Court of Appeal (WA)|2017-10-24|Before: Murphy JA

THE STATE OF WESTERN AUSTRALIA -v- CUNNINGHAM [No 2] [2017] WASCA 197 (24 October 2017)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : THE STATE OF WESTERN AUSTRALIA -v- CUNNINGHAM [No 2] [2017] WASCA 197

Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Citation : CUNNINGHAM -v- TRAYNOR [2016] WADC 168

Practice and procedure - Appellate - Application to amend grounds of cross-appeal by adding further grounds - Principles in relation to amendments to grounds of appeal - Substantial overlap between proposed amended grounds of cross-appeal and other appeal involving the same parties - Application made in circumstances where the other appeal had since been dismissed pursuant to a springing order - Whether the court should permit proposed amended grounds of cross-appeal to be added to existing grounds of cross-appeal in those circumstances - Principles in relation to abuse of process - Whether application to amend involves an abuse of process

Fourth Respondent : Mr A T Schlicht & Ms K A Vernon

A v C [No 2] [2015] WASCA 199

Cunningham v Traynor [2016] WADC 168

Frigger v Lean [No 2] [2016] WASCA 212

Hightime Investments Pty Ltd v Lungan [No 2] [2010] WASC 296

Sheraz Pty Ltd v Vegas Enterprises Pty Ltd [2015] WASCA 4; (2015) 48 WAR 93

Sino Iron Pty Ltd v Mineralogy Pty Ltd [2014] WASC 406

The State of Western Australia v Cunningham [2017] WASCA 119

Traynor v Cunningham [2017] WASCA 125

Traynor v Cunningham [No 2] [2017] WASCA 159

1 REASONS OF THE COURT: On 20 October 2017, we heard an application by the third, fourth and fifth respondents (Officer Traynor, Officer Clark and Mr Caldwell) for leave to amend their grounds of cross-appeal in CACV 11 of 2017. Whilst recognising that Mr Caldwell is no longer a police officer, for present purposes and ease of exposition, it is convenient to refer to Officers Traynor and Clark, and Mr Caldwell, as 'police officers'.

2 In broad terms, the general background to this matter is as follows.

3 Judge Davis delivered her reasons in Cunningham v Traynor[1] on 9 December 2016 (primary decision). That decision determined various claims in tort by Dr Cunningham and Ms Atoms against the police officers and the appellant herein (the State). Dr Cunningham and Ms Atoms claimed, in effect, that they were wrongfully detained, arrested and tasered in November 2008, and were subsequently the subject of a malicious prosecution. Judge Davis found in favour of Dr Cunningham and Ms Atoms. Her Honour found, in effect, that Dr Cunningham and Ms Atoms should never have been detained, arrested or tasered, and that they should never have been charged with the offence of obstructing a public officer in the performance of the officer's functions. Her Honour also made findings to the effect that the police officers acted with malice.

4 Her Honour assessed damages at approximately $1.1 million. She subsequently entered judgment on 15 December 2016 in that sum. The amounts ordered against each of the defendants to the primary proceedings were as follows:

The State: A total of $1,113,526.21, comprised of $119,704.10 owed jointly with all police officers and $993,822.11 owed jointly with Officer Clark and Mr Caldwell.
Officer Traynor: A total of $140,704.10, comprised of $119,704.10 owed jointly with all other defendants, $20,000 owed jointly with the other police officers and $1,000 owed individually.
Officer Clark: A total of $1,134,126.21, comprised of $119,704.10 owed jointly with all other defendants, $20,000 owed jointly with the other police officers, $993,822.11 owed jointly with Mr Caldwell and the State and $600 owed individually.
Mr Caldwell: A total of $1,133,526.21, comprised of $119,704.10 owed jointly with all other defendants, $20,000 owed jointly with the other police officers and $993,822.11 owed jointly with Officer Clark and the State.

5 Two appeal proceedings were commenced against the primary decision, namely this appeal (CACV 11 or the 'State Appeal'), commenced by the State, and CACV 10 of 2017 (CACV 10 or the 'Police Appeal'), commenced by the police officers.

6 The State Appeal raises, in substance, a confined question of law. That is whether the judge erred in finding the State jointly liable with the police officers in circumstances where her Honour found that the police officers had acted with malice. The State contends that s 137(5) of the Police Act 1892 (WA) precludes that result. There is no challenge by the State to any of the judge's findings of fact. The State applied for, and was granted, a partial stay of the judgment sum.[2]

7 The Police Appeal, on the other hand, contained a wide-ranging attack on the judge's findings of fact. That appeal has been dismissed following a failure by the police officers to provide security for the costs of Dr Cunningham and Ms Atoms as ordered on 13 July 2017.

8 The police officers also cross-appealed in the State Appeal. There have been two filed versions of the police officers' cross-appeal in the State Appeal. The present application, in substance, concerned an application to re-amend the grounds of cross-appeal in the State Appeal. The proposed amended grounds canvass, to a considerable extent, the matters canvassed in the grounds in the Police Appeal (which has since been dismissed), and involve an extensive challenge to the judge's findings of fact.

9 At the conclusion of the hearing on 20 October 2017, we made orders in the terms of [66] below and said we would provide written reasons for our decision. These are our reasons.

