The injury was said to be caused by "a series of abusive treatment": par 14.
8 On 20 March 2009 a defence was filed by the State, which claimed that the whole of the statement of claim was embarrassing and was difficult to plead to.
9 As foreshadowed in the defence, on 1 March 2009 the State filed a notice of motion seeking to have the statement of claim "dismissed generally" pursuant to r 13.4(b) of the Uniform Civil Procedure Rules 2005 (NSW) ("the UCPR"). In the alternative, the State sought to have the statement of claim struck out pursuant to r 14.28 (as a pleading which disclosed no reasonable cause of action or was embarrassing) or because the causes of action were statute barred.
10 The State's notice of motion came before Hulme J in the Common Law Division on 2 July of this year. His Honour ordered that the statement of claim be dismissed, presumably meaning that the proceedings be dismissed generally. It may be inferred from the reasons that he did so on the basis that no reasonable cause of action was disclosed: r 13.4(1)(b).
11 His Honour noted that the claim was "for aggravated damages for personal injury for breach of statutory duty": par 1. He noted the purported reliance upon ss 43(1) and 43A(1) of the Civil Liability Act 2002 (NSW) and stated, correctly, that while it was understandable that the terms of the provisions might be thought to give rise to a duty, those sections were in fact designed to limit the circumstances in which civil liability would arise under the general law.
12 The statement of claim also referred, unnecessarily, to UCPR r 15.8, which requires that a claim for "aggravated compensatory damages" must be fully pleaded.
13 Finally, the statement of claim referred to s 7(a), (b), (c) and (h) and s 150(a) and (b) of the Police Act 1990 (NSW). Section 7 imposes a general obligation on each member of the NSW Police Force to uphold the rule of law and otherwise act in a manner which accords with the various values set out in that provision. Section 150 is in different mode and involves procedures to be followed by the Commissioner in investigating a complaint about police conduct. In particular the paragraphs referred to require that the Commissioner must, if practicable, consult with the complainant before deciding what action to take and must provide the Ombudsman with appropriate documents and advice as to the outcome of the investigation.
14 Hulme J correctly noted that breach of any of these obligations could not give rise to a claim for damages in civil proceedings by someone claiming to have suffered injury as a result of such breach.
15 Nevertheless, the statement of claim does not appear to have been limited to a cause of action for breach of the statutory provisions. Although it followed the form of proceedings originally commenced in the District Court by solicitors then acting for the plaintiff, it is appropriate, as the State accepts, to read the document as a set of factual allegations which could give rise to alternative causes of action. That his Honour so treated the matter is implicit in his reliance upon three decisions which relate to whether or not an action for negligence can arise under the general law in respect of the exercise by police of their investigative functions: see Tame v New South Wales [2002] HCA 35; 211 CLR 317; Wilson v State of New South Wales [2001] NSWSC 869; 53 NSWLR 407; Cran v State of New South Wales [2004] NSWCA 92; 62 NSWLR 95. His Honour noted that the plaintiff's case "is not in its terms confined to an action for negligence" accepting, by implication that those cases were so confined. The alternative approach which his Honour then considered was the claim based on breach of statutory duty.
16 The State says that the matter was argued before his Honour on the two bases noted above. With respect to those matters, an appeal would have no reasonable prospects of success. However, it is not clear that the statement of claim should be treated as so limited.
17 The statement of claim identifies a number of actions on the part of Senior Constable Kennedy, said to have been undertaken intentionally, which could involve deliberate attempts to pervert the course of justice. Further allegations suggest deliberate attempts by other officers to thwart the internal investigation of the plaintiff's complaint in relation to Senior Constable Kennedy's actions.
18 There is a clear distinction between the availability of a cause of action in negligence and a claim based on an intentional tort, in respect of the liability of the State for actions of police officers: Darker v Chief Constable of West Midlands Police [2001] 1 AC 435. Further, a distinction may need to be drawn between the conduct of police in carrying out prosecutorial functions and those involving administrative or investigative functions: see Cran at [63] (Santow JA) and at [81] (Ipp JA) (McColl JA agreeing with both). The State also relies upon the immunity from civil action in respect of functions with respect to court proceedings. This matter may be addressed as the State intends by a notice of contention on an appeal but it was not addressed below.
19 The statement of claim may well be deficient in a number of respects in seeking to identify facts giving rise to a cause of action for an intentional tort. However, if such a cause of action were available and could reasonably be discerned as underlying the pleading in its present form, the appropriate course might well be to strike out the pleading, with leave to replead, rather than dismissing the proceedings generally.
20 The State has put on a notice of contention seeking to uphold the judgment below, curiously, in part on grounds upon which his Honour did rely, but also on other grounds. Some of those grounds, relating to the nature of the pleading, may well give rise to an order of the kind referred to above, striking out the pleading but not dismissing the proceedings generally. The State also seeks to uphold the judgment on the basis that the proceedings were commenced out of time. That contention may, however, depend upon the relevant cause of action. It would also depend upon whether the relevant limitation period could be extended. It may be that the State would ultimately succeed on such arguments, as in respect of the immunity argument, but these matters were not addressed below and were not the subject of any finding by the trial judge. They would not stand in the way of a grant of leave to appeal from the orders made in the Common Law Division.
21 For these reasons, it is appropriate that the applicant have leave to appeal. The costs of the application should be costs in the appeal.
22 The orders of the Court are: