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WANG v STATE OF NEW SOUTH WALES [2010] NSWCA 209 | Case summary | Zoe

NSWNSWCA

WANG v STATE OF NEW SOUTH WALES [2010] NSWCA 209

[2010] NSWCA 209

Court of Appeal (NSW)|2010-08-24|Before: Basten JA, Macfarlan JA, Hulmle J

View on NSW Caselaw

At a glance

Source facts

Court

Court of Appeal (NSW)

Decision date

2010-08-24

Before

Basten JA, Macfarlan JA, Hulmle J

Catchwords

APPEAL - civil - interlocutory - construing pleading - whether primary judge erred in dismissing proceedings - whether plaintiff should have had limited leave to replead

Source

Original judgment source is linked above.

Catchwords

APPEAL - civil - interlocutory - construing pleading - whether primary judge erred in dismissing proceedings - whether plaintiff should have had limited leave to replead

Judgment

Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.

Appeal Outcome: Special leave application dismissed by the High Court, 11 November 2010, (S201/2010) [2010] HCASL 273

New South Wales

Court of Appeal

CITATION: WANG v STATE OF NEW SOUTH WALES [2010] NSWCA 209

HEARING DATE(S): 10 August 2010

JUDGMENT DATE:

24 August 2010

JUDGMENT OF: Basten JA at 1; Macfarlan JA at 1; Handley AJA at 1

DECISION: (1) Allow the appeal.

(2) Set aside the order made in the Common Law Division on 2 July 2009 dismissing the statement of claim and ordering the plaintiffs to pay the defendant’s costs.

(3) In place thereof make the following orders:

(a) strike out the statement of claim filed 29 December 2008, but grant the plaintiff (Li Wang) leave to file a fresh statement of claim by 8 October 2010, such leave being limited to: a claim against the State of New South Wales with respect to the conduct of Richard Kennedy, then a senior constable of police, during the period from 10 January to 27 July 2004, following a complaint of an alleged assault on the plaintiff by her landlord;

(b) such leave excludes any claim –

(i) by the plaintiff’s husband;

(ii) against Inspectors Melton and Krawczyk;

(iii) against Commanders G McCarthy, L Freudenstein and G Beresford;

(iv) against Police Prosecutor Mr Ian Casha;

(v) against the Director of Public Prosecutions;

(vi) against Mr B Searson of the New South Wales Police Legal Services, and

(vii) in respect of the present proceedings.

(c) no order as to the costs of the motions determined on 2 July 2009;

(d) grant the plaintiff leave to apply to a judge in the Common Law Division to vary these conditions, if so advised, but only on the basis of an affidavit provided by a legal practitioner that there is a cause of action which would otherwise be precluded, which has reasonable prospects of success.

The defendant raised three grounds as reasons not to uphold the appeal: (a) Senior Constable Kennedy enjoyed immunity from liability in respect of the allegations made against him, as the officer in charge of the prosecution and as a witness in the prosecution proceedings; (b) the limitation period pursuant to ss 50C and 50D of the Limitation Act had expired prior to the commencement of proceedings; and (c) the plaintiffs' inability to plead a valid cause of action which was reasonably arguable: [20]-[21].
In relation to (a), the application of the immunity in the present case seems doubtful, both because of the need to define its scope, and because of uncertainty as to the precise activities and the role of Senior Constable Kennedy in relation to the matters complained of: [22]-[23] Gibbons v Duffell [1932] HCA 26; 47 CLR 520, Cabassi v Vila [1940] HCA 41; 64 CLR 130, Commonwealth of Australia v Griffiths [2007] NSWCA 370; 70 NSWLR 268, cited.
In relation to (b), s 50C of the Limitation Act prescribes a period within which proceedings must be brought, identified by reference to a commencement date being the date on which “the cause of action is discoverable by the plaintiff”: s 50C(1)(a). Pursuant to s 50D, the cause of action is “discoverable” on the first date that the person “knows or ought to know” each of a number of facts, including “the fact that the injury … was caused by the fault of the defendant” and “the fact that the injury was sufficiently serious to justify the bringing of an action on the cause of action”: s 50D(1)(b) and (c). The facts necessary to determine the commencement of the three year limitation period were not found in the Court below nor were such findings sought in this Court. Accordingly, the dismissal of the proceedings cannot be supported on this ground: [25]. Baker-Morrison v State of New South Wales [2009] NSWCA 35; 74 NSWLR 454
In relation to (c), it is not appropriate for this Court to deny the plaintiff a further opportunity to formulate an adequate pleading if the primary judge dealt with the defendant's strike out motion on too peremptory a basis. There are elements of an intentional tort which appear to have been relied upon in the original claim, but which, by themselves, would not be adequate to establish a legally available cause of action: [29].