10 It is convenient to outline the course which the appeals have taken to date.

By way of their respondents' notice dated 6 February 2017, the police officers indicated that they were cross-appealing in the State Appeal.
On 10 March 2017, following receipt of the appellant's (State's) case, the respondents were put on notice that they were required to file and serve their respondents' answer in the State Appeal by 31 March 2017.
On 31 March 2017, Dr Cunningham and Ms Atoms filed and served their respondents' answer;
The police officers failed to file and serve their respondents' answer by 31 March 2017.
On 3 May 2017, the police officers filed an application for an extension of time to file their respondents' answer.
On 12 May 2017, Mitchell JA ordered that the time for the police officers to file and serve their respondents' answer in the State Appeal be extended to 19 May 2017.
On 19 May 2017, the police officers filed a document entitled 'Third, Fourth and Fifth Respondents' Case', which included three grounds of cross-appeal (original cross-appeal).

On 8 June 2017, Mitchell JA heard an application by Dr Cunningham and Ms Atoms that the police officers provide security for costs in the Police Appeal (security for costs application).
Shortly before that hearing, the police officers provided an unsigned draft of the appellants' case in that appeal.
The final version of that document was filed later that day on 8 June 2017.[3]

13 In the State Appeal, on 29 June 2017, the Court of Appeal Registrar ordered that the police officers file and serve an amended respondents' answer and an amended respondents' case in the cross-appeal by 13 July 2017. The associate to the Court of Appeal Registrar also wrote to the police officers, pointing out that Mitchell JA's order of 12 May 2017 only referred to the filing of a respondents' answer, and that the document filed by the police officers on 19 May 2017 purported to be both the respondents' answer and respondents' case on the cross-appeal. The letter indicated that this was not permitted by the Supreme Court (Court of Appeal) Rules 2005 (WA) (Court of Appeal Rules). The letter continued:

Accordingly, the [police officers] must file and serve, as separate documents, an amended respondents' answer and an amended respondents' case on the cross-appeal. The Registrar has accordingly extended the time for the filing and service of the respondents' answer and the respondents' case on the cross-appeal [in the State Appeal] to 13 July 2017.

14 In the Police Appeal, on 13 July 2017, following receipt of further written submissions, Mitchell JA delivered judgment on the security for costs application. He allowed the application for security and determined that the police officers should provide security for the Police Appeal in the sum of $90,000.[4] Following the delivery of reasons, the parties agreed orders to the effect that the police officers were to provide security for costs of $90,000 by 23 August 2017, and that if security were not provided by that date, or the Police Appeal was not discontinued by that date, then that appeal should stand dismissed. Counsel for the police officers also sought an order for liberty to apply on the basis that 'there might be some issues in relation to the security for costs order which [the police officers] would want to bring on at short notice if time was running out'.[5] Justice Mitchell made orders accordingly.

15 In the Police Appeal, on 20 July 2017, the police officers filed an application for a review of the security for costs decision (review application).

16 In the State Appeal, on 21 July 2017, the police officers filed two documents. One was an amended respondents' answer. The other purported to be the amended respondents' cross-appeal (amended cross-appeal).[6]

17 The amended cross-appeal in the State Appeal contained 25 grounds of appeal. They effectively included the same three grounds of appeal as were contained in the original cross-appeal, but added a further 22 grounds of appeal. Twenty-one of these grounds were new, and one (presumably in error) was, in effect, a further repetition of one of the three original grounds in the original cross-appeal.

18 The grounds in the amended cross-appeal were, apart from renumbering, identical, or virtually identical in substance, to the police officers' grounds in the Police Appeal. A comparison between the two is set out in sch 1 to these reasons.

19 In the State Appeal, on 25 July 2017, the associate to the Court of Appeal Registrar wrote to the police officers, and noted the following concerns of the Registrar with respect to the documents filed by the police officers on 21 July 2017:

The Registrar granted the third, fourth and fifth respondents leave to file an amended respondents' answer and case on the cross appeal by 13 July 2017 in order to regularise the form of the documents, as set out in our letter dated 29 June 2017. It was not the Registrar's intention, nor was it contemplated, that the third, fourth and fifth respondents would make substantial amendments to the content of the documents to be filed.

The third, fourth and fifth respondents have, however, not just separated out the documents as required, but have now included an additional 22 grounds of appeal in the cross appeal. Further, it is unclear why these additional grounds have been included, as they appear to reflect the same grounds raised in CACV 10 of 2017, and would appear to be unnecessary duplication.

The Appeals in CACV 10 of 2017 and CACV 11 of 2017 are not consolidated, and it is not appropriate to seek to include submissions from one appeal in the other, as is purported to be done in paragraph 33 of the submissions in CACV 11 of 2017. In any event, even if such an approach were permitted, the incorporation would breach the rule in regard to page limits, as the combined submissions would exceed 20 pages.

In addition, the numbering of the grounds of appeal and submissions in CACV 10 of 2017 and CACV 11 of 2017 are not identical. Simply referring in CACV 11 of 2017 to paragraphs 1 to 168 in the submissions of CACV 10 of 2017, which relate to different numbered grounds of appeal, is confusing.

The new grounds of appeal raise errors of fact and law. Accordingly, the third, fourth and fifth respondents would need to comply with Practice Direction 7.4.
There may also be a question as to how the new grounds, which overlap with the other appeal, operate in connexion with the security for costs ordered in the other appeal (subject of course to the review application).

