Raso & Anor v Bayliss & Ors [2005] ACTSC 94

Supreme Court of the ACT|2005-09-29|Before: Mahoney CJ, Gray J

1. The first defendant, Mark Ronald Bayliss, by notice of motion dated 5 July 2004 and the second defendant, Kenneth David Llewellyn, the third defendant, Michael Patrick McGann and the fourth defendant, Mark Anthony Kimber by a separate notice of motion dated 9 August 2004, seek that the plaintiffs' claim in this matter be dismissed.

2. The plaintiffs' claim by writ and statement of claim attached, is for wrongful arrest and imprisonment which is alleged to have taken place on 3 July 1986 in the Australian Capital Territory. The writ was filed in this court on 19 February 1988.

3. The four defendants are police officers, the first defendant being a member of the Australian Federal Police (AFP) and the other three defendants members of the New South Wales Police Force.

On or about the 3rd day of July 1986 at 4 Tanumbirni Street Hawker in the Australian Capital Territory the defendants and each of them wrongfully and without reasonable cause arrested the plaintiffs and each of them and took them and each of them to the Canberra City Police Station where the plaintiffs were and each of them was detained overnight and interrogated for several hours and from where they were taken to the ACT Magistrate's Court when they were and each of them was bailed to appear at the Batemans Bay Local Court.

5. Although no defence has been filed by reference to particulars provided by the plaintiffs' solicitor on 31 October 2002, and an outline of facts prepared by the AFP dated 3 July 1986, there is some further elaboration of the circumstances giving rise to the statement of claim. The Brief Facts Sheet records that:

On 27th September, 1985 a dwelling house situated at 102 Elizabeth Drive, Broulee New South Wales jointly owned by the offenders was destroyed by fire. There were various and strong evidence that the dwelling house was the subject of an Arson.

The four joint owners were interviewed in relation to the occurrence along with numerous other persons in which it left a strong inference that the owners were the instigators of the fire.

From the information gathered Police from the Regional Crime Squad South at Sydney, Detectives from Queanbeyan and Canberra C.I.B. attended the home addresses of the offenders where they were spoken to and conveyed to the Canberra City Police Station where they were charged with maliciously setting fire to a building.

6. The criminal charges against the plaintiffs were dismissed in the Batemans Bay Local Court on 17 February 1987. It appears that the magistrate found there was insufficient evidence to commit the plaintiffs for trial. Orders that the defendants pay the costs incurred by the plaintiffs in defending these charges were also made.

7. The `four joint owners' referred to in the facts sheet are the plaintiffs in this matter as well as two other persons, Rosa and Dominic Madaffari, with whom the plaintiffs owned the property that formed the subject of the police investigation. On behalf of those two persons, a writ and attached statement of claim identical in form to this one, albeit prosecuting five different police officers to the defendants in the present case (but similarly one AFP officer and four officers from the NSW police service), was also lodged in this court on the 19 February 1988. Nothing took place on the court file in that matter until the forerunner to the present solicitors acting for the plaintiffs gave notice on 10 February 1999 and then on 24 June 2002, gave a notice of intention to proceed. An amended statement of claim in that matter was filed in this court on 10 February 2005 and is the only other action taken by the plaintiffs in that matter. These proceedings were not referred to by the parties before me. An appearance had been entered for two defendants being two of the NSW police officers in that matter on 18 October 1988. There is no indication from those proceedings that anything further has been done by the plaintiffs to progress the matter with either the AFP or the NSW police service.

8. The fourth defendant entered an appearance to the writ in this matter on 18 October 1988 and the second and third defendants entered their appearances on 12 July 1989. As far as the first defendant was concerned, his appearance was not entered until 27 November 2003. The first defendant had not been served with the proceedings, but on 18 February 2002 the plaintiffs gave a notice of intention to proceed to the solicitors for the second, third and fourth defendants and then, on 31 October 2002, after a request was made, the plaintiffs gave further particulars of the claim. I assume that the first defendant's entry of an appearance was after the solicitors for the other defendants had notified his solicitors.

