TALLOTT -v- THE STATE OF WESTERN AUSTRALIA [2025] WASC 314 (6 August 2025)

1. As required, the application is supported by an affidavit apparently sworn by the applicant on 12 June 2024 (but entitled with a heading to the effect that it was sworn on 12 June 2025). The applicant also lodged a Minute of Proposed Writ of Summons and a Minute of Particulars of Proposed Statement of Claim.

1. As is acknowledged in the application, CIV 2283 of 2014 was discontinued on 17 February 2015. An order was made to that effect by consent by a registrar of this court on that date.
2. In CIV 2283 of 2014, the applicant sought orders for damages for assault, battery, wrongful arrest and false imprisonment, arising out of an incident which allegedly occurred on 11 March 2012. He also sought an injunction 'restraining the State or it's [sic] officers carrying out an operation aforesaid in the nature that it was done'.
3. In his application and supporting affidavit, the applicant refers to things said in the course of the mediation which took place in CIV 2283 of 2014 prior to the discontinuance of the matter. However, pursuant to s 71 of the Supreme Court Act 1935 (WA), anything said or done in the course of a mediation is to be taken to be in confidence and is not admissible in these proceedings. Accordingly, I have not taken the applicant's references to things said in the mediation into account.
4. The applicant contends that the WA Police and 'Local Government' have 'colluded as a team again' and claims that he wishes to enliven the case to:

(a) show the Police that he is a man of his word;

(b) help him get out of debt and get his van registered; and

(c) send a message to Police to 'not carry out functions on behalf [sic] or teamed up with rangers against me.'

1. Taken at their highest, neither the application nor the supporting affidavit provides any arguable basis for 'reopening' a matter which was discontinued more than 11 years ago. Accordingly, I refuse the application to reopen CIV 2283 of 2014.

1. As for the application to file the proposed writ of summons and indorsed statement of claim, and the proposed further particulars, the conduct alleged to form the basis of the proceedings is said to have taken place after 20 February 2022 and concluded, at the latest, on 13 April 2022, when charges commenced against him were discontinued.
2. The applicant's cause of action is said to be false imprisonment, arising out of his arrest on 22 February 2022, as a result of which he claims he also suffered humiliation and interference with his right to political communication.
3. He also alleges misfeasance in public office on the part of the then Premier of the State of Western Australia, by:

(a) 'directing the Chief of Police ... to arrest and move on protesters';

(b) '[u]sing the police force as his personal guard and army'; and

(c) '[c]rossing the line from his office in the legislative/executive functions power, to issuing unlawful executive orders not associated with his office, and without Statutory authority',

as a result of which the applicant 'suffered detriment, false arrest, and trespass to his person'.

1. At no point in the documents has the applicant stated the basis upon which he was said to have been arrested, although there is some suggestion he was told he was going to be arrested for failing to move on in accordance with a direction to do so. He alleges that the way in which he was arrested was 'disturbing, non democratic [sic], draconian and totalitarian in its essence'.
2. Further, the particulars of the impugned alleged direction of the Premier are that the Premier had been quoted in an article in The West Australian newspaper as saying he was going to 'tell the police to go down there and make sure the Plaintiff and ORS [sic] were not doing anything unlawful'.
3. I have carefully read the applicant's written submissions in support of his application.

1. The rule in O 67 r 5 reinforces the inherent power of the court to protect itself from unwarranted wastage of time and resources and to avoid the loss caused to those who have to face actions which lack any substance.[1] Proceedings will constitute an abuse of process if they are clearly foredoomed to fail.[2]
2. In The State of Western Australia v Cunningham [No 3],[3] Buss P and Murphy JA observed:

The action for false imprisonment protects the interest in freedom from physical restraint and coercion against the wrong of intentionally and without lawful justification subjecting another to a total restraint of movement by either causing that person's confinement or preventing that person from leaving the place in which he or she is. The elements of the tort require proof by the plaintiff of a restraint imposed by the defendant which amounts to imprisonment. Upon proof of such imprisonment, the defendant, to escape liability, needs to establish legal justification. The restraint must be upon a person's liberty to come and go, and must be against his or her will. The factual essence of the cause of action is the placing of a total restraint on the plaintiff's movement. Although false imprisonment is a species of trespass to the person, it need not involve the use of actual force or direct physical contact. Any restraint upon a person's will so great as to induce the plaintiff to submit, may be an arrest 'without imposition of hands'. In this species of trespass, words such as 'I arrest you' are sufficient. An identification of the period of false imprisonment is necessary to determine the nature and extent of the wrong suffered by the plaintiff, and the damage sustained by reason of the false imprisonment.