20 In this context, on 26 July 2017, the State Appeal was listed for directions before the court on 18 August 2017. On that occasion, counsel for the police officers applied to uplift the amended cross-appellants' case in the State Appeal. Counsel said in effect that the police officers were formulating an amendment to the cross-appeal in the State Appeal and proposed that the documents be taken off the court's file 'so [that the court and the parties] didn't have to bother with having a set of documents floating around that might some day confuse someone'.[7] There was no opposition to the application to uplift the police officers' documents in the State Appeal and, accordingly, on 18 August 2017, Murphy and Beech JJA made orders in the State Appeal that:

[The police officers] be permitted to uplift the amended cross-appellants' case filed on 13 and 21 July 2017 forthwith.
[The police officers] file an application for leave to amend the grounds of cross-appeal within 7 days, together with a minute of proposed grounds of appeal and outline of submissions in support of the application.

21 Also, on 18 August 2017, in the Police Appeal, Murphy and Beech JJA heard the review application.

22 In the Police Appeal, on 23 August 2017, Murphy and Beech JJA delivered judgment dismissing the review application: Traynor v Cunningham [No 2][8] (review decision). In the review decision, the court observed:[9]

The appellants applied to adduce additional evidence ... namely affidavits of Arthur Metaxas, the appellants' solicitor, and of Michael Craig Kelly, a Director of the Police Union, both sworn on 17 August 2017, and a letter dated 18 August 2017 from the Police Union to the appellants' solicitors. The respondents object to this material on grounds of lateness. They also object to par 7 of Mr Kelly's affidavit on the basis that it is inadmissible. It is not necessary to determine the application and the objections. The appellants adduce the evidence in order to establish that, following a request made on 20 July 2017 after the security for costs decision, the Police Union has made a decision not to provide the security for costs ordered against the appellants. This review can be determined on the basis of an assumption, favourable to the appellants, to that effect. (footnote omitted) (emphasis added)

23 On 23 August 2017, immediately following the delivery of the review decision, counsel for the police officers informed the court that the police officers wished to make an application to vary the orders of Mitchell JA so as to extend by 48 hours the time by which security for costs was to be provided.[10] The court on that occasion directed the police officers to file a written application to vary Mitchell JA's orders, together with an affidavit in support, and directed that the application be heard at 2.15 pm that day.

24 At or about 1.00 pm on 23 August 2017, the police officers' solicitors informed the court that the police officers were not proceeding with the application for an extension of the time in which to provide security for costs.

25 The police officers failed to pay security into court by 23 August 2017 or discontinue the Police Appeal by that date and, accordingly, the Police Appeal was dismissed.

The police officers' application to amend the grounds of cross-appeal in the State Appeal and the evidence on that application

27 On 25 August 2017, the police officers filed in the State Appeal the present application for leave to amend the grounds of cross-appeal (application for leave to amend). Procedural directions were made for the filing and serving of affidavits and submissions, including for submissions in reply by the police officers.

28 The police officers filed a minute of proposed amended grounds of cross-appeal, an affidavit sworn by Mr Arthur Metaxas on 25 August 2017, and submissions in support of the application. The minute effectively introduced three new grounds with various paragraphs and numerous subparagraphs, as well as replicating the three grounds that appeared in the original cross-appeal. On 19 October 2017, the police officers provided an amended minute which deleted a repeated paragraph in proposed ground 3, but otherwise the effect of the minute was the same.

29 In support of the application, Mr Metaxas deposed, relevantly:

In this appeal the [State] challenges the findings that the [State] was jointly liable with the [police officers] for damages awarded in circumstances where

(a) the learned trial Judge found that the [police officers] acted with malice; and

(b) section 137(5) of the Police Act provided that the [State] was liable for torts committed without malice.

The [police officers'] cross appeal must include the grounds upon which they challenge to [sic] the findings that each of them acted with malice, particularly since CACV 10 of 2017 [the Police Appeal] will not now proceed.

30 In opposition to the application for leave to amend, Dr Cunningham and Ms Atoms relied on their earlier affidavits sworn 18 May 2017.[11] Dr Cunningham, in his affidavit of 18 May 2017, said, amongst other things:

The events the subject of the District Court trial below, and in this appeal, have caused me considerable stress. The matter has been the subject of either criminal prosecution or ongoing civil litigation since 2 November 2008. Almost every day for the past 8.5 years my wife the Second Respondent and I have been required to interact with it.

I am very sad and disappointed that after five months since the District Court judgment was handed down, there is still no clarity from the Appellants as to the precise grounds of their appeal.
While I would prefer to progress my life, I am not able to put this matter behind me and move on while this appeal remains on foot.

In paragraph 1076 of the judgment Her Honour Judge Davis states that 'Ms Atoms' psychiatric injuries have also had a significant effect on her. She has suffered severe and chronic PTSD, symptoms of which still persist. With the resolution of these proceedings, time and also treatment, she may achieve some improvement in her residual symptoms, however, there is the real risk of an increase in symptoms from time to time in the future, triggered by stressful events in her life and any future back problems.' This appeal is a very stressful matter which is being prolonged by the Appellants' delays.
Every time I am required to think about this matter I become distressed to the point where I feel so nervous that there is nothing I can do to calm down.
When I find myself having to think about this matter, I feel hopeless, depressed, and doing anything takes a lot more effort. It becomes more difficult to try and accomplish goals I have set out with my health professionals in my recovery plan.
The string of requests and delays of the Appellants in this appeal have a deleterious impact on my health since I am still unable to put this matter behind me and focus on moving on.

