of the office;

[253]

(b) that such wrongful conduct was actuated by malice, in the sense that the power was used, not for the public benefit, but for an ulterior purpose with the intent that harm be caused to the plaintiff, or in reckless disregard of such a likely consequence, or that there was a purported exercise of the power with knowledge that it did not exist, or in reckless disregard of its existence.

[254]

194 The Court of Appeal in Cannon v Tahche observed (at 328) that the tort is essentially concerned with the abuse by the holder of a public office of a public power or one which must be exercised for the public good and which is attached to the office.

[255]

195 Thus, while different views have been expressed as to some elements of the tort, it is clear that the essence of it lies in the misuse by the holder of a public office of a power with which they are clothed by virtue of their public office. The holding of the office and the exercise of a power which is an incident of that office are essential elements of the tort.

[256]

196 What constitutes a public office for the purposes of the tort has not been settled: see Neilson v City of Swan [2006] WASCA 94 per Buss JA at [34] - [37]. But, as the Court of Appeal of Victoria noted (at 337) in Cannon v Tahche, since the tort is essentially concerned with the misuse of a relevant power which is an incident of public office, it follows as a matter of practicality that an office cannot be characterised as a public office for the purposes of the tort if no relevant power is attached to it.

[257]

197 In my view, it equally follows that a person cannot be liable for misfeasance in public office if they no longer hold the public office to which the relevant power is attached, even where the acts in question are in some other sense connected with their activities in the public office they previously held. That is, there can be no abuse of a public power by a person who no longer holds the office to which the power is an incident. Nor can the former employer of that person be vicariously liable for the acts of that person after they have ceased to hold office and are no longer subject to the supervision and control of the employer.

[258]

198 In this case it is not alleged that after they ceased to be police officers any of the second to eighth defendants held any public office and, in particular, it is not alleged that after they ceased to be police officers they held any public office at the time of the conduct in question. I consider, therefore, it is clear that the claim that the second to eighth defendants are liable for misfeasance in public office in respect of their conduct after they ceased to be police officers is clearly untenable. I do not consider that their subsequent conduct can in any relevant sense be, in effect, some perpetuation or continuation of misfeasance which occurred while they were in office. In my view, so far as the plaintiffs' claims are based upon the alleged conduct of the second to eighth defendants after they ceased to be police officers, they disclose no arguable cause of action.

[259]

199 Finally, I turn to the first defendant's contention that the plaintiffs' claim against the first defendant is statute-barred by virtue of s 6 of the Crown Suits Act 1947 (WA), which continues to apply to causes of action that accrued before 15 November 2005: s 3 and s 8(2), Limitation Legislation Amendment and Repeal Act 2005 (WA).

[260]

200 Section 5 of the Crown Suits Act operates to create substantive rights of action against the State but those rights are conferred "subject to this Act". Section 6(1)(a) provides that no right of action lies against the Crown unless the party proposing to take action gives to the State Solicitor "as soon as practicable ... after the cause of action accrues ... notice in relation to the proposed action ... and the action is commenced before the expiration of one year from the date upon which the cause of action accrued."

[261]

201 A plaintiff who does not comply with the notice provisions may, with the consent of the Attorney General under s 6(2) of the Crown Suits Act or the leave of the Court under s 6(3), bring an action against the Crown before the expiration of six years from the date upon which the cause of action accrued. But that consent or leave must be obtained before the proceedings are commenced and cannot be granted retrospectively: Matheson v Commissioner of Main Roads [2001] WASCA 402; (2001) 25 WAR 269, Bingham v England (1996) 17 WAR 226, Pilbara Iron Ltd v Bonotto (1994) 11 WAR 348.

[262]

202 In order to have an action against the first defendant, it was therefore necessary for the plaintiffs to give notice, and to commence the action, before the expiration of one year from the date upon which the cause of action accrued, or to obtain the consent of the Attorney General or the leave of the Court to bring the action and to commence the action before the expiration of six years from the date upon which the cause of action accrued.

[263]

203 Inevitably, reference was made by both sides to Wardley Australia Ltd v The State of Western Australia [1992] HCA 55; (1992) 175 CLR 514. The first defendant argued that while caution must be exercised when considering a limitation point at an interlocutory level, this was one of the "clearest of cases" where a confident answer could be given that the limitation period had expired.

[264]

204 The plaintiffs, on the other hand, argued that this was not such a case and whether or not a relevant limitation period applied must be left to trial. Counsel argued that there was evidence that adequate notice of the claim had been given and, further, that whether or not the action had been commenced in time raised complex legal and factual issues as to first, the date upon which the causes of action accrued and, secondly, the effect of what the plaintiffs contended was concealed fraud and ongoing fraudulent conduct on the part of the second to eighth defendants.

[265]

205 It is clearly established that the doctrine of fraudulent concealment as such has no application to a limitation period imposed by statute in respect of a common law claim. In Metacel Pty Ltd v Ralph Symonds Ltd (1969) 90 WN (Pt 1) 449, Sugerman JA said (at [13]):

[266]

"Concealed fraud remains a special doctrine of courts of equity applicable where relief is sought in those courts and is not applicable in bar of the Statute of Limitations in a pure common law action."

[267]

206 That statement was referred to with approval by the High Court in Commonwealth of Australia v Cornwell [2007] HCA 16 at [9].

[268]

207 That is not to say, however, that it is clear that the dishonest concealment of relevant conduct can have no possible effect so far as a statutory limitation period is concerned.