The significance of these provisions is found in the final sentence of paragraph 1 of the pleading, which described the proceedings as being “on a claim for aggravated damages for personal injury for breach of statutory duty”. Specific reference was made to these and other sections of the Police Act in the particulars identified in the claim.
Finally, paragraph 1 of the statement of claim asserted that it was brought pursuant to ss 43(1) and 43A(1) of the Civil Liability Act 2000 (NSW). As the primary judge noted (at p 3): “One can understand how a non-lawyer, particularly one whose command of English is not perfect, could read more into those sections than they say when strictly construed. However, strict attention to their words makes it clear that the sections are designed to limit circumstances in which a breach of statutory duty giving rise to civil liability occurs. The sections do not purport to create any cause of action.”
Section 43 of the Civil Liability Act is concerned particularly with a claim for civil liability based on a breach of a statutory duty by a public authority. Section 43A is concerned with proceedings for civil liability based on the exercise or failure to exercise a statutory power “of a kind that persons generally are not authorised to exercise without specific statutory authority”: s 43A(2)(b). The section provides that no civil liability arises unless the act or omission was “so unreasonable that no authority … could properly consider the act or omission to be a reasonable exercise of, or failure to exercise, its power”: s 43A(3). Section 43 imposes a similar limitation not found in the general law.
The key aspect of paragraph 1 is to be found in its reference to breach of statutory duty.
After referring to authorities supporting the proposition that “there is no relevant duty of care arising as an incident of police investigations”, the primary judge noted that the plaintiff’s case was “not in its terms confined to an action for negligence, rather does paragraph 1 of the document seem to suggest that it is an action for breach of statutory duty”: Judgment, p 2. His Honour noted that the statutory duties in question pre-dated the authorities to which he had referred, which, inferentially, excluded the possibility of a cause of action based on breaches of statutory duties, as a particular of negligence, or as separate causes of action in their own right.
So understood, his Honour was entitled to find that the pleading failed to identify a reasonable cause of action. However, it is not appropriate to treat the pleading (particularly one filed by a litigant in person) as if it were limited by the reference to breach of statutory duty in the first paragraph. The original statement of claim ran to 15 paragraphs and should be read as a whole. Paragraph 2 identified the State as being sued in respect of conduct of the police officers. Paragraph 3 noted, in effect by way of background, that the plaintiff had been assaulted in her home by her landlord. The account which then followed in paragraphs 4-6 was that, the police having been contacted and Senior Constable Kennedy assigned to the case, Senior Constable Kennedy did not come to the plaintiff’s home as he should have done, and falsified police records to indicate that he had. Subsequently, it was alleged that (par 5): “Senior Constable Kennedy, in an attempt to cover up his mistake on 10 January 2004, intentionally:

The complaint revealed by this pleading was clearly not based in negligence. Although, in the vernacular, it might be thought to involve breaches of duties imposed by statute on police, in terms it alleged intentional misconduct, which might constitute an intentional tort.
The second part of the statement of claim concerned a complaint lodged by the plaintiff in relation to the actions of Senior Constable Kennedy (and Inspector Muir, whose role was not identified in the original statement of claim).
The second part of the statement of claim is confusing in a number of respects and cannot readily be summarised. For example, there was a complaint that a statement taken from the husband, Mr Liu, was a “forgery” (par 12 a.), whereas it was further alleged that the statement was altered so as to remove the signature to render it useless: par 12 b. It is sufficient to say that the investigating officers (Inspectors Krawczyk and Melton) were alleged to have deliberately misconducted themselves so as to protect Senior Constable Kennedy from criminal investigation and to suggest that an investigation was ongoing, when it was not. It appears from evidence before this Court that the investigating officers may have formed the view that there was misconduct on the part of Senior Constable Kennedy, as a report was referred to the Director of Public Prosecutions, who took the decision not to prosecute.
Whether there was any substance to the complaints in respect of the conduct of those investigating Senior Constable Kennedy, is unclear. The importance of the second limb to the claim (relating to the investigating officers) appears to arise from the fact that although the plaintiff received counselling between 19 January 2004 and June 2005, thereafter her medical condition improved to the extent that she “ceased to use medication, and could complete chores and care for [her] child”: par 11. Her psychological condition is alleged to have deteriorated after September 2005, as explained in a medical report of October 2007. It is not clear from the statement of claim whether the deterioration after September 2005 was related to the conduct of Senior Constable Kennedy, rather than the conduct of the investigating officers. Identifying a separate cause of action in relation to the investigation undertaken by Inspectors Melton and Krawczyk may have significance, both for the recovery of damages and for any defence under the Limitation Act.
Relevantly for present purposes, the primary judge did not identify the possibility that the facts pleaded might give rise to a claim for damages arising from an intentional tort, which would not be precluded by the absence of a duty of care in relation to possible psychiatric injury, of the kind considered in Tame v New South Wales [2002] HCA 35; 211 CLR 317 and Cran v State of New South Wales [2004] NSWCA 92; 62 NSWLR 95.

It is convenient to deal first with the contention based on Senior Constable Kennedy’s immunity. First, it should be understood that the immunity relied upon was said to arise under the general law, and therefore did not constitute a “statutory exemption” which would be unavailable to the State: see Law Reform (Vicarious Liability) Act 1983 (NSW), s 10. However, the precise scope of the immunity for police in relation to investigation and preparation of a matter for trial is not without its difficulties. Similarly, although it is clear that Senior Constable Kennedy was involved in the investigation of the plaintiff’s complaint of assault, it is unclear what precise role he had to play in relation to the court proceedings. In his role as a witness, he would have enjoyed absolute immunity: see Gibbons v Duffell [1932] HCA 26; 47 CLR 520 at 525 (Gavan Duffy CJ, Rich and Dixon JJ); Cabassi v Vila [1940] HCA 41; 64 CLR 130 at 139 (Rich ACJ), 140 (Starke J), 149 (Williams J). However, it is not in doubt that a police officer can be liable for misconduct, such as falsely arresting a person, and for misfeasance in public office. As explained by Beazley JA in Commonwealth of Australia v Griffiths [2007] NSWCA 370; 70 NSWLR 268 at [43]: “The rationale for witness immunity is generally stated as being founded in the promotion of two objectives: first, ensuring that witnesses are able to give evidence freely in an atmosphere devoid of threats of suit from disappointed litigants; and secondly, to avoid multiplicity of actions in which the evidence would be tried over again ….”
The application of the immunity in the present case seems doubtful, both because of the need to define its scope, and because of uncertainty as to the precise activities and role of Senior Constable Kennedy in relation to the matters complained of. The operation of the defence would depend on factual findings which were not made below and are not sought in this Court.
There may even be an argument that the vicarious liability of the State, created by s 8(1) of the Law Reform (Vicarious Liability) Act, may extend to liability for conduct in respect of which the police officer is personally immune. The Court was taken to no case in which this aspect of the statute was addressed, nor in which the consequences of s 9B(2), which prevents legal proceedings being taken against the officer in respect of a “police tort claim” (but allows a claim against the State) had been considered. In any event, these would not, even if a general immunity were available in respect of a claim against Senior Constable Kennedy, be appropriate for resolution on an application for summary judgment.

