HIS HONOUR: By motion, notice of which was filed on 25 February 2015, the defendant seeks to strike out a reply filed by the plaintiff on 11 February 2015. Leaving aside the reply, the pleadings currently consist of an amended statement of claim filed on 27 August 2014 and a defence filed on 24 October 2014. Earlier, the plaintiff moved to strike out certain paragraphs of the defence. That motion was heard and determined by my colleague, Taylor DCJ, on 5 December 2014: Rook v State of New South Wales [2014] NSWDC 304. The reply was clearly filed after the hearing of that notice of motion. The motion was dismissed with costs.
The plaintiff has commenced proceedings based on a number of "police tort claims" using the terminology of s 9B of the Law Reform (Vicarious Liability) Act 1983. The torts pleaded are:
1. Assault and battery;
2. false imprisonment;
3. detention of goods; and
4. malicious prosecution.
In this now very common type of litigation, much emphasis is laid on the words "wrongful arrest" but such an action is not in itself a tort. An unlawful arrest may constitute trespass to the person. For example, the second heading in the statement of claim refers to "False Imprisonment and Wrongful Arrest" and par 6 gives "Particulars of False Imprisonment" and par 7 gives "Particulars of Wrongful Arrest". I have had cause to remark previously on this woolly thinking which turns an unlawful arrest into a tort. It is not a tort and should not be pleaded in that fashion. Further, in the statement of claim there are headings referrable to "Malicious Prosecution" after which follow pars numbered 8 to 11, and there is then a heading "Assault and Battery" which contains pars numbered 12A to 12C, and then there is another heading "Detinue", before a heading "Damages" which refers to certain damages claimed by the plaintiff.
The Law Reform (Vicarious) Liability Act 1983 provides in s 6 that for the purposes of that Act a police officer is deemed to be a person in the service of the Crown and not a servant of the Crown. Section 8 refers to the liability of the Crown under the statute for the acts of persons in its service where the acts were done in certain circumstances. Part 4 of the Act which commences with s 9 provides for torts committed by police officers when the person who committed the tort was actually a police officer, even though they may have subsequently left the service of the Crown. Under the Crown Proceedings Act 1988 the Crown can be sued under the title "The State of New South Wales".
Paragraph 3 of the statement of claim is this:
"On or about 5 June 2011, the plaintiff had driven his motor vehicle to the common property of his residential premises, namely 2B Victoria Road, Bellevue Hill, in the State of New South Wales ('the plaintiff's residence')."
The defence to that paragraph is this:
"In answer to par 3 of the amended statement of claim, the defendant:
(a) admits that on or about 5 June 2010, the plaintiff had driven his motor vehicle;
(b) denies that the plaintiff drove his motor vehicle to the common property of his residential premises, namely 2B Victoria Road, Bellevue Hill, in the State of New South Wales ('the plaintiff's residence');
(c) says that, at all material times, while driving his motor vehicle, the plaintiff was driving with a mid-range prescribed concentration of alcohol, which was an offence pursuant to s 9(3) of the Road Transport (Safety and Traffic Management) Act 1999 (repealed)."
Paragraph 4 of the statement of claim is in these terms:
"Constable Sean Erwin and Probationary Constable Mako Trifunovic, being police officers at the time, proceeded to wrongfully arrest the plaintiff at the plaintiff's residence."
The use of a split infinitive must be decried. The offending adverb probably ought not be within the split infinitive because it is a conclusion of law rather than an assertion of fact. However, that pleading was not challenged by the defendant. The defence to this paragraph in the statement of claim is this:
"In answer to par 4 of the amended statement of claim, the defendant:
(a) says that the plaintiff was stopped by the police officers at 2A Victoria Road Bellevue Hill in the State of New South Wales ('the adjoining premises');
(b) says that the police officers breath tested the plaintiff at the adjoining premises pursuant to s 13 of the Road Transport (Safety and Traffic Management Act) [sic] 1999 (repealed) (breath test);
(c) says that the plaintiff failed the breath test by registering a mid-range prescribed concentration of alcohol;
(d) admits that the police officers arrested the plaintiff;
(e) says that the arrest was lawful because it was conducted following the failed breath test pursuant to s 14 of the Road Transport (Safety and Traffic Management) Act 1999 (repealed);
(f) alternatively, the arrest was lawful because [various statutory defences under the Law Enforcement (Powers and Responsibilities) Act 2005 - LEPRA].
(g) otherwise denies par 4."
Paragraph 5 of the statement of claim is this:
"By reason of the defendant's conduct, the plaintiff suffered great fear and distress of mind and indignity, was deprived of his liberty and suffered loss and damage."
The defence to that plaint is this:
"In answer to par 5 of the amended statement of claim, the defendant:
(a) admits that the plaintiff was deprived of his liberty;
(b) otherwise does not admit par 5."
It is not currently necessary for me to refer to the particulars of "false imprisonment" and the particulars of "wrongful arrest" contained in pars 6 and 7.
Par 8 of the statement of claim is in the following terms:
"The police officers referred to above, together with Sergeant Mark Drury, a police officer at the time, caused or permitted an information to be laid before a Magistrate of the Local Court of New South Wales on or about 25 October 2011 and 3 February 2012, which alleged offences on the part of the plaintiff pursuant to as follows [sic]:
(a) Sequence 1: Drive with mid-range concentration of alcohol.
(b) Sequence 2: Disobey request/signal to stop for breath test.
(c) Sequence 3: Not stop vehicle when directed to do so."
The defendant has admitted that paragraph subject to an allegation that Sergeant Drury did not cause the information to be laid.
Paragraph 9 of the statement of claim is in the following terms:
"The proceedings flowing from the information referred to above were terminated favourably to the plaintiff on 3 February 2012 as follows:
(a) Sequence 1: Dismissed.
(b) Sequence 2: Dismissed.
(c) Sequence 3: Dismissed (offence held proved but dismissed without conviction)."
The defendant admitted in par 8 of its defence that the criminal proceedings were terminated favourably to the plaintiff in respect of sequences 1 and 2, but denied that sequence 3 terminated favourably to the plaintiff. It ought be clear from par 9(c) of the statement of claim that the plaintiff obtained a s 10 dismissal of the sequence 3 charge, and there is authority to suggest that such a dismissal is not a favourable outcome for the plaintiff: Clavel v Savage [2013] NSWSC 775, a decision of Rothman J. There is also a similar Victorian decision of Cameron v James [1945] VLR 113.
Paragraph 10 of the statement of claim is in the following terms:
"The information was laid with actual malice on the part of the defendant by the police officers referred to above, together with Sergeant Drury, and without reasonable and probable cause (in relation to the disobey request to stop for breath test and drive with mid-range concentration of alcohol charges).
Particulars of Malice
(a) The defendant, by the officers referred to above, had actual knowledge that it was unlawful to arrest the plaintiff.
(b) On or about 14 July 2011, Annette Woods, a solicitor then acting for the plaintiff and then in the employ of LAC Lawyers, made representations in writing as to the absence of any prospect of success in relation to the prosecution referred to above to the commander of the Rose Bay Local Area Command ('the representation').
(c) Having received the representations, the defendant failed to seek to withdraw the prosecution."
The defence to that paragraph is this:
"In answer to par 10 of the amended statement of claim, the defendant:
(a) admits that the information was laid by the police officers;
(b) admits that Annette Woods, a solicitor acting for the plaintiff and then in the employ of LAC Lawyers, made representations in writing to the commander of the Rose Bay Local Area Command as to the absence of any prospect of success in relation to the prosecution;
(c) admits that the prosecution was not withdrawn;
(d) otherwise denies par 10."
Paragraph 11 merely alleges that the defendant with actual malice failed to seek to withdraw the proceedings and that is denied by par 10 of the defence. It is not clear whether the denial refers to a failure to seek to withdraw the proceedings or the actuation by malice or both. No doubt the plaintiff will request appropriate particulars. It is not presently necessary for me to describe the rest of the pleadings.