The parties' submissions in relation to the police officers' application to amend the cross-appeal in the State Appeal The police officers

32 By written submissions dated 25 August 2017 in support of the application, the police officers submit that the trial judge's findings of malice against them are directly relevant to the State's appeal. They say that the Police Appeal had included challenges to the findings of malice, and had that appeal continued, all parties agreed that it would have been heard together with the State Appeal. In these circumstances, they submit that leave to amend the grounds of cross-appeal in the State Appeal should be granted for six reasons. Those reasons are to the following effect:

Given that the Police Appeal has been dismissed without being heard or determined, it is appropriate that the challenges to the findings of malice should now be included as grounds of cross-appeal in the State Appeal.
The police officers ought not be shut out from the opportunity to challenge the State's appeal based on the findings of malice, since those are the findings the State relies upon to argue an absence of liability.
As a general proposition, a party should be permitted to amend so that the court may decide all matters arising in issue between the parties, unless the amendment would cause an injustice to the other party which could not be adequately remedied by, for example, an order for costs.
The State Appeal is not advanced, and the State has not filed any answer to the original grounds of cross-appeal and will have an opportunity to file a response to the new grounds.
If the grounds of cross-appeal do not correctly reflect the case which a party wishes to present at trial, it is essential that they be amended because, in general, a party will be confined to their grounds of appeal.
The amendments serve the purpose of determining the real questions in controversy between the parties to the appeal.

33 In oral submissions, counsel for the police officers also referred to, and sought to rely upon, this court's decision in Brocx v Hughes.[12] That was a case in which a plaintiff's action was struck out as an abuse of process after an earlier indistinguishable action had been dismissed for non-compliance with a springing order. Counsel referred to certain passages[13] in the judgment of Newnes JA and placed particular reliance on the following:[14]

Each case must, of course, depend upon its own circumstances. But, in my view, where an action has been dismissed by reason of the failure of a party to comply with a springing order in circumstances where that party's conduct was contumacious, a second action by that party to enforce the same claim will generally be an abuse of process. I do not, however, consider that the fact an action was dismissed for failure to comply with a springing order establishes, of itself, that the conduct of the party in default was contumacious.

34 Counsel for the police officers submitted, with reference to the above passage, that the police officers' non-compliance with the springing order of 13 July 2017 was not contumacious.

35 Also in oral submissions the police officers contended that the 'efficient' course would be to allow them to amend, and then Dr Cunningham and Ms Atoms could, if so advised, bring an application for security for costs in the State Appeal which could be determined on its merits in due course.

36 The police officers were ordered to file and serve any written submissions in reply on or before 19 September 2017. On 11 October 2017, after inquiry from the Court of Appeal Registrar, the solicitors for the police officers informed the court that they would not be filing further submissions. Despite this, in oral submissions at the hearing on 20 October 2017, counsel for the police officers sought to contend, by way of reply to the State's submissions as to the evidentiary scope of the cross-appeal if leave were granted (see [39] below), that the scope of the material would be relatively limited and would not be as great as the State had contended in its submissions. In this regard, counsel referred to the police officers' schedule which had been prepared pursuant to Practice Direction 7.4 in the Police Appeal.

37 On 12 September 2017, the State and Dr Cunningham and Ms Atoms filed submissions opposing the application for leave to amend.

38 The State submits that the three proposed amended grounds of cross-appeal in the State Appeal substantially reflect grounds 8, 12 and 16 of the grounds in the Police Appeal, and incorporate, by full or partial replication, grounds 3, 4, 5, 6, 10 and 13 of the grounds in that appeal. It is submitted, in effect, that granting leave to introduce the additional grounds in the proposed amended grounds of cross-appeal would involve re-litigating matters that formed part of the Police Appeal which has since been dismissed.

39 The State says that re-opening a substantive part of the Police Appeal, through a cross-appeal, constitutes a use of the court's procedure which would bring the administration of justice into disrepute and amounts to an abuse of process. Further, in light of the security for costs decision, which was affirmed in the review decision, it would impose unfairly burdensome requirements on the State and Dr Cunningham and Ms Atoms. In this context the State referred to the observations of Mitchell JA in the security for costs decision at [31], concerning the extensive scope of the evidence that would need to be considered on the appellant's case in the Police Appeal and submitted, in effect, that those observations have, in general terms, equal application to the scope of the cross-appeal if the police officers' application were granted. In this regard, it is said that it would be antithetical to the purpose of the order for security for costs to allow the police officers to continue a substantive part of the Police Appeal while bypassing the consequences of failing to comply with that order. These points were reiterated in oral submissions on behalf of the State.

40 Dr Cunningham and Ms Atoms also filed submissions on 12 September 2017. They say that the proposed amended grounds of cross-appeal in the State Appeal are substantially the same as the grounds raised in the Police Appeal, and that the proposed amended grounds of cross-appeal replicate, in substance, each of grounds 3, 4, 5, 6, 8, 10, 12, 13 and 16 of the grounds of the Police Appeal. It is submitted, amongst other things, that pursuit by the police officers of the same issues as those raised in in the Police Appeal, by amendment to their grounds of cross-appeal in the State Appeal, would be an abuse of process, and the effect would be to outflank the security for costs order in the Police Appeal.

41 Further, Dr Cunningham and Ms Atoms submit that, in any event, even if the court did not find that there was an abuse of process, the application for leave to amend should be refused on discretionary grounds.

42 In relation to the submissions concerning abuse of process and the refusal of leave on discretionary grounds, Dr Cunningham and Ms Atoms submit, in effect, that the grant of leave would be seriously and unfairly burdensome, prejudicial or damaging to them, for the following reasons:

the police officers have been guilty of substantial delays in the prosecution of the Police Appeal prior to its termination upon the failure to provide security for costs;
if leave were given, Dr Cunningham and Ms Atoms would need to seek security for costs of the amended cross-appeal, resulting in even further delays;
although the State Appeal is relatively confined, if leave were granted to amend the cross-appeal, there would be inevitable delays which would, in turn, delay the determination of the State Appeal;
there is affidavit evidence by Dr Cunningham and Ms Atoms of the distress caused by the absence of a final determination in the proceedings;
there is no evidence that the police officers could provide security for costs in respect of the amended cross-appeal; and
the police officers have not offered to give security as a condition for the grant of leave.