9. Between the issue of the writ and the notice of intention to proceed - one day short of fourteen years later - no step had been taken by the plaintiffs in the proceedings nor indeed from the affidavits that were filed and read does it appear that any step was taken to progress this matter by requiring that defences be filed and, as it appears in the case of the first defendant, by service of proceedings.

10. The defendants' notices of motion invoke the power vested in this court under O 33A of the Supreme Court Rules 1937 (ACT), which provides:

(a) fails to comply with an order or direction of the court as to the conduct of the proceedings; or

(b) delays prosecution of the proceedings without due cause;

11. The defendants do not allege that there has been a failure to comply with an order or direction of the court under O 33A r 1(a). In both the written submissions of the second, third and fourth defendants and the oral submissions made by all defendants at the hearing of this application, the defendants relied upon the proposition contained in O 33A r 1(b), that the plaintiffs have delayed the prosecution of these proceedings without due cause.

12. Mr Lunney, who appeared as counsel for the plaintiffs, invited me to find that the plaintiffs had not abandoned or shown any intention to abandon the proceedings against the defendants. That, of course, does not meet the test in Supreme Court Rules O 33A r 1(b). He did, however, also submit that it was a serious matter to deprive a plaintiff of a cause of action by striking out the claim for want of prosecution. For that reason he adopted, as an appropriate background to determining this matter, the observations of Lord Diplock in Birkett v James [1978] AC 297, in respect of cases concerning dismissal for want of prosecution. Lord Diplock said (at 318):

The power should be exercised only where the court is satisfied either (1) that the default has been intentional or contumelious, e.g., disobedience to a peremptory order of the court or conduct amounting to an abuse of the process of the court; or (2) (a) that there has been inordinate and inexcusable delay on the part of the plaintiff or his lawyers, and (b) that such delay will give rise to a substantial risk that it is not possible to have a fair trial of the issues in the action or is such as is likely to cause or to have caused serious prejudice to the defendants either as between themselves and the plaintiff or between each other or between them and a third party. (My emphasis)

13. It may be noted that Lord Diplock was considering what he regarded as the inherent power of the court to dismiss for want of prosecution. Supreme Court Rules O 33A r 1 is in quite different terms to the rules before the court in Birkett v James (supra). As Wilcox and Gummow JJ commented in Lenijamar Pty Ltd v AGC Limited [1990] FCA 520; (1990) 27 FCR 388 at 394:

In relation to that matter, counsel referred us to several English authorities: Birkett v James_, already mentioned, the earlier decision of the Court of Appeal in_ Allen v Sir Alfred McAlpine & Sons Ltd [1968] 2 QB 229, and the later decisions in Janov v Morris [1981] 1 WLR 1389; [1981] 3 All ER 780; Greek City Co Ltd v Demetriou [1983] 2 All ER 921; United Bank Ltd v Maniar [1988] 1 Ch 109; Hayes v Bowman [1989] 1 WLR 456; [1989] 2 All ER 293; Department of Transport v Chris Smaller (Transport) Ltd [1989] 1 AC 1197 and Barclays Bank Plc v Miller [1990] 1 WLR 343; [1990] 1 All ER 1040. These cases involved a variety of factual situations, the common element being unjustified delay at some stage of the curial process. They turned upon a miscellany of Rules of Court, depending upon the nature of the case and the Division of the High Court of Judicature in which the case was brought. They afford little assistance to us. This Court has its own rules relating to the summary dismissal of proceedings. It is to them that we must look.

