Vatarescu v The Commonwealth of Australia & the Australian Capital Territory [2008] ACTSC 57

5. The matter be stood over for further directions to the Registrar's list on 21 July 2008.

1. This is an application by both defendants that the statement of claim which accompanied the originating claim in this action be struck out. The action was commenced on 30 August 2007 by the plaintiff acting in person. He remains legally unrepresented.

2. In the originating claim, the plaintiff identified the causes of action as malicious prosecution; wrongful arrest and false imprisonment; and what he described as malicious or wrongful bail conditions of reporting to police.

3. The plaintiff named the defendants as "the Australian Federal Police (AFP)" and "the ACT Government". Both of these as it turns out, were incorrectly named, though I would not be critical of a litigant in person for either mistake. The Australian Federal Police was established as a statutory corporation under the Australian Federal Police Act 1979 (Cth) but the section constituting it as a legal entity in its own right has long since been repealed and the Australian Federal Police is now an instrumentality of the Commonwealth with no independent legal existence. Hence the correct first defendant is the Commonwealth of Australia.

4. Similarly, "the ACT Government" is not an entity known to the law. The correct second defendant is the Australian Capital Territory, which was established as a body politic under that name by section 7 of the Australian Capital Territory (Self-Government) Act 1988 (Cth).

5. These errors should have been corrected by amendment under Part 2.7 of the Court Procedures Rules 2006. As a matter of practicality, applications for amendment should have been made by each of the defendants. The defendants each filed a notice of intention to respond under Part 2.3 of the Rules. Rule 101 provides that such a notice must, if any particulars of the defendant stated in the originating process are incorrect, state the correct particulars. Where this is done, the rule provides that the court may amend the originating process accordingly. Parties should not expect that the Registrar will effect such an amendment of her own motion. A plaintiff served with such a notice may wish to be heard in relation to the proposed amendment. In circumstances of this kind, the defendant asserting that particulars are incorrect should apply to the court for the amendment. In a case such as the present one, where the action had been set down for a directions hearing before the Registrar immediately on filing of the notice of intention to respond, such an application could be made orally at the directions hearing, although it would be courteous to inform the other parties in advance by letter of the defendant's intention to make such an application. The title of the proceeding is amended only once the order for amendment has been made by the court, and does not follow simply from the filing of the notice of intention to respond.

6. In the present case I am satisfied that the amendments should be made, and I order that the name of the first defendant be amended for the purpose of all subsequent documents to the Commonwealth of Australia, and that the name of the second defendant be amended for all subsequent documents to the Australian Capital Territory.

7. Rule 406(1)(b) requires that a pleading contain a statement in summary form of the material facts on which the party relies but not the evidence by which the facts are to be proved. Rule 407(1) sets out a number of matters which must be specifically pleaded, including fraud or illegality; malice or ill will; and motive, intention or any other condition of mind, including knowledge or notice.

8. The plaintiff has pleaded his claim in the statement of claim as follows:

Compensation should be awarded for the malicious prosecution, wrongful arrest and false imprisonment to which the plaintiff has been subjected.

* *[time/ date/ place/ circumstances] of the claim:

1. Malicious prosecution based on a lack of investigation in 2003, and refusal to investigate in 2004, in the ACT;

2. Wrongful arrest outside the "Debacle" restaurant on Lonsdale Street in Braddon at 18.25 hours, and false imprisonment on Wednesday 17 December 2003 for 18 hours inside the Civic police station;

3. Malicious bail conditions of daily reporting to the ACT Police between 18 December 2003 and 14 January 2004;

4. Wrongful bail conditions of reporting to the ACT Police twice a week between 15 January 2004 and 24 January 2004;

5. Wrongful arrest outside the Pasadena building at 111 Knox Street, Watson, and false imprisonment inside the Civic police station on Saturday 5 June 2004 for 42 hours despite my having requested the ACT Magistrates Court to schedule a hearing during my stay in Canberra on the basis of my rebuttal submitted on 2 January 2004; and

6. Wrongful bail conditions of reporting to the ACT Police twice a week between 7 June and 7 July 2004.

In order to send a clear and unambiguous message that acts of unjustified and wrongful bullying and abuse committed by the ACT Policing Force and the ACT Director of Public Prosecutions are not part of the ACT community's approach to law and order, compensation should be awarded for malicious prosecution, wrongful arrest and false imprisonment to which the plaintiff has been subjected.

The compensation should be commensurate with the gravity of the ordeal and nightmare the plaintiff had to endure.

Consequently, a minimum amount of compensation should be $200,000, with market interest to be calculated from December 2003.

9. The plaintiff attached to the statement of claim three documents. Attachment A appears to be a submission addressed to the Territory Attorney-General, Mr Corbell. Attachment B is a document headed "Rebuttal of Charges of Stalking Made Up by [a named person]". Attachment C is a copy of a news item published in October 2005 in the Sydney Morning Herald reporting on an award of damages for wrongful arrest in favour of a Sydney solicitor against a NSW police officer.

10. The first defendant filed an application for summary judgment, and in the alternative for an order that the statement of claim be struck out. Counsel for the first defendant informed me at the commencement of the hearing of the application that summary judgment was no longer sought. The solicitors for the first defendant had filed an affidavit by an officer of the Australian Federal Police in support of the application for summary judgment. In the circumstances I have not read or had regard to the contents of that affidavit.

