Saad v State of New South Wale

Procedural history 17These proceedings have had a very long and thoroughly unsatisfactory history in this Court. 18A statement of claim was first filed on 23 October 2007. It pleaded a cause of action for malicious prosecution arising out of the arrest of each of the plaintiffs in 2002, the fact that they were subsequently charged, that they were subject to a committal, that they were indicated and put on trial. 19On 8 July 2008, the plaintiffs filed a notice of motion seeking leave to file a proposed amended statement of claim. When the motion was listed before the Court on 11 July 2008, the plaintiffs sought an adjournment because it was necessary, so the Court was informed, for the plaintiffs to file an application for an extension of the limitation period with respect to the proposed amendments. 20After further directions hearings, the plaintiffs served a third proposed amended statement of claim. 21That document pleaded causes of action based upon the tort of malicious prosecution, misfeasance in public office and false imprisonment. Insofar as, the second, fourth and fifth plaintiffs were concerned, this third version of the Statement of Claim pleaded the fact that they were arrested in April 1998 and remained in custody thereafter for the period defined. Neither the first nor the third plaintiffs had been arrested in 1998. The pleading did not suggest that any cause of action arose in their favour from the events of 1998 22This third pleading ended with this summary: "The plaintiffs plead that, having regard to the material facts set out in the preceding paragraphs, as a result of the prosecution maintained against them they sustained substantial injury, loss and damage. The said serious injury, loss and damage was due to the conduct of the defendant in committing the tort of malicious prosecution, misfeasance in public office and false imprisonment for the period between their arrest until each plaintiff was dealt with by a judicial officer." 23Proceedings with respect to this third Statement of Claim, and the plaintiffs' notice of motion seeking an extension of the limitation period, came before Hall J on 21 October 2008. On that day, senior counsel appeared for the plaintiffs. He put this to the Court: "... the contention [of the defendant] will always be that in respect of the period in 1998 all claims are out of time including mal pros. The wrongful arrest and false imprisonment probably are out of time and probably are out of time for all purposes but they're, as your Honour will be aware, of very limited duration. They were arrested on one day and charged on the next, so the damages that might appertain to that would be entirely de minimis one would have thought ..." 24Later, senior counsel informed the Court that he could not move on the motion because it was not apposite to the circumstances in any way. It was inevitable that, in light of this attitude, the motion would be dismissed. 25This exchange then occurred: "His Honour:So do I understand, what you're foreshadowing is you want to amend to bring in the 1998/1999 episode as an aspect of the malicious prosecution action? Senior counsel:Yes. We would accept that we are out of time in respect of the wrongful arrest and false imprisonment for that particular period." 26Hall J dismissed the notice of motion seeking an extension of time, and ordered the plaintiffs to pay the defendant's costs of that motion. He gave a direction that any further proposed amended statement of claim be served within seven days. He ordered that if the amendments were not consented to, that the plaintiffs file a notice of motion seeking leave to file any further statement of claim. 27The plaintiffs served a further statement of claim, entitled "Amended Statement of Claim", on the defendants within the time limited by the Court's orders. The defendant consented to the amendments and that Amended Statement of Claim (the fourth) was filed on 17 November 2008. This statement of claim pleaded causes of action for malicious prosecution, wrongful arrest and false imprisonment relating to the arrest of each of the plaintiffs in August 2002. It further pleaded a claim for misfeasance in public office. I note that this fourth statement of claim included a recitation of the facts relating to the 1998 arrest, but it did not make any claim based upon those facts. They were pleaded merely as material relevant background facts. 28A second Amended Statement of Claim (being the fifth statement of claim) was filed on 28 May 2009. Although this, fifth statement of claim, continued to allege the arrest in 1998, the claim against the State was based solely on causes of action arising from the arrests in 2002. 29On 28 September 2011, the plaintiffs' solicitor served a proposed Third Amended Statement of Claim. This sixth statement of claim sought, for the first time on behalf of the second, fourth and fifth plaintiffs, to make a claim for wrongful arrest with respect to their arrests in April 1998. 30On 6 March 2012, the solicitor for the plaintiffs served a further version of this proposed amended statement of claim (the seventh version of a statement of claim). 31After correspondence with the defendant, on 27 March 2012, the plaintiffs' solicitor served a further version of the proposed Third Amended Statement of Claim. This was the eighth statement of claim served in the matter. 32After a further directions hearing, the plaintiffs served a fourth version of the proposed Third Amended Statement of Claim on 30 May 2012. This is the ninth version of a statement of claim, prepared by the plaintiff over a four and a half year period. 33This ninth statement of claim was the version subject to the application heard by the Court on 13 July 2012 for leave to amend. 34The correspondence between the parties enabled the objections of the defendants to this ninth version of the statement of claim to be confined to four areas. 35It will be necessary to consider each of those areas separately, but it is appropriate, first, to note the principles applicable to applications to amend pleadings.