14. It was pointed out that Higgins J (as his Honour then was) adopted Lord Diplock's formulation in this court in Hill v Nuttall [2000] ACTSC 103. In that case it was accepted by the parties that he do so and there appears not to have been any argument on the matter. The defendants referred me to a number of Australian cases which have expressed reservations in giving unequivocal effect to what was said in Birkett v James; Ulowski v Miller [1968] SASR 277; Witten v Lombard Australia [1968] 88 WN (Part 1) (NSW) 405; Stollznow v Calvert [1980] 2 NSWLR 749; Micallef v ICI Australia Operations Pty Limited [2001] NSWCA 274. In McKenna v McKenna [1984] VicRp 58; [1984] VR 665, McGarvie J expressed these reservations at the nature of the `discretion' proposed in Birkett v James (at 674):

Decisions of judges in the exercise of a discretion are often useful to a judge later exercising the discretion. Earlier decisions may show what considerations are, and what are not, relevant to the exercise of a discretion. They may indicate what considerations are usually considered and what weights are usually accorded to particular considerations. They may indicate the approach which is appropriate in the usual case. However, they cannot create either a formula to be followed or conditions precedent to be satisfied before the discretion can be exercised in a particular way. That would involve an impermissible fettering of the discretion. In that way, judicial decision would destroy the flexible discretion which the law had conferred on the judge. (My emphasis)

15. A further point of contention that has been expressed with Lord Diplock's formulation is whether it sufficiently punishes a claimant's tardiness as the applicant is the party put to proof to show that the defence has been prejudiced to such an extent that a fair trial of all the facts is no longer possible, or has at least been seriously compromised. Expressing such reservations at the hearing of the motion, Mr R Crowe SC, who appeared as counsel for the first defendant, submitted that Birkett v James should have no application in the Australian Capital Territory since the introduction of O 33A to the Supreme Court Rules in 1992. He submitted that Birkett v James creates a `threshold' that must be satisfied before the court can dismiss proceedings, and that such a fetter on the discretion conferred by the rule is not contemplated by it. I agree with that proposition.

16. To this it should be added that O 33A r 1(b) does not use the terms used by Lord Diplock in Birkett v James as it could have if it was intended that the dicta be the test. Order 33A r 1(b) in its terms permits a stay or dismissal of proceedings where there has been delay by the plaintiffs in prosecuting their claim for which there is no `due cause'. As a matter of course, that will also require a consideration of the likelihood and effect of any prejudice that may result from the `inexorable effluxion of time' (McKenna, per McGarvie J at 677). The provision would also seem to encapsulate a review of all the circumstances. As Bray CJ remarked on an appeal in respect of proceedings taken for dismissal for want of prosecution in Ulowski v Miller (supra) at 282:

Both explanation for the delay and possible prejudice to a fair trial are highly important but I am not prepared to say that either of them amounts to a sine qua non for the making of a particular order.

17. The fulfilment of the test in Birkett v James is clearly sufficient to dismiss a claim for want of prosecution, but the Australian authorities to which I have referred have adopted much more general considerations to determine whether to entertain such applications. In Ulowski v Miller, Bray CJ (at 280) outlined these features that the court should consider in exercising the discretion:

It clearly appears ... that five paramount matters to be considered are the length of the delay, the explanation for the delay, the hardship to the plaintiff if the action is dismissed and the cause of action left statute-barred, the prejudice to the defendant if the action is allowed to proceed notwithstanding the delay, and the conduct of the defendant in the litigation.

18. In Vidler v Merit Engineering Pty Ltd (1987) 86 FLR 213, Miles CJ accepted that Bray CJ's statement was "as helpful as may be obtained anywhere". However, Miles CJ, in light of the Full Federal Court's decision in McKanna v Aspect Homes [1983] FCA 345; (1983) 51 ALR 603, qualified the ultimate matter referred to by Bray CJ to conduct on the part of the defendant that is misleading or in breach of undertakings. I accept that qualification. In Tyler v Custom Credit Corp Ltd [2000] QCA 178, before the Full Court of Queensland, Atkinson J (with whom McMurdo P and McPherson JA agreed) set out a helpful list of matters to be considered (at [2]). These include:

(1) How long ago the events alleged in the statement of claim occurred and what delay there was before the litigation was commenced;

(2) How long ago the litigation was commenced or causes of action were added;

(3) What prospects the plaintiff has of success in the action;

(4) Whether or not there has been disobedience of Court orders or directions;