[269]

208 In State of New South Wales v Mulcahy (supra), the plaintiff was, on 19 February 1991, arrested and charged with armed robbery and, later, with possession of a prohibited weapon. He alleged that after his arrest he was assaulted by one police officer and that two other police officers were involved in the assault. In about September 1994, he was acquitted of the charges against him. In about July 2002, the plaintiff was notified by the Police Integrity Commission that one of the police officers had admitted, among other things, that evidence given at the trial that admissions had been made by the plaintiff was fabricated, and that other police officers had also admitted some misconduct. Following a public hearing, on or about 18 June 2003 the Commission informed the plaintiff that it approved the release of the information which it had earlier conveyed to him. The plaintiff then brought proceedings against the Crown for the acts of the police officers.

[270]

209 Bryson JA (with whom Hodgson JA and Tobias JA agreed) concluded that the plaintiff's claims were outside the relevant statutory limitation periods. The Court rejected an argument that the causes of action had been "fraudulently concealed" within the meaning of s 55 of the Limitation Act 1969 (NSW), concluding that that provision - which extended the limitation period in a case of fraudulent concealment - had no application. Bryson JA pointed out (at [10]) that the facts, including the falsity of the police evidence, must always have been known to the plaintiff so it could not be said that the cause of action was concealed from him.

[271]

210 Bryson JA went on, however, at [13] - [14]:

[272]

"In my opinion the conduct of police officers in giving a false account of what they and Mr Mulcahy did in relation to what were alleged to be confessional statements, maintaining that false account in proceedings in which Mr Mulcahy was committed for trial and at his trial, and in not revealing its falsity thereafter until they encountered the Police Integrity Commission constitutes a reasonably arguable basis for an estoppel by conduct of the kind described by Deane J in The Commonwealth v Verwayen (1990) 170 CLR 394 at 443 to 446. The views there expressed by Deane J have not, in my understanding, been authoritatively adopted. Indeed the question whether any legal rule is authoritatively established by the judgments in the High Court in Verwayen, and what that rule may be, is an extremely complex and difficult subject; but the careful formulation there given by Deane J, with references to authority, makes it impossible to say that it is not reasonably arguable that there is a general doctrine of estoppel by conduct, and that it has the central principle stated by Deane J at p 444 in these terms:

[273]

'2. The central principle of the doctrine is that the law will not permit an unconscionable - or, more accurately, unconscientious - departure by one party from the subject matter of an assumption which has been adopted by the other party as the basis of some relationship, course of conduct, act or omission which would operate to that other party's detriment if the assumption be not adhered to for the purposes of the litigation.'

[274]

Mr Mulcahy's prospects of overcoming the time bars in ss 14 and 18(A) and succeeding in his claims depend on his prospects of successfully relying on principles associated with Verwayen. To rely on this doctrine it would be necessary for Mr Mulcahy to show that the course of conduct and the acts of the police officers in relation to giving and maintaining their false account created an assumption that that false account, supported by the evidence of several police, would be relied on in defence to any claim which Mr Mulcahy would have brought, so that it would in practical terms have been hopeless for him to bring such a claim: Mr Mulcahy would have to show that it would be an unconscionable departure by the police officers, and by the State which is responsible for their tortious conduct, to set up the Limitation Act against him, and that his not having sued within the time available under the Limitation Act was conduct produced by the assumption."

[275]

211 Having referred to some of the difficulties that may be associated with such a plea, his Honour continued (at [17]):

[276]

"The proposed replication is novel and difficult. I am not called upon to endorse it or express a view about its availability; I go no further than to address whether it is reasonably arguable. In doing so I assume that Mr Mulcahy will be in a position to give evidence himself of his own part in the complicated chain of events the existence of which it would be necessary to show to fulfil Deane J's account of the circumstances in which an estoppel by conduct is available."

[277]

212 In the present case, it was submitted that it would arguably be open to the plaintiffs to show that until 5 June 2002, when the Lewandowski affidavit was sworn, the plaintiffs had acted on the assumption that the second to eighth defendants' false accounts would be relied upon in defence of any claim the plaintiffs might have brought, so that in practical terms such action would have been hopeless until the falsity of the account became known; and that it would now be unconscionable for the second to eighth defendants and the first defendant to rely upon the expiration of the limitation period against the plaintiffs, as it was the conduct of the second to eighth defendants (for whose conduct the first defendant was liable) that had led to the plaintiffs not suing within time.

[278]

213 I must say that I have difficulty in seeing how, based upon what Deane J said in Commonwealth v Verwayen (1990) 170 CLR 394, a relevant estoppel is capable of arising on the pleaded facts or, with respect, how it was capable of arising on the facts of State of New South Wales v Mulcahy. In particular, it does not seem to me clear how it would operate to the plaintiffs' detriment if the second to eighth defendants were to depart from the alleged conduct which had given rise to the plaintiffs' assumption that any claim against them would be hopeless. It is the maintenance of the conduct until after the expiration of the limitation period, rather than the subsequent departure from it, that has had the detrimental effect. But as I read the reasons for decision, it would appear that the estoppel referred to in State of New South Wales v Mulcahy was based on a perhaps somewhat broader proposition, in effect, that having by misconduct on their part caused the plaintiff to assume that in practical terms any action against them would be hopeless, and the plaintiff having acted on that assumption by not commencing action within the limitation period, the defendants were estopped from relying on the expiration of the limitation period when subsequently their misconduct was revealed and the assumption was shown no longer to be the case.

[279]

214 Of course, in respect of the first defendant the question of an estoppel will be relevant only if, contrary to my earlier conclusion, the first defendant is liable for the alleged conduct of the second to eighth defendants. But in that event, I consider, not without some hesitation, that it would be inappropriate to deprive the plaintiffs of the opportunity to seek to rely on an estoppel to meet any limitation point taken by the first defendant. I accept that the metes and bounds of the law relating to estoppel are far from clearly defined, and an intermediate appellate court has found that a relevant estoppel arguably exists on facts similar to the facts of this case. Whilst there appear to be significant factual difficulties facing the plaintiffs in establishing reliance upon any assumption of the nature referred to, in my view those matters can only properly be determined at trial when the relevant facts can be fully explored.