Principles - amendments and abuse of process Amendments to grounds of appeal

43 The court has power to amend any ground of appeal under pt 5 r 43 of the Court of Appeal Rules.

44 The Court of Appeal Rules are to be read with the Rules of the Supreme Court 1971 (WA) (RSC): pt 1 r 5 of the Court of Appeal Rules. The RSC include O 1 r 4A and O 1 r 4B. By O 1 r 4A, a goal of the Supreme Court practice and procedure is the elimination of delay. By O 1 r 4B, matters are to be managed with the objects of:

(a) promoting the just determination of litigation;

(b) the efficient disposition of the courts business;

(e) ensuring the procedure applicable and its costs to the parties and the State are proportionate to the value, importance and complexity of the subject matter; and

(f) that the procedure applicable and its costs to the parties are proportionate to the financial position of each party.

45 As Edelman J observed in Sino Iron Pty Ltd v Mineralogy Pty Ltd,[15] the second, third, fourth, fifth and sixth of those considerations are aspects of the first, ie, the just determination of litigation.

46 The exercise of the discretion to allow an application to amend grounds of appeal is also to be considered in the context of the amplitude of time allowed for the commencement of an appeal and the filing of an appellant's case. Under the Court of Appeal Rules, an appellant has 21 days after the date of decision[16] being appealed within which to commence an appeal,[17] and then has 35 days after the date on which an appeal notice is filed within which to file an appellant's case.[18]

47 In Hightime Investments Pty Ltd v Lungan [No 2],[19] Beech J (as his Honour then was) made a number of observations on the principles to be applied in relation to an application to amend pleadings in the General Division. Bearing in mind the matters referred to above, and with some adaptations, his Honour's observations provide some guidance to the approach to be taken in the exercise of the discretion in relation to an application to amend an appellant's case in a civil appeal:[20]

The effect of an amendment on the court and on other litigants is a relevant factor.
There is no right to amend to introduce an arguable ground of appeal and it is wrong to say that only in extreme circumstances would a party be shut out from amending to add an arguable ground.
While justice requires that parties have a proper opportunity to put their case, ordinarily that is achieved by proper compliance with the relatively generous time periods provided for under the Court of Appeal Rules.
A just resolution of an appeal does not mean that a party will always be permitted to raise any arguable ground at any point in the appeal process, on payment of costs, even indemnity costs.
The inevitable strains of litigation must be taken into account in weighing the adverse consequences of delay - this applies to natural persons and other litigants.
The nature and importance of an amendment of the grounds to the party amending must be taken into account.
Attention must be given to the extent of the delay, the costs associated with it, the prejudice which might reasonably be assumed to follow from it and any prejudice that is shown.
The point at which an application to amend is made, relative to the hearing of an appeal, may be an important consideration.
Where a discretion is sought to be exercised in favour of a party, an explanation will be called for.
The point can be reached where a party has had a sufficient opportunity to put its case.

48 The preceding observations are not intended to be exhaustive of the topic.

49 As this court noted in Sheraz Pty Ltd v Vegas Enterprises Pty Ltd,[21] what constitutes an abuse of process is incapable of being described exhaustively, but the High Court has stated that at least one of three characteristics will be apparent in many cases of abuse of process, namely:

a court's processes being invoked for an illegitimate or collateral purpose;
the use of a court's procedures being unjustifiably oppressive to a party; or
the use of a court's procedures bringing the administration of justice into disrepute.

50 The following propositions concerning the nature of abuse of process may also be identified from the reasons in Sheraz:[22]

Inherent or implied power exists to prevent misuse of the court's procedures in a manner which, although not inconsistent with the literal application of its procedural rules, would nevertheless be manifestly unfair to a party to litigation or would bring the administration of justice into disrepute among right-thinking people.
Abuse of process extends to proceedings that are seriously and unfairly burdensome, prejudicial or damaging or productive of serious and unjustified trouble and harassment.
Categories of abuse of process are not closed and the court may exercise its power as and when the administration of justice demands.
An abuse of process may arise where there are successive proceedings which are vexatious or unjustifiably oppressive, or which threaten the integrity of the administration of justice.
It would be a scandal to the administration of justice if a litigant were to be permitted by changing the form of the proceedings to set up the same case again in circumstances where the same question had previously been disposed of.
A court may invoke principles of an abuse of process to prevent attempts to litigate an issue which could and should have been litigated in earlier proceedings,[23] as well as to prevent attempts to re-litigate an issue which has, in substance, been litigated and determined in earlier proceedings.
The focus in applying the principles of abuse of process should be on matters of substance and not form.

51 At the outset, we accept that the police officers' proposed grounds are arguable, but we were not invited to, and would not, put it any higher than that. We also accept that the proposed grounds involve matters of significance to the police officers in both personal and financial terms.