Amendment of pleadings 36The power of the court to grant the amendment of any filed documents is contained in s 64 of the Civil Procedure Act 2005. Relevantly, it is in these terms: "64.Amendment of Documents Generally (1)At any stage of proceedings, the court may order: (a) that any document in the proceedings be amended; or (b) that leave be granted to a party to amend any document in the proceedings. (2)Subject to section 58, all necessary amendments are to be made for the purpose of determining the real questions raised by or otherwise depending on the proceedings ..." 37Having regard to the fact that the amendment being sought is one that seeks to add a cause of action for which the limitation period has expired, the provisions of s 65 the Civil Procedure Act are also relevant. It is in the following relevant form: "65.Amendment of Originating Process after expiry of limitation period (1)This section applies to any proceedings commenced before the expiration of any relevant limitation period for the commencement of the proceedings. (2)At any time after the expiration of the relevant limitation period, the plaintiff in any such proceedings may, with the leave of the Court under section 64(1)(b), amend the originating process so as: (a) ... ; or (b) ...; or (c) to add or substitute a new cause of action, together with a claim for relief of the new cause of action, being a new cause of action that, in the court's opinion, arises from the same (or substantially the same) facts as those giving rise to an existing cause of action and claim for relief, set out in the originating process." 38It can be seen that the central consideration in such circumstances is whether the Court can be satisfied that the facts relied upon for the existing and the new causes of action, are "... the same (or substantially the same)...". 39The provisions of s 58 of the Civil Procedure Act are also relevant. They are in the following terms: "58.Court to follow dictates of justice 1.In deciding; (a) whether to make any order or direction for the management of proceedings, including: (i) any order for the amendment of a document, and ... the court must seek to act in accordance with the dictates of justice. 2.For the purpose of determining what are the dictates of justice in a particular case, the court: (a) must have regard to the provisions of sections 56 and 57; and (b) may have regard to the following matters to the extent to which it considers them relevant: (i) the degree of difficult or complexity to which the issues in the proceedings give rise, (ii) the degree of expedition with which the respective parties have approached the proceedings, including the degree to which they have been timely in their interlocutory activities; (iii) the degree to which any lack of expedition in approaching the proceedings has arisen from circumstances beyond the control of the respective parties; (iv) the degree to which the respective parties fulfilled their duties under section 56(3); (v) the use that any party has made, or could have made, of any opportunity that has been available to the party in the course of the proceedings, whether under rules of court, the practice of the court or any direction of a procedural nature given in the proceedings; (vi) the degree of injustice that would be suffered by the respective parties as a consequence of any order or direction; (vii) such other matters as the court considers relevant in the circumstances of the case." 40Section 56 of the Civil Procedure Act provides that the overriding purpose of the Act and the Rules of Court is to facilitate the just, quick and cheap resolution of the real issues in the dispute or proceedings. It further provides that when exercising any power under the Civil Procedure Act or the Rules of Court, the court must seek to give effect to the overriding purpose. Section 56 also provides that a party to civil proceedings is under a duty to assist the court to further the overriding purpose, and to that effect to participate in the processes of the court and to comply with the directions and orders of the court. 41The application of principles of case management, and the manner of the exercise of the discretion of which the court is undoubtedly possessed, was considered in Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175. The majority of the High Court of Australia, Gummow, Hayne, Crennan, Kiefel and Bell JJ said (omitting footnotes): 111.An application for leave to amend a pleading should not be approached on the basis that a party is entitled to raise an arguable claim, subject to payment of costs by way of compensation. There is no such entitlement. All matters relevant to the exercise of the power to permit amendment should be weighed. The fact of substantial delay and wasted costs, the concerns of case management, will assume importance on an application for leave to amend. Statements in J L Holdings which suggest only a limited application for case management do not rest upon a principle which has been carefully worked out in a significant succession of cases. On the contrary, the statements are not consonant with this Court's earlier recognition of the effects of delay, not only upon the parties to the proceedings in question, but upon the court and other litigants. Such statements should not be applied in the future. 112.A party has the right to bring proceedings. Parties have choices as to what claims are to be made and how they are to be framed. But limits will be placed upon their ability to effect changes to their pleadings, particularly if litigation is advanced. That is why, in seeking the just resolution of the dispute, reference is made to parties having a sufficient opportunity to identify the issues they seek to agitate." 42In short, whether as directed by the Civil Procedure Act or in accordance with recent authority, I note that the granting of an amendment of an originating process is not an automatic procedure, and that the court is both obliged to, and entitled to, have regard to the events leading up to the making of such an application, including the previous conduct of the litigation and the expedition with which the parties have approached it.