11. I have had the benefit of extensive written submissions prepared by senior counsel for the second defendant, and also of written submissions by counsel for the first defendant who generally adopts the submissions of the second defendant. The plaintiff has also provided written submissions. Counsel for both defendants, and the plaintiff, supplemented their submissions orally at the hearing.

12. Counsel for both defendants submit that there is no cause of action known to the law of imposing harsh or unreasonable bail conditions. I am satisfied that this is so. The plaintiff has not been able to point to any authority to the contrary.

13. Even if such a cause of action existed, no facts have been pleaded which could support it. The statement of claim does not state who granted bail on any of the dates mentioned, nor does it set out the bail conditions or explain why they are said to have been malicious or wrongful.

14. Wrongful arrest, false imprisonment and malicious prosecution are causes of action known to the law, but the statement of claim does not tell the Court or the defendants what the plaintiff alleges that he was prosecuted for, nor does it provide any useful information about the asserted arrests or instances of imprisonment.

15. In Banque Commerciale SA en liquidation v Akhil Holdings Limited [1990] HCA 11; (1990) 169 CLR 279, Mason CJ and Gaudron J said at 286:

The function of pleadings is to state with sufficient clarity the case that must be met: . . . in this way, pleadings serve to ensure the basic requirement of procedural fairness that a party should have an opportunity of meeting the case against him or her and, incidentally, to define the issues for decision. The rule that, in general, relief is confined to that available on the pleadings secures a party's right to this basic requirement of procedural fairness.

16. Burchett J in Multigroup Distribution Services Pty Ltd v TNT Australia Pty Limited [1996] FCA 1758; (1996) ATPR 41-522 at 42,679 said:

The primary function (of a statement of claim) is to tell the defending party what the claim is that he has to meet. That is a matter of elementary and natural justice; the claim cannot be answered until it is known. When a sufficient defence has been filed to a sufficient statement of claim, a further function will generally have been performed - that of defining the question or questions for decision. This definition is required, of course, from an early stage, or else discovery and other interlocutory procedures are likely to prove misdirected, wasteful and unproductive. In order to achieve these fundamentals, a statement of claim must set out clearly, not just the bare claim that is made, but also "the material facts on which it is based", including facts that, if not specifically pleaded, might take the other party by surprise . . .

17. Goldberg J observed in Mitanis v Pioneer Concrete (Vic) Pty Limited [1997] FCA 1040; (1997) ATPR 41-591 that:

The cardinal provision . . . is that the statement of claim must state the material facts. The word "material" means necessary for the purpose of formulating a complete cause of action; and if any one "material" fact is omitted, the statement of claim is bad; it is "demurrable" in the old phraseology, and in the new is liable to be "struck out" . . .

18. The tort of malicious prosecution contains a number of elements, one of which is that the defendant must have been actuated by malice. The statement of claim does not assert facts which could establish that conclusion.

19. The tort of false imprisonment, which encompasses the concept of wrongful arrest, contains an element of deprivation of freedom of movement without lawful justification. The plaintiff has not pleaded material facts capable of establishing that cause of action.

20. I acknowledge that the plaintiff has brought the present action without the benefit of legal advice. In the circumstances the function of the Court is to ensure that the plaintiff understands the nature of the proceedings, but it is not part of my role to provide the plaintiff with legal advice, still less to assist him with drafting his pleading. There is no evidence as to his financial position. I am prepared to accept for the purposes of the present application that he is unrepresented because he cannot afford the cost of legal representation. I can reasonably take judicial notice of the fact that legal aid is generally not available for civil proceedings of this kind and certainly not in the absence of an opinion by an experienced legal practitioner that the proceedings have at least reasonable prospects of success. This may be unfortunate for the plaintiff but does not entitle him to any special privilege as a litigant.

21. As presently pleaded, the plaintiff's action could not succeed. I am not at this stage of the proceedings asked to dismiss the action. All I am asked to do it to strike out the statement of claim, which would give the plaintiff the opportunity to replead. I have already indicated that the cause of action the plaintiff has attempted to plead in relation to bail conditions seems to me unsupportable. It may be that, if properly pleaded, the plaintiff could maintain, and take to trial, a claim for false imprisonment and for malicious prosecution.

22. In those circumstances the appropriate order is that the statement of claim be struck out and that the plaintiff be given the opportunity to deliver an amended statement of claim. It seems to me reasonable, balancing the interests of the plaintiff against those of the defendants, that he should be permitted a period of 28 days to do that, if he wishes to. I recommend very strongly to him that he obtains advice from a legal practitioner in that endeavour. Pleading is a particular skill which I would not expect to come naturally to a person without legal qualifications and experience. The plaintiff runs the risk that if his next attempt fails, the action will be dismissed and he will be ordered to pay the defendants' costs of the proceedings, which I would expect to be substantial.

23. I order that the statement of claim be struck out. I further order that the plaintiff have 28 days to deliver an amended statement of claim if so advised. The action will be stood over for further directions to the Registrar's list on 21 July 2008.

24. I dispense with the requirement, should it be thought to apply, for any steps to be taken in relation to my orders about the names of the parties. It will be sufficient if future documents filed reflect my orders as to those amendments.

25. The plaintiff must pay the costs of both defendants of this application, those costs not to include the first defendant's costs relating to the proposed application for summary judgment, and hence not to include the costs which relate to the preparation, filing and service of the affidavit of Olivia Louise Cruise sworn on 16 May 2008.

I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Master.

Solicitors for the first defendant: DLA Phillips Fox

Counsel for the second defendant: Dr MA Perry QC with Mr RT Bayliss

Solicitors for the second defendant: ACT Government Solicitor