[280]

215 In the event that such an estoppel exists, it is arguable that, for relevant purposes, the 12-month period under s 6(1)(a) of the Crown Suits Act should be taken as having expired 12 months from 5 June 2002. The writ of summons was issued on 4 June 2003 and would therefore be within time.

[281]

216 I accept, then, for present purposes that the plaintiffs have an arguable answer to the first defendant's contention that the action was not commenced in time. The plaintiffs' answer, of course, would properly arise by way of reply, if the first defendant pleaded the limitation point in its defence.

[282]

217 I should say, however, that much may depend upon precisely how the estoppel is sought to be framed, and my finding would not preclude further consideration of the matter when the estoppel had been pleaded, if the first defendant then contended that, as pleaded, it was plainly untenable.

[283]

218 That leaves the question of whether notice was given under s 6 of the Crown Suits Act before the action was commenced. In relation to that, it was submitted on behalf of the plaintiffs that the position was not so clear that it was capable of determination on an interlocutory application. There was evidence that at various times between September 1983 and April 1998 the plaintiffs, or persons acting on their behalf, had written to various representatives and departments of the first defendant ventilating the claims made in these proceedings and requesting the State to take action to remedy the wrong allegedly suffered by the plaintiffs. It was argued that by that means the first defendant had received notice of the matters the subject of the present claims and the plaintiffs' intention to pursue them.

[284]

219 The plaintiffs also relied upon a telephone conversation which the plaintiffs say took place between their solicitor and the State Solicitor on 4 June 2003. It is said that in the course of that conversation their solicitor advised the State Solicitor of the substance of the intended claim against the Crown, noting that the time period under s 6 expired on that day. They say that the State Solicitor said that the Crown would probably not suffer any prejudice if the plaintiffs delayed in issuing proceedings and subsequently applied for an extension of time to comply with the provisions of the Crown Suits Act. It was argued that, in the circumstances, it was not now open to the first defendant to complain that notice had not been given under s 6 of the Crown Suits Act.

[285]

220 In my view, this is not one of those clear cases where it is appropriate to determine on an interlocutory application the issue of whether adequate notice was given. Whether or not adequate notice was given, or whether the plaintiffs can establish that there are grounds upon which the first defendant is precluded from relying upon the absence of notice, are matters that can only properly be determined at trial when the relevant evidence has been heard and findings of fact made as to the nature and effect of the notices given before the action was commenced and the effect of the telephone conversation.

[286]

221 A number of other complaints were made by the first defendant relating to the adequacy of the particularisation of the statement of claim. It is unnecessary, for present purposes, to go through those complaints in detail. In my view, in each case they were matters that would be capable of being remedied by a request for particulars and, at this stage, would not warrant the drastic step of striking out the statement of claim.

[287]

Do the plaintiffs have an arguable claim against the second and fourth to eighth defendants?

[288]

222 It is necessary, then, to turn to the application by the police defendants.

[289]

223 It follows from what I have said in relation to the plaintiffs' claim against the first defendant that I do not consider that the claims for misfeasance in public office are arguably maintainable insofar as they rely upon acts or omissions alleged to have occurred after the relevant defendant allegedly responsible for them ceased to be a police officer.

[290]

224 Similarly, I do not consider that any action based upon an allegation that a defendant gave false and perjurious evidence or swore a false and perjurious affidavit, is arguably maintainable, but beyond that the question of whether the police defendants have a good defence to any of the claims based on what has been called 'witness immunity' is, in my opinion, something that can only properly be determined at trial.

[291]

225 I also consider, for the reasons I have given in relation to the plaintiffs' claim against the first defendant, that the plaintiffs have an arguable answer by way of estoppel to any limitation defence pleaded by the police defendants.

[292]

226 A number of complaints were also made by Senior Counsel for the police defendants about the form and structure of the statement of claim, arguing that the statement of claim was embarrassing. Counsel for the plaintiffs pointed out that most of those complaints had not been the subject of conferral under O 59 r 9 and said that, had they been, they could have been addressed, so far as necessary. The plaintiffs' counsel accepted that amendments would be necessary to deal with some of the matters raised by the defendants but the deficiencies were not properly a basis upon which to strike out the statement of claim on this application.

[293]

227 The complaints of the police defendants about matters going to the form and structure of the pleading are, I think, matters for another time. The plaintiffs' counsel has conceded the need for some amendments and in the light of my findings it is inevitable that the statement of claim will have to be significantly, if not substantially, recast. Once that has been done any remaining complaints should be the subject of conferral and only then any further application made to the Court, if it is necessary to do so having regard to the observations of the Chief Justice in Barclay Mowlem Construction Ltd v Dampier Port Authority [2006] WASC 281 at [7] - [8].

[294]

228 I would strike out the plaintiffs' claims against the first defendant as disclosing no reasonable cause of action.

[295]

229 I would strike out the plaintiffs' claim against the second and fourth to eighth defendants for misfeasance in public office insofar as it relies upon acts or omissions of any of the police defendants after they respectively ceased to be police officers. In that connection, I would also strike out the allegation in par 5 of the statement of claim that, at all material times, the second and fourth to eighth defendants acted or purported to act as officers, servants or agents of the first defendant or as police officers. A number of the alleged acts of those defendants were committed after they ceased to be police officers and it is not alleged in the pleading that after the date upon which they ceased to be police officers they again held that or any other public office, or were otherwise officers, servants or agents of the first defendant. If it is sought to be alleged that after that time they were, on some other basis, acting or purporting to act as officers, servants or agents of the first defendant, neither that allegation nor the facts relied upon for it emerge from the pleading as it stands.

[296]

230 I would also strike out the claim against the second and fourth to eighth defendants insofar as it relies upon allegations that any of those defendants gave false and perjurious evidence or swore a false and perjurious affidavit, whether in connection with the plaintiffs' appeals or in connection with civil proceedings.