First proposed amendment 43In paragraphs 7 to 19 inclusive of the proposed ninth version of the Statement of Claim, the second, fourth and fifth plaintiffs wished to add a new cause of action, claiming damages for wrongful arrest and false imprisonment arising out of their arrest and detention, it is claimed, unlawfully, in April 1998, when they were first charged with the murder of Mr McPherson. 44The cause of action is pleaded by recording the fact that each of these plaintiffs was arrested and charged. It identifies the police officer by whom the plaintiffs were charged. It records that each of the plaintiffs were refused bail and remained in custody for an identified period. 45The pleading then goes on to record facts which it asserts demonstrate that the police officers concerned with the arrests of the second, fourth and fifth plaintiffs had no sufficient basis for the arrest and charging of each of the plaintiffs. The pleading also pleads that the charges against the second, third and fourth defendants were all terminated in their favour. 46The pleading concludes with a paragraph to the following effect: "19.Having regard to the material facts as pleaded in paragraphs 15A, B, C, D(i)-(xx) and (xxiii), the second, fourth and fifth plaintiffs allege that the arrests effected by the informants on 13 March 1998 and 2 April 1998, occurred in circumstances where the said informants did not possess a reasonable suspicion that the second, fourth and fifth plaintiffs had committed a criminal offence such that in law the said arrests were in law wrongful, wherein the second, fourth and fifth plaintiffs had sustained damage." 47A second cause of action is pleaded with respect to wrongful arrest and imprisonment arising out of the arrests in August 2002. A third cause of action is pleaded, to which it will be necessary to return, in some detail of malicious prosecution which it is said commences with the committal hearing before the magistrate in the period 4 November 2002 to 27 March 2003. These last two causes of action were pleaded in the previous document. However, they provide the context within which the additional cause of action is to be viewed. 48The plaintiffs submit that the court ought exercise its discretion to permit this amendment because, having regard to their pleading of a cause of action for malicious prosecution, these arrests so far as the claims of the second, fourth and fifth plaintiffs are concerned, are inextricably linked with the later arrests and proceedings. Counsel for the plaintiff further submitted that the victim of the murder was the same, as were the charges, with respect to both occasions upon which the second, fourth and fifth plaintiffs were arrested. 49Counsel put the submission in this way: "What I am suggesting, that there was no change, so to speak, in the substantive way in which the accused were being charged. They were being charged with similar offences and to the extent that it is relevant for this application, primarily the most serious one of course being murder." 50Counsel was asked if there was anything else upon which he relied, and he responded: "No, your Honour. That is it. It is effectively arising out of, if I can put it this way, the same criminal investigatory matrix as the first one." 51Some facts can be discerned from the pleadings which are important. They are: (a)each of the arresting officers with respect to the 1998 arrests are different from, and took no part in, the arrests in 2002; (b)not all of the plaintiffs were arrested in 1998, the first and third plaintiffs do not claim to have this cause of action; (c)although the second, fourth and fifth plaintiffs were the subject of a hearing by way of a committal proceeding, no claim is made that that committal proceeding constituted any part of their cause of action for malicious prosecution; (d)none of the existing causes of action rely upon the events of 1998 as proving any necessary element of those causes of action. 52Section 65(2)(c) of the Civil Procedure Act calls attention to the identity of the facts giving rise to each claim. The section requires that the facts be the same, or substantially the same. It seems to me that the facts relied upon for the proposed new cause of action, when compared with the old cause of action, are not the same or substantially the same. 53In addition to the matters to which reference has just been made, there are these points which demonstrate the lack of similarity: (a)the two sets of facts occur at entirely discrete periods of time which are approximately four years apart; (b)none of the facts relating to the proposed new cause of action are said to give rise to the existing causes of action; (c)the elements of the "new" causes of action for wrongful arrest and false imprisonment are different from the elements of the "original" malicious prosecution. 54The submissions of counsel for the plaintiffs implicitly acknowledge that there is little commonality of fact. Counsel drew the Court's attention to the common fact as being the murder of Mr McPherson, and the fact that the process of being investigated and charged meant that there was an adequate degree of similarity. 55The fact that all causes of action have as a common fact the murder of Mr McPherson is without more, insufficient to meet the statutory test. It is merely a contextual fact, about which there is no real dispute. 56The fact that the process for investigation and charging was the same or substantially the same, adds little to the submission. What is of importance is not only what was done, which was different in each case, but also the mindset of the arresting officers. There can be no commonality of this feature - it is necessarily an individual enquiry of fact with respect to each police officer and other relevant persons. 57Accordingly, I cannot be satisfied, as s 65(2)(c) of the Civil Procedure Act requires me to be, that there is sufficient similarity to enable the addition of a cause of action for which time has expired. 58Even if I was satisfied, there nevertheless remains a discretion to refuse an amendment. 59I would not, even if s 65(2)(c) had been satisfied, have exercised my discretion in favour of the plaintiffs. 60The cause of action which the plaintiffs wish now to raise was raised at an earlier point in time and in circumstances where the plaintiff asserted it needed an extension of time to permit it to plead the cause of action. Clearly, on careful advice delivered by senior counsel who then appeared for the plaintiffs, the plaintiffs when before Hall J, chose to abandon their motion and to seek to further amend their statement of claim so as to remove the proposed cause of action. 61In other words, a deliberate forensic choice was made not to plead, or else proceed with, the cause of action which is now sought to be added. 62A further reason for exercising my discretion against the plaintiffs is that senior counsel for the plaintiffs before Hall J accepted that the extent of damages which would be available if the plaintiffs succeeded, was minimal. He described it as "de minimis". Counsel currently appearing for the applicants candidly informed the Court that the level of damages which may be expected would be quite small indeed, having regard to the fact that the only period for which damages for the wrongful imprisonment could reflect, is that up to when, on 3 April 1998, within 24 hours of arrest, the plaintiffs were brought before a court and bail was refused by the court. He conceded that at that point in their damages ceased. 63But most importantly, I can see no possible basis in accordance with the principles in Aon, and in accordance with the dictates of justice as that term is described in the Civil Procedure Act, to permit the plaintiff on a ninth occasion, over a period of four and a half years, to once again be permitted to amend its Statement of Claim in a substantive way. 64To add a new cause of action 14 years after it is said to have arisen involving the defendant being vicariously liable for the conduct of five separate police officers, some of whom no longer work in the police force, would be oppressive. As well, this ninth attempt to add a cause of action which had previously been abandoned on the advice of senior counsel, does not suggest that the plaintiffs have addressed their obligations under the Civil Procedure Act, nor does it suggest that the plaintiffs have any extenuating circumstances of a kind which would support an exercise of discretion in their favour. 65In all of those circumstances, I would refuse leave to make the amendment proposed to add a discrete cause of action whereby the second, fourth and fifth plaintiffs claim damages for wrongful arrest and false imprisonment arising out of the events of April 1998.