It is obviously the case that the police for some reason or another stopped the plaintiff for a roadside breath test in Victoria Road, Bellevue Hill and there was a dispute as to whether that occurred at 2A Victoria Road or 2B Victoria Road. If the breath test was conducted at the plaintiff's place of abode, the breath test result was inadmissible in criminal proceedings. Having administered the breath test and having obtained a mid-range finding, the plaintiff was arrested, taken to the police station, submitted to the breathalyser machine and then processed, no doubt being granted police bail after the necessary administrative procedures of arresting, charging and bailing.
It is clear that the Crown failed to prove beyond reasonable doubt that the plaintiff either disobeyed a request or signal to stop for a breath test, or that he drove with a mid-range prescribed concentration of alcohol in his blood or breath. It may well be that the learned magistrate was not satisfied beyond reasonable doubt as to where the breath test was conducted. Therefore, the fact that it may have been conducted at the plaintiff's place of abode would require the rejection of the breath analysis certificate, and without the admission of that certificate the prosecution must fail.
An unusual feature of the current case is the pleading of a claim in detinue because, when the police arrested the plaintiff they took from him, in the normal course of police work, the plaintiff's belt, mobile telephone and keys, and the plaintiff claims damages in respect of the detention of those goods, he having demanded them back at the time that they were taken from him. The quantum of damages for that tort would, one would think, be quite nominal.
The reply as filed is this:
"In answer to the Defence to the Amended Statement of Claim filed 24 October 2014, the Plaintiff replies:
(1) It is not open for the defendant to allege guilt on the part of the plaintiff in respect of the criminal charges referred to in paras 8 and 9 of the amended statement of claim.
(2) It is not open to this honourable Court to consider the guilt or innocence of the plaintiff in respect of the criminal charges referred to in paras 8 and 9 of the amended statement of claim.
(3) In this Reply 'alleged guilt' includes an allegation of criminality or a breach of a criminal statute."
An assault has, in essence, three elements. They are:
1. an act involving an element of threat to touch another, that is some threat of force,
2. done in a hostile manner, and
3. done intentionally.
The elements of battery are:
1. a physical touching, whether by hand, weapon or missile, of the body of another, (or the application of force to the other person),
2. contrary to the other's right of freedom from unwanted physical contact, and
3. done intentionally.
The elements of false imprisonment appear to be:
1. the restraint of the liberty of the person, by confining him,
2. the confinement must be total,
3. for some period of time, however short, and
4. done intentionally.
If a party such as the current defendant wishes to allege that there was a lawful detention, or a lawful imprisonment, the onus of proof is upon the defendant.
The elements of the tort of malicious prosecution are:
1. a prosecution initiated by the defendant;
2. the prosecution terminated favourably to the plaintiff;
3. the defendant acted with malice in bringing or maintaining the prosecution;
4. the prosecution was brought or maintained without a reasonable and probable cause.
The authorities for the elements of the tort of malicious prosecution is A v New South Wales [2007] HCA 10; (2007) 230 CLR 500 and Beckett v New South Wales [2013] HCA 17 at [4]. The existence of a prosecution and its outcome are essential elements of the tort of malicious prosecution. They are not direct elements of any other of the torts alleged here. However, an arrest and detention of both person and property may be involved in an arrest, and are relevant factually to the matrix of facts in the pleadings before me.
The policy behind the law relating to malicious prosecution is concerned with the consistency of judicial decisions. There ought be no inconsistency between a criminal prosecution and related civil proceedings. The following dicta in Beckett v New South Wales make that clear. In [5] of that judgment is this:
"The rationales for the rule evince the concern of the law with the consistency of judicial determinations, a concern that is distinct from proof of actual instance or guilt; a plaintiff who is wrongfully convicted of an offence cannot maintain an action for malicious prosecution, notwithstanding that he or she may possess irrefutable proof of innocence."
In such a case, of course, it is always open for the plaintiff to seek to have the conviction set aside by any of the procedures relating to an appeal or inquiry. At [50] of the reasons of the plurality their Honours said this:
"The requirement that the plaintiff prove favourable termination, as earlier explained, is concerned with the consistency of judicial decisions. Proof of favourable termination does not involve an inquiry into the underlying merits of the prosecution."