[297]

231 Given the relatively complex and intricate nature of the pleading, it seems to me that there might be some difficulty associated with identifying the specific paragraphs of the statement of claim which should be struck out to give effect to these reasons. It may be that the appropriate course is simply to strike out the existing statement of claim, and to refuse leave to amend in accordance with the minute of further re-amended substituted statement of claim, with leave to the plaintiffs to replead having regard to these reasons. I will, however, hear the parties on the appropriate form of orders.

[298]

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

[299]

CITATION : MICKELBERG & ORS -v- THE STATE OF WESTERN AUSTRALIA & ORS [2007] WASC 140 (S)

[300]

RAYMOND JOHN MICKELBERG & PETER MICKELBERG AS EXECUTORS OF THE ESTATE OF BRIAN MICKELBERG (DEC)

[301]

ELIZABETH MARY HANCOCK AS EXECUTRIX OF THE ESTATE OF DONALD LESLIE HANCOCK (DEC)

[302]

MARK LEWANDOWSKI AS REPRESENTATIVE OF THE ESTATE OF ANTHONY LEWANDOWSKI (DEC)

[303]

Costs - Whether successful party who fails on particular issue should be deprived of costs of that issue - Relevant principles - Legal Practice Act 2003 (WA), s 215 - Whether matter of unusual difficulty, complexity or importance - Whether evidence needed - Whether Court can determine from its own knowledge of the matter - Turns on own facts

[304]

Legal Practice Act 2003 (WA), s 215

[305]

Plaintiffs to pay defendants' costs of strike out application to be taxed without regard to limit in relevant legal costs determination

[306]

First Defendant : Mr G T W Tannin SC & Ms M J Paterson

[307]

First Defendant : State Solicitor for Western Australia

[308]

1 NEWNES J: On 29 June 2007, I delivered judgment on an application by the first defendant and the second and fourth to eighth defendants to strike out the plaintiffs' statement of claim: Mickelberg v The State of Western Australia [2007] WASC 140. I now have before me applications by those defendants (the "defendants") for the costs of the applications.

[309]

2 The defendants seek orders that the plaintiffs pay their costs of the application to be taxed without regard to the limit on costs fixed in the relevant determination, pursuant to s 215(2)(c) of the Legal Practice Act 2003 (WA) (the "Act"), and with an allowance for Senior Counsel, pursuant to s 215(2)(d) of the Act.

[310]

3 The application was opposed by the plaintiffs who, whilst conceding that the first defendant was entitled to its costs of the action, the claim against it having been struck out, argued that on the strike out application there should either be no order as to costs or an order that the plaintiffs pay 50 per cent of the defendants' costs with no special orders in relation to those costs.

[311]

4 It was submitted that the first defendant was entitled to its costs of the application as it had been wholly successful in striking out the plaintiffs' claim. It had also been successful on three of the five grounds upon which it had relied, namely the Enever principle, witness immunity and the absence of any liability of the first defendant for acts of police officers who are no longer serving police officers. Senior Counsel acknowledged that the first defendant had not succeeded on its complaint that the form of the pleadings was embarrassing or that the plaintiffs' actions were statute-barred, it being unnecessary for the Court to deal with the former and it being found in relation to the latter that there was an arguable ground of estoppel available to the plaintiffs.

[312]

5 It was submitted, however, that the first defendant's entitlement to costs should not be affected by its failure to succeed on those two grounds. The argument in relation to pleading issues occupied a very small part of the overall argument and was not conclusively in favour of the plaintiffs in any event. While the limitation issues were fully argued, the issues were properly and reasonably raised by the first defendant. The estoppel point was not raised by the plaintiffs in conferral before the hearing of the application. It was apparent from the reasons for decision that the estoppel argument was a difficult and novel one.

[313]

6 Senior Counsel argued that there was therefore nothing which would warrant depriving the first defendant of any portion of its costs. All of the matters relied upon by the first defendant had been reasonably and properly raised. He referred to the decision of Jacobs J in Cretazzo v Lombardi (1975) 13 SASR 4 at 16, for the proposition that the ultimate ends of justice may not be served if a party is dissuaded by the risk of costs from canvassing all material issues.

[314]

7 It was further submitted that it was appropriate, having regard to the unusual difficulty, complexity and importance of the matter, that the costs be taxed without regard to the limit on costs fixed in the relevant determination.

[315]

8 Senior Counsel for the first defendant argued that it was unnecessary to have specific evidence in relation to the unusual difficulty, complexity or importance of the matter as those elements were readily apparent to the Court from its own observations.

[316]

9 The most recent statement of claim ran to 181 pages. Lengthy submissions had been filed on both sides and a very large number of cases were referred to. The hearing itself had taken one and a half days. The application required the consideration of complex, important and novel legal principles, including whether the tort of misfeasance in public office could be committed by a defendant who at the relevant time had ceased to hold the public office (on which there were no authorities on point), as to the extent of the doctrine of witness immunity, and as to a relatively novel plea of estoppel in relation to the limitation arguments.

[317]

10 It was therefore appropriate that the costs determination, which limited the costs to a total sum of $9306, should not apply, and it should also be recognised that it was appropriate for Senior Counsel to be briefed on behalf of the first defendant.

[318]

11 The first defendant also sought a special costs order in relation to a request for further and better particulars it had served on the plaintiffs in respect of the preceding version of the statement of claim. It was submitted that, as a consequence of the manner in which the statement of claim was framed, it was necessary to seek extensive particulars. The request for particulars, dated 19 March 2006, extended to 59 pages. As a result of the request, the plaintiffs made extensive amendments to the statement of claim, resulting in the filing of an amended substituted statement of claim of 18 September 2006 which incorporated answers to the majority of the requests. The allowance in the relevant determination for a request for further and better particulars was a maximum amount of only $693.00. That was manifestly inadequate in the present circumstances.