(5) Whether or not the litigation has been characterised by periods of delay;

(6) Whether the delay is attributable to the plaintiff, the defendant or both the plaintiff and the defendant;

(7) Whether or not the impecuniosity of the plaintiff has been responsible for the pace of the litigation and whether the defendant is responsible for the plaintiff's impecuniosity;

(8) Whether the litigation between the parties would be concluded by striking out [in this case, dismissing] of the plaintiff's claim;

(10) Whether or not the delay has been caused by the plaintiff's lawyers being dilatory ... ;

(11) Whether there is a satisfactory explanation for the delay; and

(12) Whether or not the delay has resulted in prejudice to the defendant leading to an inability to ensure a fair trial. [Footnotes omitted]

These matters show the wide ambit of matters that the court is to consider in the exercise of its discretion.

19. In Vidler v Merit Engineering Pty Ltd (supra), Miles CJ held that a plaintiff against whom such an application is brought has a burden of explaining the delay. His Honour said (at 216):

It was submitted on behalf of the defendant that the plaintiff bore the onus of showing cause why an order dismissing the action should not be made. No authority was cited for this proposition and I am not prepared to affirm that it is true. On the other hand, a plaintiff who delays six years from the time of delivery of defence before taking a further step in his proceedings has as a matter of practical reality a persuasive burden of showing that the delay occurred for some justifiable reason or excuse. (My emphasis)

20. Miles CJ reached this conclusion prior to the introduction of O 33A to the Supreme Court Rules. In Ulowski (supra), Bray CJ remarked (at 281):

Speaking for myself I would deprecate any attempt to lay down any rules which would bind Courts dealing with future applications of this kind to hold that any particular onus was laid on either party to prove any particular matter, or that once a particular matter had been proved by either party a certain result would automatically follow unless the other party proved something else, though I do not by any means intend to exclude the application of Lord Mansfield's famous dictum in Blatch v Archer [(1774) [1774] EngR 2; 1 Cowp 63 at p65 [1774] EngR 2; (98 ER 969, at p970)] that all evidence is to be weighed according to the proof which it was in the power of one side to have produced and in the power of the other to have contradicted. See per Hart J in Campbell v United Pacific Transport Pty Ltd [(1966) Qd.R 465, at p478]. I think the discretion should be exercised as seems best in the interests of justice after considering in relation to the particular case the five matters mentioned above. [Those matters set out in para 18]

21. At the hearing of the motion on 27 August 2004, I sought from Mr Lunney some further explanation for the delay particularly having regard to the fact that any explanation for it is peculiarly within the plaintiffs' knowledge. Mr Lunney had relied upon an affidavit of his instructing solicitor, Ms Bruna Romano, sworn on 25 August 2004. The affidavit set out, with annexures attached, a short history of the proceedings, from 10 February 1999 to the dates in July and August 2004 when notices to strike out the action were given by the first defendant and the second, third and fourth defendants respectively. The affidavit outlined the correspondence between the parties' instructing solicitors in the 1999 to 2004 period, but provided no explanation for the period between 1989 and 1999. That affidavit also revealed that Ms Romano's husband (Mr Domenico Romano) had conduct of the matter between 1999 and 2001 and that he had suffered heart problems during 2000 and 2001, presumably for the inference to be drawn that this explained the delay for this period. No reason was given as to why the firm itself did not progress the matter.

22. Despite some opposition from counsel for the first defendant, as well as counsel for the second, third and fourth defendants, I adjourned hearing the motion to allow the plaintiffs to adduce further evidence in respect of the delay generally and particularly for the period between 1989 and 1999. When the application to dismiss the plaintiffs' claim was further heard on 8 October 2004, Mr Lunney relied on two affidavits sworn by Mr Antonio (Nino) Raso, one of the plaintiffs to the claim.