The defendant by its defence does not seek to establish that the plaintiff was guilty of the offences which were sequence 1 and sequence 2. That is made clear from the pleadings themselves, and from what fell from Taylor DCJ in his decision at [9], but there is an error in that paragraph which needs to be corrected. His Honour said, in essence, this:
"In answer to the proposition that Mr Rook's guilt or innocence of the criminal charge is not in issue in the action for malicious prosecution, the State submits that it is not challenging the [acquittal on sequence 1 and sequence 2]. Rather, it seeks to prove that the prosecution was brought with reasonable and probable cause. The State submits that whether Mr Rook engaged in conduct constituting a serious offence is relevant to the question of damages under s 54 of the Civil Liability Act 2002."
The defendant admits the three charges laid. The defendant admits that two of them were determined favourably to the plaintiff. The pleadings admit that. What the reply appears to say is that it is not open to the defendant to re-try the plaintiff on those two charges. That is a correct statement of principle, but that is a matter of law that arises from what has happened and which is clearly described in the pleadings which I have quoted. Realising that the form of the current reply might be bad, the plaintiff's solicitors wrote to the defendant's solicitor on 16 February 2005 proposing a new reply which I have marked for identification "1". Essentially, the reply proposed by MFI1 seeks to establish that certain questions of fact determined by the magistrate in his decision constitute findings of fact giving rise to res judicatae, and therefore that the defendant is estopped by those res judicatae. This is not, in my view, open.
The onus of proof in criminal proceedings is beyond reasonable doubt. The onus of proof in civil proceedings is on the balance of probabilities. Minds may differ as to whether because the Crown, in essence, is the current defendant as well as the prosecutor, some res judicata could arise. The only res judicata that does arise is as to the outcome of the proceedings, not of facts found by the magistrate or of facts which the magistrate failed to find in the criminal proceedings. For example, in MFI1 the plaintiff seeks to state that it is not open to the defendant to establish that the plaintiff was breath tested at 2A Victoria Road, Bellevue Hill, rather than at 2B Victoria Road, Bellevue Hill. No such res judicata can be established by whatever was said by the learned magistrate because he had to be satisfied of something beyond reasonable doubt. A similar reply is sought to what is stated by the defendant in par 3(a) as to where the plaintiff was stopped by the police. A similar reply is raised concerning what was alleged by the defendant in par 3(b) of the defence, as to where the breath test was administered.
The earlier determination of the magistrate is said to prevent from being agitated by the defendant certain issues because the plaintiff, in essence, alleges because the prosecution was unsuccessful the arrest must have been unlawful. That is a non sequitur. Many people are often charged and acquitted. The issue is whether the arrest was lawful, and that depends upon the defendant's proving something, not the plaintiff's proving something. The reply as filed, or the proposed amended reply, does not advance the case anywhere. In my view, issue is clearly joined on the defence and there is no need for any reply. It has to be borne in mind that the principles of pleading require a party to plead only a summary of material facts upon which the party relies, and not evidence upon which the facts are to be proved. Pleadings are supposed to be brief. A party need not plead a fact if the burden of disproving the fact lies on the opposite party. It is not necessary for the plaintiff, for example, to prove that the arrest was wrongful. It is up to the defendant to prove that the arrest was lawful.
Uniform Civil Procedure Rules r 14.14 requires that both in a statement of claim and any subsequent pleading a party must plead any matter that may take the other party by surprise, or makes any claim or defence not maintainable. It must also plead any facts which do not arise from the earlier pleadings. The factual matrix is adequately summarised in both the statement of claim and the defence. The plaintiff seeks to justify the reply under UCPR r 14.19 which enables a pleading to raise a point of law. The learning in Ritchie's Service under that is this:
"If a question of law is raised, it should be taken clearly and explicitly: Stokes v Grant (1878) 4 CPD 25; Burrows v Rhodes [1899] 1 QB 816 at 818. If the pleading raises a properly arguable question of law it will not be struck out: Tomkinson v South Eastern Railway Co (No 2) (1887) 57 LT 358; Hodges v New South Wales (1988) 77 ALR 1; 62 ALJR 190. However, where all the facts pleaded are admitted and the only issue is a point of law, no evidence will be admitted at the trial: Pioneer Plastic Containers Ltd v Commissioner of Customs and Excise [1967] Ch 397; [1967] 1 ER 1053."