52 Although the scope of the police officers' appeal would be somewhat more confined under the proposed amended grounds of cross-appeal than under the Police Appeal, there is nevertheless a substantial degree of overlap. In broad terms, the effect of the proposed amendments is as follows:

The proposed grounds expressly adopt the language of a number of grounds in the Police Appeal,[24] which other grounds in the Police Appeal also incorporated by reference.[25]
The proposed grounds do not expressly adopt grounds in the Police Appeal which contended that Dr Cunningham and Ms Atoms were credible, honest and reliable witnesses,[26] and that the trial judge erred in preferring their evidence to that of the police officers.[27] However, the proposed grounds maintain a challenge to the trial judge's credibility findings by contending that her Honour erred in making adverse credit findings against the police officers.[28] Further, grounds attacking the credibility of Dr Cunningham and Ms Atoms relied on CCTV footage of the events in question,[29] which is also relied on by the proposed grounds.[30]
The proposed grounds do not expressly adopt the language of certain sub-grounds in the Police Appeal,[31] which contend that the trial judge erred in finding certain facts relating to the interactions between Dr Cunningham, Ms Atoms and the police officers. However, the substance of those grounds is picked up by proposed grounds which contend that the trial judge erred in failing to make different factual findings.[32]
The proposed grounds do not expressly adopt the language of a ground in the Police Appeal,[33] contending that the trial judge ought to have found that Officers Clark and Traynor had reasonable grounds for suspecting that Dr Cunningham was obstructing them. However, the challenges to the trial judge's factual findings as to what Dr Cunningham did cover substantially the same territory.[34]
The proposed grounds do not expressly adopt the language of grounds in the Police Appeal contending that the trial judge erred in making findings about Mr Caldwell's state of mind when he tasered Dr Cunningham and Ms Atoms.[35] However, the proposed ground alleging that the trial judge erred in finding that Mr Caldwell acted with malice covers essentially the same territory.[36]
The proposed grounds do not contend that the trial judge erred in finding that words attributed to Ms Atoms by the police officers, if said, would not have constituted disorderly behaviour or a breach of the peace.[37]
The proposed grounds do not maintain challenges to the trial judge's findings as to the cause of Ms Atoms' injuries and her Honour's assessment of damages.[38] However, the ground in the Police Appeal which challenged the finding that Officer Clark's battery caused Ms Atoms' mental conditions relied substantially on alleged factual errors for which the proposed grounds still contend.[39]

53 In substance, only the 6th and 7th points identified above involve some reduction in the scope of the challenge advanced by the proposed grounds, as compared with the grounds in the Police Appeal. It remains the case that the proposed grounds make a broad-ranging challenge to the trial judge's findings of primary fact.

54 We do not accept the oral submission in reply made by counsel for the police officers referred to in [36] above. The proper time to make that submission, and give the other parties notice of the proposed reliance on the police officers' schedule in the Police Appeal, was in written submissions in reply. The point about the scope of the evidentiary material had been made expressly by the State, and elaborated upon, in its written submissions, but the police officers informed the court, in effect, that they would not be filing submissions in reply. In any event, we do not accept the substance of the police officers' argument, for two reasons. First, the police officers had estimated in their appellants' case in the Police Appeal that it would take two days to present their own case in oral argument in the Police Appeal. That estimate implies a fairly extensive examination of the trial material. Secondly, as we have indicated, the proposed grounds make a broad-ranging challenge to the trial judge's findings of primary fact which, in our view, would inevitably place a considerable burden on the other parties in reviewing the evidence at trial and responding to the challenges.

55 In substance, the police officers seek to run, via the cross-appeal in the State Appeal, much of the same case that they had advanced in their own appeal, ie, the Police Appeal, involving challenges to multiple findings of fact, with the resultant heavy burden on Dr Cunningham and Ms Atoms in terms of costs, in circumstances where:

the Police Appeal has stood as having been dismissed since 23 August 2017;
the dismissal was pursuant to a springing order made on 13 July 2017 in the context of substantial delays in the prosecution of the Police Appeal up to that point in time;
there had been no formal application by the police officers to extend the time for compliance with the orders of 13 July 2017 and, moreover, the police officers had informed the court that they were not proceeding with their foreshadowed application to that effect on 23 August 2017; and
security for Dr Cunningham's and Ms Atoms' costs has not been offered as a condition of the grant of leave, and there is, in any event, no evidence that they could provide security for costs.

56 Even though there has been no determination of their appeal on the merits, the proposed amendments to the cross-appeal, if granted, would serve to circumvent the orders made in the Police Appeal on 13 July 2017. The effect of those orders was that it was in the interests of justice that the police officers give security for costs by 23 August 2017. They have not done so, and nothing has changed which would suggest that those orders should be revisited.

57 The contention that it is 'efficient' for the police officers to be given leave to amend on the basis that Dr Cunningham and Ms Atoms could later apply for security, involves the proposition that Dr Cunningham and Ms Atoms should re-litigate the issue of security in relation to grounds of appeal which substantially cover the subject of their earlier successful application in the Police Appeal. In substance, it is an attempt by the police officers to put in issue, again, the requirement to give security.

58 The application for leave to amend is properly characterised as an attempt by the police officers to circumvent Mitchell JA's orders of 13 July 2017 requiring the provision of security for costs by 23 August 2017. To the extent that the police officers attempt to avoid the requirement for provision of security for costs, the attempt is doomed to fail. Had we been minded to grant the application for leave to amend, we would only have done so on condition that the police officers first provide security for costs in this appeal. However, the fact that the attempt to circumvent the requirement to provide security for costs is doomed to fail does not make the attempt to do so less of an abuse of process.

59 Further, to now grant the application for leave to amend on condition that security for costs be provided would circumvent the requirement in the Police Appeal that security be provided by 23 August 2017. Such an order would have the effect of extending the time for the police officers to provide security for costs without requiring the police officers to adduce evidence justifying the grant of an extension of time.