23. Mr Raso's affidavit, sworn 8 October 2004, says that the predecessor firm of the current solicitors were instructed in 1994. There was apparently a request of the solicitors who had taken over the matter for their file but, following this initial step, there appears that nothing further was done to prosecute this claim until a letter was sent to the same solicitors in December 1999, some five years later. No cause for that extensive period of delay was advanced other than presumably the non-receipt of the plaintiffs' file. That circumstance can hardly be regarded as a cause for some five years' delay in taking any further step in the proceedings.

24. Mr Lunney also relied upon an affidavit of Mr Raso, sworn 1 October 2004. In that affidavit, the deponent identified a 1989 claim by the plaintiffs against NRMA Insurance Ltd. Mr Raso says this was "an action on the Insurance Policy for the property which ... had been the subject of the Criminal action" and that the wrongful imprisonment claim, the present action, was "put on hold pending the outcome of the Civil action against the NRMA which went on Appeal in July 1992 and judgment was delivered on 9th December 1992 (sic) in our favour". Although I was not taken to it and no further reference to such an action was made, this appears to be a reference to Raso v NRMA Insurance Ltd (unreported, New South Wales Court of Appeal, Mahoney CJ, Priestley and Handley JJA, 14 December 1992).

25. Mr Raso's affidavit alleges that a further delay in litigating this claim was caused by two costs disputes associated firstly with the NRMA claim, and secondly with their former solicitors, both of which arose in 1993. He does not explain any causal link between the costs issue and why no steps were taken to progress this claim. Even if I were to draw an inference that the action against NRMA and the associated costs issues provides some cause for that period of delay without determining whether or not it was due cause, there is still no cause at all advanced for the period from 1994 to 1999.

26. The defendants claim that the nature of the documents lost, as well as the inevitable passage of time, severely prejudices their ability to defend this cause of action.

27. In relation to the charges brought against the first defendant, and in an affidavit sworn 29 June 2004, Mr James Watson, a member of the AFP, states:

8. I am aware that upon receipt of the Notice of Intention to Proceed by the NSW Crown Solicitor's Office, staff in the AFP Legal section caused a search to be undertaken of the AFP indices in an attempt to locate any file(s) that could assist in providing information surrounding the allegations which form the Claim. I am informed and verily believe that only one AFP file has been identified which relates to the subject matter of the Claim made by the Plaintiffs ... That file was destroyed on 1 August 2003 in accordance with Entry 1479 of the Administrative Functions Disposal Authority (2000).

9. I am informed that no documents exist (other than those attached to this affidavit) that would allow the First Defendant to properly defend the Claim ... Accordingly, the general passing of time will mean that it is now extremely difficult for the First Defendant to properly address the allegations in the Claim, and to proceed with the Claim now would cause prejudice to the First Defendant.

28. Annexed to the affidavit was the aforementioned Brief Facts Sheet (see paragraph [5]), as well as bench sheets relating to the charges laid against both plaintiffs. The duty book of the first defendant for the dates of 3 and 4 July 1988 was annexed to a supplementary affidavit of this deponent, sworn 27 August 2004.

29. On behalf of the plaintiffs it was put forward that the overwhelming majority of official documentation that was created at the time the tort was alleged to occur was still in existence and is still available. A more pertinent issue is whether, having regard to the passage of time, the defendants can be expected to give evidence supplementary to such records, created almost twenty years ago. The affidavit of Jennifer Burnett, sworn 27 August 2004, in her capacity as instructing solicitor for the first defendant, quotes the first defendant as saying:

I can remember attending the Raso's house ... with a number of the NSW police officers. I can't remember whether we arrested the Raso's at their home or whether they came to the station voluntarily. I can't remember what was said or what they were doing at the time. When they came back to the station I can't remember whether I questioned them or whether the NSW police did ...

I remember I attended the Magistrates Court the next day for the extradition hearing, and that was the last I heard of the matter until I bumped into a couple of the NSW police at Batemans Bay sometime later and they told me that the case had been thrown out.