Unlike in relation to the tort of negligence, actual damage or injury is not a necessary element in the torts of battery and false imprisonment - where violation of the person's dignitary interest is sufficient to warrant redress.

The action for misfeasance in public office aims to prevent public officials from maliciously abusing their power. In [Northern Territory of Australia v Mengel [1995] HCA 65; (1995) 185 CLR 307], Mason CJ, Dawson, Toohey, Gaudron and McHugh JJ accepted that the tort of misfeasance in public office is committed where damage is suffered as a result of an act done by a public officer, where the public officer knows the act is done beyond power and involves a foreseeable risk of harm. Their Honours added that there was 'much to be said for the view that ... misfeasance in public office is not confined to actual knowledge but extends to the situation in which a public officer recklessly disregards the means of ascertaining the extent of his or her power'. Brennan and Deane JJ said, in effect, that the mental element in the tort is satisfied where the public officer engages in the impugned conduct with the intention of inflicting injury, or with knowledge that there is no power to engage in that conduct and that it is calculated to produce injury, or where the public officer acts with reckless indifference as to the existence of power.

1. Having regard to the elements of the tort of false imprisonment, I am satisfied that the matters stated in the proposed writ and particulars disclose a cause of action. The applicant will need to address the fact that he cannot indorse the statement of claim on the writ, as a result of O 6 r 3 of the RSC.
2. I note that, pursuant to s 16 of the Limitation Act 2005 (WA), actions for trespass to the person and imprisonment are subject to a limitation period of three years, although there is a qualification to that provision. That is not addressed in the documents lodged by the applicant. However, I am cognisant of the general principle that it is undesirable for an issue of limitation to be determined without a substantive hearing, except in a very clear case.[4] I am not satisfied that the applicant should be prevented from having leave in respect of the allegation of false imprisonment on that basis.
3. As to the claim of misfeasance in public office, I am not satisfied that the applicant has asserted any fact which could support such a cause of action. The then Premier is alleged to have done no more than tell a journalist that he intended to tell the police to check that the law was not being broken. Apart from the fact that the allegation does not even extend to an assertion that the then Premier actually did tell the police any such thing, it could not in any event be misfeasance in public office for the police to be told to perform one of their functions.
4. Accordingly, without making any judgment as to the merits of the applicant's proposed case, and without commenting on the applicant's assertions as to the strength of his case, I grant the applicant limited leave, namely, to issue a writ claiming false imprisonment only.
5. Without seeing the applicant's claim in full, it is not appropriate to limit the applicant to commencing his action against one or other of the proposed defendants, but I note the provisions of s 137 of the Police Act 1892 (WA).
6. The applicant will need to draft a separate statement of claim in relation to his cause of action, and will need to clearly set out the material facts on which his claim is based. He will then be subject to the ordinary procedures of the court.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

[1] Jones v Skyring [1992] HCA 39; (1992) 109 ALR 303, 312; Re City of Stirling; Ex Parte Tallott [2012] WASC 33 [7] (Tallott).

[2] Walton v Gardiner [1993] HCA 77; (1993) 177 CLR 378, 393; Tallott [7].

[3] The State of Western Australia v Cunningham [No 3] [2018] WASCA 207 [149] - [151].

[4] Wardley Australia Ltd v Western Australia [1992] HCA 55; (1992) 175 CLR 514; Belgravia Nominees Pty Ltd v Lowe Pty Ltd [2017] WASCA 127; (2017) 51 WAR 341.