60 If the police officers desired to pursue the grounds in the Police Appeal, the appropriate course was for them to apply to extend the time for compliance with Mitchell JA's orders of 13 July 2017.[40] Such an application would need to have been supported by evidence as to why security was not provided by 23 August 2017, and of any changed circumstances which affected the police officers' ability to provide security. To the extent that grounds of appeal were no longer pursued, the police officers could have formally abandoned the grounds or amended their appellants' case to reduce the scope of the grounds. If the police officers sought to contend that any confinement of the grounds of appeal should lead to a reduction in the amount of security they were required to provide, they could also have applied to vary the orders with respect to the amount of security. To grant the application for leave to amend in this appeal, even on condition that security now be provided, would circumvent the requirement for the police officers to make and justify these applications in the Police Appeal, while significantly delaying the determination of this appeal.

61 The police officers have had ample opportunity, through their own appeal in the Police Appeal, to advance the case now sought to be made by the cross-appeal in the State Appeal. Further, the State's appellant's case was filed on 3 March 2017 and Dr Cunningham and Ms Atoms filed, on time, their respondents' answer by 31 March 2017. There have been substantial delays in the progress of the State Appeal since then which have effectively been due to the conduct of the police officers. Had it not been for those delays, there were real prospects that the State Appeal would have been heard before the end of this year. The grant of leave would inevitably add further delays to the proper determination of the State Appeal. Also, there is evidence that the ordinary strains of litigation are exacerbated in this case, particularly in relation to Ms Atoms, who has suffered psychiatric injury following the events the subject of the primary proceedings.[41]

62 In all the circumstances, granting the application for leave to amend would be unjustifiably oppressive and, or alternatively, manifestly unfair to Dr Cunningham and Ms Atoms, and would bring the administration of justice into disrepute. To allow the proposed amendments to the cross-appeal in the State Appeal would be to sanction an abuse of process.

63 The decision in Brocx does not assist the police officers. As the court there observed, and as we have indicated earlier, the categories of abuse are not closed. Contumacious behaviour is not a precondition to any finding that subsequent proceedings are an abuse of process. The suggestion (assuming it to be correct for present purposes) that the police officers' failure to comply with the springing order in the Police Appeal was not contumacious, fails to address the real point, which is that it is the attempted circumvention of the springing order which constitutes the abuse of process here. Rather than dealing with the springing order, and its consequences, directly, the police officers are effectively seeking to circumvent it, and thereby subvert it.

64 Further, even if it were not properly characterised as an abuse of process, we would still exercise our discretion to dismiss the police officers' application to amend in any event, having regard to the matters referred to earlier.

65 For these reasons we considered that the police officers' application to amend in terms of their minute of proposed amended grounds of cross-appeal should be dismissed, other than with respect to grounds 4, 5 and 6, which merely replicate the three grounds which were originally included in the original cross-appeal.

66 Accordingly, we made orders at the conclusion of the hearing on 20 October 2017 including the following:

Leave is given to amend the grounds of cross-appeal in terms of grounds 4 - 6 of the minute of proposed amended grounds of cross-appeal filed on 19 October 2017.
By 4.00 pm on 27 October 2017 the third, fourth and fifth respondents are to file and serve an amended appellants' case on the cross-appeal in accordance with the preceding order.
The application to amend is otherwise dismissed.

Amended cross-appeal in State Appeal (since uplifted)

Ground 1 - the judge erred in law at [303] in finding that Dr Cunningham was a credible, honest and reliable witness.

Ground 2 - the judge erred in law at [288] and [456] in finding that Ms Atoms was a credible and reliable witness whose evidence should be preferred.

Ground 3 - the judge erred in making various findings of fact from the CCTV footage.

Ground 4 - the judge erred in making various other findings of fact

Ground 5 - the judge erred in fact in failing to make various findings

Ground 6 - the judge erred in law at [325] in finding that Officer Traynor's evidence was unreliable and incredible

Ground 7 - the judge erred in fact and law at [499] in finding that Officer Traynor's detention of Ms Atoms was without reasonable grounds and was unlawful

Ground 8 - the judge erred in law in finding that Officer Traynor acted with malice when dealing with Ms Atoms and Dr Cunningham

Ground 9 - the judge erred in fact and law in finding that there was no justification for Dr Cunningham's arrest, and his arrest and battery was unlawful

Ground 10 - the judge erred in law in finding that Officer Clark's evidence was neither accurate nor reliable, and could not be accepted unless it was inherently probable or corroborated by other acceptable evidence

Ground 11 - the judge erred in fact and law at [589] in concluding that Officer Clark's pushing of Ms Atoms was not justified.