[319]

The submissions of the second and fourth to eighth defendants

[320]

12 It was submitted on behalf of the second and fourth to eighth defendants (the "police defendants") that their application to strike out had been substantially successful. The police defendants had succeeded on the issue of whether they were liable for acts of misfeasance in public office alleged to have been committed after they ceased to be members of the police service, and on the witness immunity argument they had succeeded in respect of the majority of the significant allegations pleaded against them in the statement of claim. The only allegations to which it was held not to apply were the alleged fabrication of notes of interview and the statements to the Barthelmeh Inquiry.

[321]

13 The plaintiffs had succeeded on the limitation issue on an estoppel argument not raised in conferral before the application and which had arisen for the first time in written submissions filed the day before the special appointment. Moreover, the estoppel argument involved not simply an ordinary application of recognised principles but was a relatively novel one. The limitation issue had been properly and reasonably raised by the police defendants.

[322]

14 Counsel argued there had been no conduct on the part of the police defendants which would disentitle them to a costs order, such as a failure to confer under O 59 r 9 or some relevant misconduct.

[323]

15 It was submitted that the application was one of unusual difficulty, complexity or importance within the meaning of s 215(2) of the Act. The statement of claim was long and involved, and pleaded detailed allegations of facts extending over 20 years from 1982 to 2002. It raised a number of relatively novel legal issues. In addition, the difficulties were exacerbated by the form of the pleading which rolled together various allegations against the police defendants, although different individuals had different alleged levels of involvement in the investigation and prosecution of the plaintiffs and had ceased to be police officers at different times.

[324]

16 Extensive submissions had been filed on each side and a large number of cases referred to. The special appointment was listed for two days and ultimately took one and a half days. Counsel for the police defendants also referred to a statement in the plaintiffs' outline of submissions on the substantive application which referred to the statement of claim raising "complex legal and factual issues".

[325]

17 Counsel argued that it was unnecessary to file evidence in support of the application as the Court was eminently capable of making an assessment of what work was done, why it was done, its necessity in the context of the pleading and the fact that the relevant determination was unlikely to be adequate to compensate the police defendants.

[326]

18 The police defendants did, however, file an affidavit of their solicitor sworn 12 July 2007 in which reference is made to the work that had been carried out on their behalf for the purposes of the application.

[327]

19 It was submitted on behalf of the plaintiffs that it was a relevant consideration on the question of costs that the conduct of the defendants had unnecessarily increased the costs of the application. In addition to its extensive submissions, the first defendant had filed detailed schedules on which little reliance was placed in the course of argument, and had cited 78 authorities, of which 66 were denoted as authorities from which counsel may read. In fact, only a limited number of authorities were referred to in the course of argument and no more than 10 were read from. That had resulted in substantial costs being incurred unnecessarily by the plaintiffs.

[328]

20 The submissions of the police defendants had been late and that had resulted in the plaintiffs having to file separate submissions in respect of the first defendant's application and the police defendants' application respectively, thereby incurring significant additional costs.

[329]

21 It was submitted that whilst the first defendant had succeeded on the Enever principle, that had not occupied a substantial part of the argument, the greater time being taken by the issues of witness immunity and the limitation argument. In relation to witness immunity, in the course of argument on the substantive application the plaintiffs had conceded that certain claims by the plaintiffs were liable to be struck out and, save for that concession, the plaintiffs were wholly successful in resisting the application on this issue.

[330]

22 It was argued in relation to the police defendants that whilst they had been partially successful on the witness immunity issue and had succeeded on the issue of their liability for acts after they ceased to be police officers, they had been wholly unsuccessful on the limitation issue.

[331]

23 It was therefore appropriate in respect of all of the defendants that there be an apportionment of the costs of the application. Substantial time had been spent on issues on which the defendants had not succeeded.

[332]

24 It was submitted that no matters have been raised which would justify a special costs order under s 215(2) of the Act. That provision requires the defendants to establish first, that the matter is unusually difficult, complex or important; and secondly, that the usual amount allowable under the determination is inadequate because of the unusual difficulty, complexity or importance of the matter. No affidavit evidence had been produced in relation to any of those matters, apart from the late affidavit of the police defendants' solicitors, which was itself inadequate.

[333]

25 It was submitted that the papers before the Court were not sufficient to demonstrate that the matter was one of unusual difficulty, complexity or importance so as to warrant a special costs order.

[334]

26 It was further submitted on behalf of the plaintiffs that in assessing the reasonableness of a special costs order, the Court should have regard only to the grounds of the application on which the defendants were ultimately successful. The Court should also have regard to the significant extent to which matters upon which the defendants were unsuccessful increased the time and costs incurred in prosecuting the application. Had the arguments on the application been confined to those on which the defendants were ultimately successful, the special appointment would have been concluded within the one day on which the costs determination was based.

[335]

27 Counsel acknowledged that the factual background to the proceedings and therefore the statement of claim was detailed and complex, but argued that it was not correct to suggest that all aspects of the application involved the determination of complex legal and factual issues. Thus, it was argued the principles relating to witness immunity were well-established, as were the elements of the tort of misfeasance in public office.

[336]

28 The plaintiffs conceded that the first defendant was entitled to its costs of the action, but having regard to the conduct of the strike out application, and the number of issues upon which the plaintiffs were successful, there should either be no order as to costs of the application or the plaintiffs should be required to pay only 50 per cent of the costs of the first defendant and the police defendants respectively.

[337]

29 The general principles to be applied in the exercise of the Court's discretion in respect of costs were summarised by Toohey J in Hughes v Western Australian Cricket Association Inc [1986] FCA 382; (1986) ATPR 40-748 at 48,136, as follows:

[338]

"The discretion must of course be exercised judicially. There are decisions, both of Australian and English courts, that throw light on the way in which the discretion is to be exercised. I shall not refer to those decisions in any detail; I shall simply set out in a summary way what I understand to be their effect.

