Ritson v Myers

The Legislative Framework 9Section 10 of Law Reform (Vicarious Liability) Act states: 10 Effect of statutory exemptions (1) In this section: person includes the Crown. statutory exemption means a provision made by or under an Act which excludes or limits the liability of a person. For the purposes of determining whether or not a person is vicariously liable in respect of a tort committed by another person, any statutory exemption conferred on that other person is to be disregarded. Except as provided by this section, nothing in this Act affects a statutory exemption conferred on a person. 10Section 556 (2) provides: 556 Summary conviction a bar to further proceedings [...] (2) Any person against whom civil proceedings have been taken in respect of any act or thing done or omitted to be done by him or her which is an offence of which he or she might have been convicted summarily without consent under this Act shall be released from all criminal proceedings for the same cause on the information of the person by whom the civil proceedings were taken. 11The legislative history of this provision was carefully traced in Knezevic v Markovic. Consideration was given to whether s 556 should be construed as a bar to civil and criminal proceedings that arise from the same cause. Similarly to the current proceedings, the proceedings in Knezevic v Markovic arose out an assault. However in that case, the appellant was convicted of assault and served a term of imprisonment. The civil proceedings were commenced following the outcome of the criminal proceedings. 12A forerunner of the provision appeared in early statutes of the Imperial Parliament. The Act 9 Geo IV No 1 (NSW) applied these statutes in NSW. They included provisions whereby a person who had paid a penalty, whether a term of imprisonment or monies owed, was released from all further proceedings or other proceedings for the same cause: Knezevic v Markovic at 9 - 20. In Knezevic v Markovic, the court concluded that the inclusion of the words 'for the same cause' was 'more likely to have been due to a desire on the part of the legislature to remove any doubt as to the extent of the bar': Knezevic v Markovic at 20. From its early beginnings, the bar was adapted and was included in the consolidation of the criminal law at the turn of the century. Notwithstanding some changes to these provisions, the legislative intention was to bar not only criminal but also civil proceedings 'for the same cause'. 13The court also outlined the purpose of such a bar. Essentially, according to early legislation, for example the Act 9 Geo IV No 1 (NSW), where a party was assaulted they had available two modes of proceeding to punish the offender. In such cases, s 28 of 9 Geo IV prevented the prosecutor from bringing additional actions for the same cause: Knezevic v Markovic at [23]. As the provision evolved into its current form, the purpose remained largely the same: Section 556 was originally intended...to prevent multiplicity of actions and to put a person aggrieved by an act which is both a crime and a tort at his election to institute either civil or criminal proceedings: Knezevic v Markovic at [2] per Blackburn J. 14Section 556 operates to prevent a multiplicity of criminal or civil actions, thereby ensuring a person shall not be liable in any other proceedings 'for the same cause': Knezevic v Markovic at [40].

"For The Same Cause" 15The plaintiff submits that the criminal proceedings do not arise from the same cause of action as the civil proceedings, on the basis that the cause of action in the District Court had civil foundations with a remedy that was designed to place the plaintiff in the same position as he was before the tort was committed. According to the plaintiff, this is a different and distinct cause to that of the Local Court proceedings, whereby the "remedy" or outcome is to punish the defendant for wrongdoing. 16The Crimes Act does not define "cause of action". It is therefore appropriate to consider other definitions of the term. In "A Dictionary of Modern Legal Usage", "cause of action" is defined as "a group of operative facts, such as a harmful act, giving rise to one or more legal rights of action": Byran A. Garner, A Dictionary of Modern Legal Usage, 2nd ed, 1995, Oxford University Press, 140. 17In Read v Brown (1888) 22 QBD 128, the court determined the expression to "...have long been judicially defined as meaning ... the material facts...". 18The material facts that gave rise to the District Court civil proceedings was the physical act of throwing a pizza box. The material facts that give rise to the prospective prosecution against Ms Myers is the physical act of throwing a pizza box. Accordingly, while the remedies for each action may differ, the proceedings were initiated for the same cause.