Paragraphs 28-33 66The defendants submit, in substance, that the proposed paragraphs 28, 31 and 33, understood in their context, suggest that the plaintiffs are attempting to rely, contrary to logic, on events occurring later in the point of time to indicate a want of reasonable and probable cause at an earlier point in time. 67In these paragraphs the plaintiffs allege that the institution of the prosecution against them, and its maintenance constituted the relevant tort. 68Paragraph 31 is in the following terms: "The five plaintiffs plead having regard to the material facts ... the informants and ... the prosecutor, were involved in a joint criminal investigation of prosecution were actively instrumental in instigating and maintaining prosecutions of the plaintiffs in circumstances where there was an absence of reasonable and probable cause in that the 'prosecutors' did not hold and honest belief in the guilt if the five plaintiffs or alternatively did not have a proper case based on general grounds of justice to advance against them." 69In submissions, counsel for the plaintiffs made it plain that he was not seeking to rely upon later events to justify a finding that at an earlier point in time there was no reasonable or probable cause. 70Considerable discussion took place, which is recorded in the transcript, of the hearing of the motion. It is unnecessary to attempt to summarise that discussion. 71In large part, it transpired that the defendant's concern was to have identified any fact or circumstance which caused the informants or prosecutors to be in a position of not being able to form the requisite belief at or after any point in time. 72As the counsel for the plaintiffs submitted, the individual facts, matters and circumstances set out in paragraph 30 are all of the matters upon which the plaintiffs rely, it seems to me that there is no basis upon which to refuse the amendments which are sought to be made in these paragraphs. 73It is open to the defendant to seek particulars. If the particulars provided are inadequate, it is open to the defendant to seek appropriate orders from the Court. 74I would not uphold the defendant's objection to these paragraphs, and I would permit the amendment contained in these paragraphs.