[339]

Ordinarily, costs follow the event and a successful litigant receives his costs in the absence of special circumstances justifying some other order. Ritter v Godfrey (1920) 2 KB 47.
Where a litigant has succeeded only upon a portion of his claim, the circumstances may make it reasonable that he bear the expense of litigating that portion upon which he has failed. Forster v Farquhar (1893) 1 QB 564.
A successful party who has failed on certain issues may not only be deprived of the costs of those issues but may be ordered as well to pay the other party's costs of them. In this sense, 'issue' does not mean a precise issue in the technical pleading sense but any disputed question of fact or of law. Cretazzo v Lombardi (1975) 13 SASR 4 at p 12.

[340]

There is no difficulty in stating the principles; their application to the facts of a particular case is not always easy. Also it is necessary to keep in mind the caveat by Jacobs J in Cretazzo v Lombardi at p 16. His Honour sounded what he described as 'a note of cautious disapproval' of applications to apportion costs according to the success or failure of one party or the other on the various issues of fact or law which arise in the course of a trial. His Honour commented:

[341]

'But trials occur daily in which the party, who in the end is wholly or substantially successful, nevertheless fails along the way on particular issues of fact or law. The ultimate ends of justice may not be served if a party is dissuaded by the risk of costs from canvassing all issues, however doubtful, which might be material to the decision of the case. There are, of course, many factors affecting the exercise of the discretion as to costs in each case, including in particular, the severability of the issues, and no two cases are alike. I wish merely to lend no encouragement to any suggestion that a party against whom the judgement goes ought nevertheless to anticipate a favourable exercise of the judicial discretion as to costs in respect of issues upon which he may have succeeded, based merely on his success in those particular issues.' "

[342]

30 While the principles described by Toohey J continue to be relevant to the exercise of the discretion, the exigencies of modern-day litigation have led to a re-assessment of the significance of the caveat to which his Honour referred. In particular, increasing concerns about the high cost of litigation and the burdens imposed on the public resources of the courts have focussed attention on the need for greater economy and efficiency in the conduct of litigation, leading to much more emphasis on the proper identification of, and confinement by the parties to, the real issues.

[343]

31 In Commissioner of Australian Federal Police v Razzi (No 2) [1991] FCA 267; (1991) 101 ALR 425, Wilcox J (at 430) said that in light of extensive court delays and the high cost of modern-day litigation, the courts should use all proper means to encourage parties to consider carefully what matters they will put in issue in their litigation. His Honour suggested that if parties come to realise that they will not necessarily recover the whole of their costs if they have unsuccessfully raised a discrete issue, they are likely to give more careful consideration to whether the raising of that issue is a justifiable course to take.

[344]

32 In a similar vein, in R v Secretary of State for Transport; Ex parte Factortame Ltd (1998) EWCA 2999, Woolf LJ (with whom Schiemann and Robert Walker LJJ agreed) said:

[345]

"... the practice of the courts does evolve and in recent times there has been a greater emphasis on recognising that the raising of issues in the course of complex litigation ... can increase the costs of that litigation. It is therefore important that the parties should pay careful attention to the merits, not only of the whole case but to the issues which arise in the course of a case. In complex litigation, where issues are raised on which a party is unsuccessful, the court should, when appropriate, make orders for costs which reflect the fact that, where as a party may generally be successful, in regard to some of those issues that party has been unsuccessful. Furthermore, if the way in which an issue is conducted or argued has the result of increasing the costs of the litigation, and the court finds it was unnecessary for the party to develop the issue in that way, that again can be reflected in a special order for costs."

[346]

33 Most recently, in Leading Edge Events Australia Pty Ltd v Kiri Te Kanawa (No 2) [2007] NSWSC 568, Bergin J observed, by way of obiter, that "litigation has changed somewhat since Cretazzo v Lombardi was decided." Her Honour commented (at [11]) that "[t]he modern litigation practitioner has a far greater burden of deciding which issues or causes of action should be pursued in a Court. The cost consequences not only for parties but also practitioners are a reality that was not present in 1975 when Jacobs J suggested that parties should not be dissuaded from canvassing doubtful issues."

[347]

34 See also Victoria v Master Builders' Association of Victoria, unreported; App Div SCt of Vic; No 7981/93; 15 December 1994, per Ormiston J; Dodds Family Investments Pty Ltd v Lane Industries Pty Ltd [1993] FCA 259; (1993) 26 IPR 261 at 272; Hayle Holdings Pty Ltd v Australian Technology Group Ltd [2000] FCA 1699 [7]; and Evans Deakin Pty Ltd v Sebel Furniture Ltd [2003] FCA 282 at [5].

[348]

35 But that does not mean that in the exercise of its discretion as to costs a court should as a matter of course embark upon a dissection of the case before it to determine which party was successful on each issue, or necessarily deprive a successful party of some portion of its costs because it has lost on a particular distinct or severable issue.

[349]

36 Indeed, in Dr Martens Australia Pty Ltd v Figgins Holdings Pty Ltd (No 2) [2000] FCA 602, Goldberg J said at [54] that:

[350]

"[a] court should be reluctant to embrace the proposition that, as a general rule, it is appropriate to undertake an enquiry as to who was successful in relation to particular issues in a case to determine whether there should be an apportionment of costs against a successful party. A court should not be too ready to disallow costs simply because a party has failed upon an issue, unless it be quite a separate and distinct issue from the issues in respect of which it succeeded or unless there be some element of unreasonableness or inappropriate conduct in relation to that issue: cf Verna Trading Pty Ltd v New India Assurance Pty Ltd [1991] VicRp 12; [1991] 1 VR 129 at 152-154."