The Same Person 19The plaintiff argued that the precondition, pursuant to s 556(2), that the same "person" be the subject of both the criminal and civil proceedings, was not met. It was submitted that the civil proceedings were pressed against the State of NSW (not a person), and that Ms Myers was a 'mere witness' in those proceedings, whereas the criminal proceedings were initiated against Ms Myers as a defendant in her personal capacity. This argument proceeds on the basis that "person" in s 556(2) must be construed as "party", and that it refers solely to natural persons. 20At the time of the incident Ms Myers was a sworn member of the New South Wales Police, therefore rendering her an employee of the State. Pursuant to s 8 of the Law Reform (Vicarious Liability) Act the State was vicariously liable for Ms Myers' actions. Further, amendments to the Act in 2003 precluded the plaintiff from joining Ms Myers as a party to the proceedings in accordance with s 9B Law Reform (Vicarious Liability) Act. Section 9B(1) defines a police tort claim. Section 9B(2) reads: 9B How can police tort claims be made? [...] (2) Except as provided by this Part, a person may not in any legal proceedings make a police tort claim against the police officer concerned, but may instead make the claim against the Crown. [...] 21Clearly, at the time of the civil proceedings, which qualified as a police tort claim, Mr Ritson was restrained from filing a statement of claim against Ms Myers as the defendant. Prior to this amendment, a police officer could be named as the defendant. The High Court considered this provision in State of New South Wales v Ibbett [2006] HCA 57; (2006) 229 CLR 638. At [58] the Court said : The scheme of s 9B is to require persons in the position of Mrs Ibbett to sue only the State, and to do so instead of making a claim against the police officers. 22It is apparent that Ms Myers was not a party to the civil proceedings. However, she was the alleged tortfeasor. She was more than a mere witness in the proceedings. The civil proceedings were taken against her in the sense that the pleadings were directed to her allegedly tortious conduct. The State of NSW stood in her shoes as the defendant only by virtue of the operation of statute. The State assumed liability for Ms Myers' acts that would otherwise have been sheeted home to her. 23The phrase "person against whom civil proceedings have been taken" in s 556(2) of the Crimes Act ought not, in my view, be interpreted as synonymous with "a party to civil proceedings". 24Nor can "person" in s 556(2) be confined to natural persons. When construing the meaning of any legislation "[t]he primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute.": Project Blue Sky Inc v Australian Broadcasting Authority (1998) 153 ALR 490 at [509]. Section 4 of the Crimes Act provides that "Person, Master, and Employer severally include any society, company, or corporation." 25The Interpretation Act 1987 also contains an inclusive definition. Section 21 provides: "Person includes an individual, a corporation and a body corporate or politic." 26It is also relevant to note the terms of s 10 of the Law Reform (Vicarious Liability) Act. "Statutory exemption" means a provision under an Act which excludes or limits the liability of a person. Section 556(2) of the Crimes Act is a provision under an Act which excludes or limits a person's liability for criminal proceedings. Therefore, by the operation of s 10(3) of the Law Reform (Vicarious Liability) Act, the statutory exemption conferred on Ms Myers by s 556(2) of the Crimes Act is preserved. 27The legislative intention expressed through these provisions, when read together, is that the assumption of vicarious liability by the State of NSW for its servants is not to be taken as destroying the protection that was afforded to those individuals by the operation of a statutory exemption, had the individual been sued in a personal capacity. 28I am not persuaded that the magistrate erred on any of the bases advanced by the plaintiff.

Judicial Determination of Material Facts 29This appeal also touches upon the importance of the finality of judicial determinations. At the hearing of the appeal, the plaintiff was asked whether a magistrate hearing the criminal proceedings would be bound by the findings of fact made in the District Court. Counsel for the plaintiff categorically disavowed such a submission. Whist it may be said that the tribunal in a criminal prosecution is bound by a more onerous burden of proof than that in civil proceedings, it nonetheless raises the prospect that the Local Court would be confronted with the prospect of contravening findings of fact that had been made by another, superior court. This undesirable state of affairs no doubt in part underlies the policy behind s 556(2) of the Crimes Act.

Discretionary Powers 30In any event, s 59(2) of the Crimes (Appeal and Review) Act confers a discretion in this Court to determine an appeal by dismissing, or allowing, the appeal. If the above analysis regarding the application of s 556(2) of the Crimes Act is incorrect, the appeal should be dismissed on the basis that the factual matrix that gave rise to the litigation has already been determined in the District Court of NSW and there is no utility in re-litigating such a trivial matter. The remittal of this matter to the Local Court would in my view be a scandalous waste of scarce court time and resources.

Orders (1)The appeal is dismissed. (2)The plaintiff is to pay the defendant's costs. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 10 December 2012