30. Mr Crowe SC referred to the arrest as having taken place under s 352A of the Crimes Act 1900 (NSW) as it applied to the Territory at the relevant time. That provision deals with the power of arrest without warrant for offences committed outside the Territory. The proceedings exhibited to an affidavit of Ms Lark of 9 August 2004 that took place before a magistrate on 4 July 1986, on the day of the arrest, show that the plaintiffs appeared as a consequence of a warrant issued in Queanbeyan by a NSW magistrate and endorsed (presumably under the Service & Execution of Process Act 1901 (Cth)) by a Justice of the Peace in the Australian Capital Territory. The arrest appears to have been effected pursuant to that warrant. Evidence was apparently given by the fourth defendant to support the issue of the warrant. That is a very relevant evidentiary issue as the plaintiffs, by the particulars that they have given, contend that their arrest was without warrant.

31. Even by reference to the official police records, it may be that whatever documents exist outlining the circumstances leading to the arrest of the plaintiffs they do not even assist as aids to the memory of the witnesses. After almost twenty years, the defendants could not be expected to review with clarity or certainty, the existence or the accuracy of such records.

32. The defendants also referred to the loss of the records of Dr Jacob T H Foo. Dr Foo was a general practitioner whom one of the plaintiffs visited a week after the alleged tort occurred. It is accepted between the parties that Dr Foo no longer has his records of that appointment. The records were originally produced to this court, but were uplifted, and they are now believed either lost or destroyed. The only original document created by Dr Foo which has been retained by him in relation to this matter, is a letter dated 11 October 2002. Such a record is not contemporaneous.

33. Leaving aside the potential loss of documentary evidence, the defendants also contend that they are prejudiced by the natural and inevitable diminution of memory of witnesses which predictably arises in instances of long delay in litigation. The second, third and fourth defendants' written submissions refer to the remarks of McHugh J in Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 186 CLR 541, where, by reference to the continuing relevance of statutory time limitations, his Honour observed (at 551):

_... where there is delay the whole quality of justice deteriorates' [_R v Lawrence [1982] AC 510 at 517]. Sometimes the deterioration in quality is palpable, as in the case where a crucial witness is dead or an important document is destroyed. But sometimes, perhaps more often than we realise, the deterioration in quality is not recognisable even by the parties. Prejudice may exist without the parties or anybody else realising that it exists. As the United State Supreme Court pointed out in Barker v Wingo [(1972) [1972] USSC 146; 407 US 514 at 532], `what has been forgotten can rarely be shown'. So it must often happen that important, perhaps decisive, evidence has disappeared without anybody now "knowing" that it ever existed.

34. This is clearly a relevant consideration in the present case. The silent prejudice of time continues to accrue against both parties. And, in what is already a troubled nineteen-year history, this appreciably increases the very real risk of injustice occurring.

35. The plaintiffs' cause of action is that of false imprisonment. It involves a trespass to the person. An important aspect is a requirement for the defendant to justify the arrest. I refer to the observations in Laws of Australia, 33 Torts, `33.8 Intentional Torts' [96]:

Although questioned in dicta in Australia, trespass to the person in non-highway cases such as false imprisonment does not require proof of fault by the plaintiff. It is for the defendant to raise as a defence the absence of fault, that is, that intention was absent and that all reasonable care was taken or that the action was otherwise justified by law...[Footnotes omitted]

The requirement that the defendants must justify the arrest means that the passage of time since the event will inevitably affect their ability to do so. It is not difficult to see in the circumstances of this case that the delay itself is almost conclusive of the prejudice to the defendants having a fair trial.

36. Having regard to the circumstances of this case, particularly the inordinate length of the delay involved, the unsatisfactory nature of the explanation for it, the prejudice that the passage of time has to the defendants having a fair trial and notwithstanding the serious consequences to the plaintiffs in having a cause of action left statute barred, I am satisfied that the plaintiffs have delayed prosecution of these proceedings without just cause and that the proceedings should be dismissed. I so order.

I certify that the preceding thirty-six (36) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Gray.

Solicitor for the plaintiffs: Romano Satsia Kordis Legal

Solicitor for the first defendant: The Australian Government Solicitor

Execution of Process Act 1901

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