[351]

37 And Cole JA warned in MacKinnon v Petersen, unreported; CA SCt of NSW; 19 April 1989, that to embark on such inquiries as a general practice would be likely to add further uncertainty and complexity to the outcome of litigation, derogating from the prospect of settlement and obliging the Court to hear lengthy and frequent arguments in relation to costs, as an additional burden on its resources and the costs of the parties. See also Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72, per McHugh J at [67] - [68].

[352]

38 A cautionary note was also sounded by Anderson J in Westgold Resources NL v St George Bank Ltd & Ors, unreported; SCt of WA; Library No 980717; 9 December 1998, where his Honour said:

[353]

"The court should not get involved in an excessively detailed analysis of the various issues in an attempt to make intricate dollar-perfect costs orders. To adopt that practice would be to add an extra dimension to litigation which, by and large, is already these days complicated and expensive enough."

[354]

39 Justice may also not be served if, by too ready a resort to deciding questions of costs according to success on particular issues, parties are dissuaded by the risks of costs from canvassing all issues which might be material to the decision in the case: Doric Products Pty Ltd v Lockwood Security Products Pty Ltd [2002] FCA 282; NRMA Ltd v Morgan (No 3) [1999] NSWSC 768 at [24].

[355]

40 The circumstances in which it will be appropriate, for the purpose of determining the question of costs, to embark upon an analysis of the outcome of specific issues in a case cannot be exhaustively stated. But I respectfully take the general approach to be that stated by Mahoney JA (with whom Kirby and Priestley JJA agreed) in Waters v PC Henderson (Australia) Pty Ltd, unreported; CA SCt of NSW; No 40678/91; 6 July 1994, where his Honour put the position as follows:

[356]

"Where the proceedings involve multiple issues the application of the rule that costs follow the event may involve hardship where a party succeeds on some issues and yet fails on others. Particularly is this so where, for example, a defendant succeeds on issues that occupied the bulk of the time taken by the proceedings. Nevertheless unless a particular issue or group of issues is clearly dominant or separable it will ordinarily be appropriate to award the costs of the proceedings to the successful party without attempting to differentiate between those particular issues on which it was successful and those in which it failed."

[357]

41 That statement was referred to with apparent approval by the Court of Appeal of New South Wales in James v Surf Road Nominees Pty Ltd (No 2) [2005] NSWCA 296.

[358]

42 The approach to be taken where it is appropriate to consider the outcome of different issues was considered by Hodgson CJ in Permanent Trustee Australia Ltd v FAI General Insurance Co Ltd, unreported; SCt of NSW; 3 June 1998, where, after discussing the competing considerations of encouraging selectivity of issues and not penalising a party for supporting their case in every reasonable way, his Honour said (at 13):

[359]

"Apart from that consideration, in general terms I accept that if an issue is raised reasonably and is not disproportionate to the whole case, then normally the successful party should get his or her costs. However, particularly in relation to severable issues, the lesser the strength of the point raised and the greater the proportion it bears to the whole case, the more likely it is that the successful party may be deprived of costs; and if the Court comes to the view that it was unreasonable to raise the issue, then the successful party may have to pay the costs of that issue."

[360]

43 It seems to me, therefore, that the effect of the authorities is that if a successful party fails on some issue, the circumstances may make it reasonable that that party be deprived of their costs of that issue. It is not necessary that the issue concerned was raised unreasonably by the party. But parties should not be dissuaded by the risk of costs from canvassing all issues which might be material to the decision in the case, and unless a particular issue or group of issues is clearly dominant or separable from the balance of the proceedings, or there has been some unreasonable or inappropriate conduct by the successful party in relation to an issue, it will ordinarily be appropriate to award the costs of the proceedings to the successful party without attempting to differentiate between the issues on which it was successful and those on which it failed.

[361]

44 Where it is appropriate to consider the outcome of particular issues in the case, it will be relevant to consider whether there has been any unreasonable or inappropriate conduct on behalf of the successful litigant in relation to that issue, the relative merits or strengths of that party on the issue, whether the length of the hearing was greatly increased by the issue, and whether the issue otherwise was of sufficient significance in proportion to the whole case to warrant an order depriving that party of the costs of that issue.

[362]

45 Plainly, however, there can be no hard and fast rules and the discretion must be exercised having regard to all of the relevant circumstances of the case.

[363]

46 Where the Court does take the course of disallowing costs by reference to a particular issue or issues, the exercise of discretion that is involved in doing so will often be more a matter of art than science. As Gummow, French and Hill JJ pointed out in Dodds Family Investments Pty Ltd v Lane Industries Pty Ltd (supra), where there is a mixed outcome in proceedings, the question of apportionment is very much a matter of discretion for the trial Judge. Mathematical precision is illusory and the exercise of the discretion will often depend upon matters of impression and evaluation.

[364]

47 I should say that I do not consider that, in respect of the question of the allocation of the costs of legal proceedings, there is any relevant distinction in respect of the applicable principles between the trial of an action and an interlocutory application of the present nature.

[365]

48 It is against that background that I turn to the particular considerations that are relevant in this case.

[366]

What are the appropriate orders as to costs?

[367]

49 I am satisfied that the first defendant is entitled to its costs of the application. The first defendant was successful in having the plaintiffs' claims against it struck out on the basis of the Enever principle. It was successful on the alternative issue of whether it was vicariously liable for the alleged acts of the police defendants after they had ceased to be police officers and it was also partially successful on the alternative issue of witness immunity. The plaintiffs' concessions on the latter were made only in the course of argument on the application. The first defendant was unsuccessful on the agency point, although that was simply an alternative to its argument on the Enever principle, should the latter argument not prevail.

[368]

50 Whilst the first defendant was unsuccessful on the limitation issues, I do not consider that in the circumstances that issue was unreasonably raised by the first defendant. The first defendant's contention was not obviously of doubtful merit and even during the course of argument counsel for the plaintiffs took some time to state with precision the terms of the estoppel for which the plaintiffs contended in answer to the defendants' limitation arguments. The estoppel point was also raised late, not having been raised in conferral before the application was made. Having regard to those circumstances, and the nature of the issue and the extent of the time it occupied, I do not consider that it warrants the first defendant being deprived of a portion of its costs.

[369]

51 The police defendants succeeded on the issue of their liability for misfeasance in public office after they ceased to be police officers and in part on the issue of witness immunity. They failed on the limitation issue. The claim against the police defendants was not struck out in its entirety but remains alive in part.

[370]

52 In my view, the police defendants are entitled to their costs of the application. They were substantially successful. It is correct that the police defendants were successful on the issue of witness immunity only to the extent of the plaintiffs' concessions but, as I have mentioned, those concessions were made by the plaintiffs' counsel only in the course of argument on the application. On the limitation issue the police defendants were unsuccessful but I do not consider that the police defendants acted unreasonably in the approach they took to that issue. The estoppel point was raised late in the day and, as I have said, was a point of some novelty.

[371]

53 When regard is had to all of the circumstances, including the nature of the issues on which the police defendants were unsuccessful and the amount of the time those issues occupied, I do not consider that the failure of the police defendants on those issues justifies depriving them of a portion of their costs.

[372]

54 In relation to the applications for special costs orders under s 215(2) of the Act, I do not accept the plaintiffs' submission that it is essential to file affidavit evidence to make good such an application. Whether such evidence is necessary will depend upon the circumstances of the particular case.

[373]

55 In Pasdonnay Pty Ltd v SDS Corporation Ltd [2005] WASCA 9 (S), Wheeler J (as her Honour then was) (with whom Miller and Jenkins JJ agreed) was considering an application under s 215(2) of the Act. Her Honour said (at [8]):

[374]

"The respondent submits that, as was formerly the case under O 66 r 12, what is required at this stage is a 'preliminary and provisional' judgment as to whether the relevant conditions are satisfied, citing Collins v Westralian Sands Ltd (1993) 9 WAR 56 at 64, 68. I accept that submission. I accept also the submission that the Court, having heard the appeal, is in a position to make that judgment from its own observations. Because some time has elapsed since the hearing of the matter, however, I have reviewed the judgment, the original notice of appeal and amended notice of appeal, and the submissions, in order to refresh my memory of those matters."

[375]

56 In my view, I am in a position to make the necessary judgment from my own knowledge of the matter as it was put before me on the substantive application.

[376]

57 I am satisfied that this was an interlocutory application of "unusual difficulty, complexity or importance". As counsel for the defendants pointed out, the statement of claim under attack extended to some 181 pages and contained detailed allegations of fact going back to 1982. It is, I think, incontrovertible that the pleading was intricate and complex, and raised legal issues of relative novelty, in particular in relation to misfeasance in public office and limitation of actions. Very lengthy written submissions were filed on both sides and a great number of cases were referred to. While the reference to authority by the first defendant may in some instances have gone further than was strictly necessary, it would be wrong to be particularly critical of that given the nature of the issues in question. I think it is also clear that the oral argument, which occupied one and a half days, is likely to have taken considerably longer had counsel not been able to rely to a significant degree on their detailed written submissions.

[377]

58 The defendants' applications were plainly applications of considerable importance. The first defendant was wholly successful in having the claims against it struck out and the police defendants were successful in having significant parts of the claims against them struck out.

[378]

59 In the circumstances, I am satisfied that the amount of costs allowable under the relevant costs determination in respect of the applications is inadequate because of the unusual difficulty, complexity and importance of the matter and I would order that the costs be taxed without regard to the limits on costs fixed in that determination.

[379]

60 I am not, however, satisfied that the grounds have been made out for a special costs order in respect of the action generally, and in particular in respect of the first defendant's request for further and better particulars of the statement of claim, and I would decline to make such an order.

[380]

61 I would therefore propose to make the following orders:

[381]

Subject to par 3 hereof, the plaintiffs pay the first defendant's costs of the action, including reserved costs, to be taxed.
The plaintiffs pay the first defendant's costs (including reserved costs) of the amended application dated 6 February 2007 to strike out the statement of claim, to be taxed without regard to the limits in the relevant Determination of the Legal Costs Committee, pursuant to s 215(2)(c) of the Legal Practice Act.
The plaintiffs pay the first defendant's costs of the action and of the application within 60 days of those costs being taxed or agreed_._
The plaintiffs pay the second, fourth, fifth, sixth and seventh defendants' costs (including reserved costs) of the application to strike out the further re-amended substituted statement of claim, to be taxed without regard to the limits in the relevant Determination of the Legal Costs Committee, pursuant to s 215(2)(c) of the Legal Practice Act.
The plaintiffs pay the eighth defendant's costs (including reserved costs) of the application to strike out the further re-amended substituted statement of claim, to be taxed without regard to the limits in the relevant Determination of the Legal Costs Committee, pursuant to s 215(2)(c) of the Legal Practice Act.
The eighth defendant's costs of the application and the second, fourth, fifth, sixth and seventh defendants' costs of the application are to be taxed as one set of costs.
The plaintiffs pay the second, fourth, fifth, sixth, seventh and eighth defendants' costs within 60 days of those costs being taxed or agreed.

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (381 paragraphs)

MICKELBERG & ORS -v- THE STATE OF WESTERN AUSTRALIA & ORS [2007] WASC 140 (29 June 2007)

The plaintiffs' submissions on the first defendant's application

The submissions of the second and fourth to eighth defendants

The plaintiffs' submissions on the police defendants' application

The submissions of the second and fourth to eighth defendants

What are the appropriate orders as to costs?

Parties

Legislation Cited (4)

Cases Cited (29)