Ground 12 - the judge erred in fact and law at [807] - [810] in concluding that Officer Clark acted maliciously in instituting and maintaining the prosecution of Dr Cunningham and Ms Atoms

Ground 13 - the judge erred in law in finding that Mr Caldwell's evidence could not be relied upon unless it was inherently probable or confirmed by other acceptable evidence

Ground 14 - the judge erred in fact and law at [686] in finding that Mr Caldwell was not justified in tasering Ms Atoms

Ground 15 - the judge erred in fact and law at [715] in finding that Mr Caldwell was not justified in tasering Dr Cunningham

Ground 16 - the judge erred in fact and law in finding that Mr Caldwell acted with malice

Ground 17 - the judge erred in law in finding that Officer Clark's battery and Mr Caldwell's tasering of Ms Atoms materially contributed to Ms Atoms' back injury

Ground 18 - the judge erred in law in finding that Officer Clark's battery of Ms Atoms was a cause of Ms Atoms' mental conditions

Ground 19 - the judge erred in fact and law in assessing damages in favour of Ms Atoms

Ground 20 - the judge erred in law in awarding aggravated damages in favour of Dr Cunningham and Ms Atoms, and against Officer Traynor, Officer Clark and Mr Caldwell

Ground 21 - the judge erred in law in awarding exemplary damages in favour of Dr Cunningham and Ms Atoms, and against Officer Traynor, Officer Clark and Mr Caldwell

Ground 22 - the judge erred in law in entering judgment for Ms Atoms against Officer Clark for damages in the sum of $993,822.11

Ground 23 - the judge erred in law in entering judgment for Dr Cunningham jointly against all defendants in the sum of $99,704.10

Ground 24 - the judge erred in law in entering judgment for Ms Atoms against Officer Clark, Mr Caldwell and the State in the sum of $993,822.11

[1] Cunningham v Traynor [2016] WADC 168.

[2] The State of Western Australia v Cunningham [2017] WASCA 119.

[3] Traynor v Cunningham [2017] WASCA 125 [38] (security for costs decision).

[6] A copy of the amended cross-appeal was sent in for filing on 13 July 2017, but was not accepted on the file.

[8] Traynor v Cunningham [No 2] [2017] WASCA 159.

[11] First and second respondents' submissions, 12 September 2017, par 41. Those affidavits were sworn in the Police Appeal in relation to their application that the Police Appeal be dismissed, unless an appellant's case was filed and served within seven days, and in support of their application for security for costs.

[12] Brocx v Hughes [2010] WASCA 57; (2010) 41 WAR 84.

[13] Brocx [78] - [80], [96] - [98].

[15] Sino Iron Pty Ltd v Mineralogy Pty Ltd [2014] WASC 406 [32(xii)].

[16] Other than from an interlocutory decision.

[17] Part 5 r 26 of the Court of Appeal Rules.

[18] Part 5 r 32 of the Court of Appeal Rules.

[19] Hightime Investments Pty Ltd v Lungan [No 2] [2010] WASC 296.

[21] Sheraz Pty Ltd v Vegas Enterprises Pty Ltd [2015] WASCA 4; (2015) 48 WAR 93 [5] - [6], [118] - [119].

[22] Sheraz [8] - [20], [118] - [134], [151].

[23] See also Frigger v Lean [No 2] [2016] WASCA 212 [70].

[24] Grounds 3.1 - 3.2, 3.4 - 3.7, 4.3, 5, 6, 8, 10, 12.5 - 12.6, 13, 16.3 and 22 - 24 in the Police Appeal are effectively replicated.

[25] Grounds 7.2 - 7.4, 7.6, 9.2 - 9.4, 11.2 - 11.4, 12.2 - 12.4, 14.2, 14.4, 15.2, 16.1 in the Police Appeal incorporated by reference the grounds in the Police Appeal referred to in the previous footnote.

[26] Grounds 1 and 2 in the Police Appeal.

[27] Grounds 7.1, 9.1, 11.1, 12.1, 14.1 and 15.1 in the Police Appeal.

[28] Proposed grounds 1.3.1, 2.3 and 3.1 of the proposed grounds in this appeal, which substantially adopt grounds 6, 7.2, 8.1, 9.2, 10, 11.2, 12.2, 14.2 and 15.2 in the Police Appeal. Also, counsel for the police officers confirmed that credit matters were still in issue.

[29] Grounds 1.2, 1.4, 2.2 and 2.5 in the Police Appeal

[30] Proposed grounds 1.2, 1.3.1(a), 2.1 and 2.2.

[31] 4.1 - 4.2 and 4.4 - 4.8 in the Police Appeal.

[32] Proposed grounds 1.2.1, 1.2.3, 1.2.4, 1.2.7, 1.2.8, 2.2(a), 2.2(c), 2.2(d), 2.2(g), 2.2(h), 2.2(m) and 3.2(c), which substantially adopt grounds 5.1, 5.3, 5.4, 5.7, 5.8 and 5.14 in the Police Appeal.

[34] Proposed grounds 1.2.3 - 1.2.9 and 2.2(c) - 2.2(i), which substantially adopt grounds 5.3 - 5.9 in the Police Appeal.

[35] Grounds 14.5, 15.3 and 15.4 in the Police Appeal.

[38] Grounds 17 - 21 in the Police Appeal.

[39] Ground 18.1, 18.2 and 18.3.1 in the Police Appeal, which dealt with the finding of causation of Ms Atoms' mental condition, incorporated errors alleged by grounds 3.5 - 3.6, 5.10 - 5.11 and 11 (which itself incorporates errors alleged in grounds 3.5 - 3.7, 5.10 - 5.13 and 10) in the Police Appeal. The latter grounds are incorporated in the proposed grounds in the manner indicated above.

[40] As to which, see, for example, A v C [No 2] [2015] WASCA 199 [2] - [4].

[41] As noted earlier, there is no challenge in the proposed amended grounds of cross-appeal to the judge's finding that the police officers caused psychiatric injury to Ms Atoms.

Court (Court of Appeal) Rules 2005

THE STATE OF WESTERN AUSTRALIA -v- CUNNINGHAM [No 2] [2017] WASCA 197 (24 October 2017)

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THE STATE OF WESTERN AUSTRALIA -v- CUNNINGHAM [No 2] [2017] WASCA 197 (24 October 2017)

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