Paragraph 36(g)-(j) 75The defendant submits that these subparagraphs are in their terms, incapable of sustaining a finding of misconduct as they suggest. 76It is appropriate to set out these particulars. Paragraph 36 is headed "Further Particulars of Malice are as follows: ... (g)the 'informants' interfered with evidence with the motivation of achieving a prosecution at any cost. The informants with relevant referencing are: Constable Robert McClennan 27(xxvi) to (xxix) and Constable Shannon White 27(xxxvi) to (xxix). (h)the 'informants' pressured witnesses with the motivation of achieving a prosecution at any cost. The 'informants' with the relevant referencing are Constable Robert McClennan 27 (xxxvi) to (xxxix) and Shannon White 27 (xxxvi) to (xxxix). (i)The 'informants' and 'prosecutors' relied upon witnesses who were unreliable with the motivation of achieving a prosecution at any cost. Reference to 'informants' and 'prosecutors' includes all 'informants' and 'prosecutors' identified for 3rd Cause of Action. (j)The 'informants' relied upon witnesses who offered and motivated inducements provided by the informants. The informants with the relevant referencing are Constable Robert McClennan 27(x), 30(xl)-(xli) and 32(i)-(v), (lvii-lxi), Constable Shannon White 30 (xiii)-(xv) and 32(lvii)-(lxi). 77The plaintiffs submit that these matters are proper particulars of malice on the part of identified individuals. 78It is clear that, in the circumstances of this case, the plaintiffs seek to prove malice on the part of the relevant police officers and prosecutors, by inference from their conduct. 79As is apparent from the pleadings, which may be criticised for being unduly cumbersome, the plaintiffs are calling attention to specific conduct of the identified officers as being indicative of facts from which malice can be drawn. 80Although, as I have said, the pleading may be a little cumbersome, it is nevertheless sufficient in my opinion, as particulars of malice, either alone or in combination with the other particulars, to give rise to the inference, assuming the facts set out in the particulars are proved at trial, of the kind which the plaintiff seeks. 81I would reject the defendant's argument, and allow these amendments.

Paragraph 38 82The defendant objected to paragraph 38 because it submitted that there may be a deficiency in the pleadings of material fact, for example, the lack of pleadings of an alibi defence, or lack of opportunity defence. 83The plaintiffs rely upon the decision of Davies J in Beckett v The State of NSW (No.1) [2011] NSWSC 818; (2011) 210 A Crim R 105, as authority for the proposition that the second plaintiff is obliged to prove, to the requisite onus, that he did not commit the crime for which he was charged and was therefore innocent. 84The material pleaded in paragraph 38 seems to me to set out the entirety of the material facts relied upon by the second plaintiff to demonstrate his innocence. 85In those circumstances, I would not uphold the defendant's objection, and I would allow this amendment.

Summary 86In summary, I would grant leave to the plaintiff to file this ninth proposed Statement of Claim. However, I would not be prepared to grant leave to allow the plaintiff to plead within it paragraphs 7 to 19 inclusive which raise as a distinct cause of action, a pleading that the second, fourth and fifth plaintiffs were entitled to damages by reason of wrongful arrest and false imprisonment for events which occurred in 1998. 87Parties should bring in short minutes of order which make provision for an appropriate timetable for further pleadings, and if agreed, for costs. If costs are not agreed, the parties should be prepared to argue that question when the matter is next before the Court.

Orders 88I make the following orders: (1)Grant leave to the plaintiffs to file and serve a further amended statement of claim in a form which reflects these reasons. (2)Parties to provide short minutes of orders. (3)Stand proceedings over to 9.30am on 31 August 2012.

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: 17 August 2012