There is no real issue of law here. The issue is a factual context in which there are some irrebuttable presumptions, that is the innocence of the plaintiff on the sequence 1 and sequence 2 charges. Furthermore, the plaintiff himself suffers from the irrebuttable presumption that the offence contained in sequence 3 was proved, but the plaintiff obtained the benefit of s 10 of the Crimes (Sentencing Procedure) Act 1999.
Considerable time and care has been taken in seeking to assist me in this determination. Besides the authorities to which I have already referred, I have also been referred by counsel for the plaintiff to East West Airlines (Operations) Ltd v Commonwealth of Australia (1983) 49 ALR 323, a decision of Dawson J concerning what needs to be pleaded in a claim seeking a declaration of a contravention of s 92 of the Constitution, and Udowenko v St George Bank [2011] NSWSC 1122, a decision of Johnson J, where his Honour was clearly confronted with a much more prolix and embarrassing pleading than is involved in the current case. Another case that was referred to was Liao v State of New South Wales [2014] NSWCA 71, in particular what fell from Barrett JA between [206] and [215].
In my view, both the reply filed and the proposed amended reply raise no new issue of fact and raise no issue which, if not pleaded, would take the defendant by surprise. The issues joined on the defence are sufficient for the purpose of the disposal of the current proceedings. For those reasons, the reply filed on 11 February 2015 is struck out. I refuse leave to the plaintiff to file an amended reply. The plaintiff will pay the defendant's costs.
HUTCHINGS: Your Honour, may I tax you for a moment? The theme of the reply, in my submission, was consistent with the theme of the argument that was advanced before Taylor J about what the effect of the criminal proceedings was on the proceedings in this Court. Not only was I intending to make an application for costs, which your Honour has already made.
HIS HONOUR: Costs follow the event Mr Hutchings in this part of my jurisdiction anyway. There are lots of parts of my jurisdiction where it doesn't happen. You should try and get costs in criminal cases, that's a really hard one.
HUTCHINGS: This is the second occasion this type of argument has been advanced on behalf of the plaintiff. I ask that your Honour make a costs order that the costs be payable forthwith, and that pursuant to r 42.26 the costs ordered by Taylor J be now payable because we have revisited an argument at length that has already been sufficiently and properly addressed by this Court. The third thing I'd ask your Honour for is that the plaintiff be directed under r 42.32 to the plaintiff's solicitors to advise the plaintiff of the expense incurred to date and the likely outcome of the proceedings, which is a Smyth order, so that he can make a determination about whether he wishes to consider his position to proceed to hearing or take any other course.
ROBISON: Your Honour there is no basis for costs being payable forthwith, and that's not an application that I can meet without obtaining detailed instructions, for example, as to the plaintiff's means to do that.
HIS HONOUR: The only thing I know about the gentleman is he lives in Victoria Road, Bellevue Hill.
ROBISON: Yes, and costs orders have already been made in relation to the previous motion. It's not appropriate to revisit those in my submission, and I can undertake to advise the plaintiff in our next conference of the outcome of the proceedings. There's no need to make an order.
HIS HONOUR: Mr Hutchings, I don't like making orders for the assessment of interim costs orders because it's in the interests of both the State of New South Wales, vis-a-vis the defendant, and the Court, as well as the plaintiff, to get the case finalised and it will only hinder that process. Having lost the motion to strike out the defence, and having lost this motion, I should imagine the plaintiff would be well advised to take a hearing date.
HUTCHINGS: It does have one on 18 May.
HIS HONOUR: It's got a hearing date has it?
HUTCHINGS: Yes, five days.
HIS HONOUR: It was stood over for case management directions hearing on the 20th of this month, that's next week isn't it?
HUTCHINGS: That's to confirm the date. The file doesn't appear to have been very well endorsed your Honour in terms of the progress of the matter.
HIS HONOUR: Yes, it's for hearing on 18 May 2015 for five days.
[2]
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: 12 October 2015