The State’s submissions in this regard involve a number of propositions, namely: (a) the plaintiff has had ample opportunity to formulate a valid claim, if she has one; (b) because the plaintiff is unrepresented, and there is no requirement for a certificate as to the reasonable prospects of any claim, the Court would subject the possibility of a legitimate claim to careful scrutiny, and (c) the only intentional torts identified so far are those of “conspiracy” and “perverting the course of justice”, which do not bear any realistic promise of being arguable.
In considering these matters, it is convenient to commence with two preliminary considerations. The first is that the approach which the legal representatives of the State have taken to the civil proceedings in this Court appears to have been both reasonable and sensible and to conform to its obligations as a model litigant. As with any other litigant, the State is entitled to resist the undue expenditure of resources in response to what may seem to it to be hopeless litigation.
As a second preliminary matter, limited weight should be placed on the fact that there will be no certificate under s 347 of the Legal Profession Act 2004 (NSW), because the plaintiff is unrepresented. A possible consequence of the obligation imposed by the Legal Profession Act on lawyers acting in relation to personal injury claims is that persons whose claims do not have reasonable prospects of success, but cannot be persuaded to abandon their claims, may end up approaching the Court unrepresented. The Court, however, will rarely know the circumstances and reasons for a litigant being unrepresented and cannot assume that the proposed claim is without prospects of success. There are other reasons why some people reject, or are unable or unwilling to obtain, legal assistance. While the absence of an obligation to provide a certificate as to prospects of success may not be entirely irrelevant, it is a factor which should not be accorded determinative weight in the present case.
Turning to the first point raised by the State, it is true that the plaintiff has made a number of attempts (in recent times through her husband) to formulate a legally arguable claim. There are aspects of the present claim which suggest that, without legal assistance, she may well not succeed. Nevertheless, on the basis that the primary judge dealt with the State’s strike out motion on too peremptory a basis, without addressing the possibility that the matters of fact which were alleged might form the basis of an intentional tort, it is not appropriate for this Court to deny the plaintiff a further opportunity to formulate an adequate pleading, if that is the order which should have been made by the primary judge. It is not proposed to rule upon the content of the document handed up in Court, except to indicate the limitations on the scope of the permissible repleading.
As noted above, there are elements of an intentional tort which appear to have been relied upon in the original claim, but which, by themselves, would not be adequate to establish a legally available cause of action. Those paragraphs have been expanded upon in the proposed sixth amended statement of claim handed up to this Court.
Paragraph 1 abandons a claim for breach of statutory duty and, in its place, seeks damages for personal injury caused by “intentional torts, conspiracy, perverting the course of justice against the victims and conspiring to prevent successful prosecution in criminal investigation and prosecution”.
Paragraph 7 of the proposed amendments relates to the events of 11 June 2004 when the assault charge was dismissed. In addition to making a claim against Senior Constable Kennedy, it seeks to add a claim against the Police Prosecutor. It also identifies the nature of Senior Constable Kennedy’s misconduct more precisely, stating that he “made false testimony” and “made false affidavit”. These features gave rise to the concern on the part of counsel for the State that a repleading would only demonstrate the extent to which the claim fell foul of the separate immunities of advocates and witnesses in court proceedings.
The complaints concerning the statement of Mr Liu of 27 July 2004 are too obscure to warrant leave to replead. The suspicions of Mr Liu appear to have been raised by the provision of copies of the statement in various forms. One form was a redacted version obtained under the Freedom of Information Act 1989 (NSW) (now the Government Information (Public Access) Act 2009 (NSW)), in which numerous parts were blanked out, a practice which, at least in relation to his own statement, cannot have inspired confidence in the recipient. (Why he may not have been entitled to an unredacted copy of his own statement need not be explored.) However, his concern related to the fact that at various times he obtained three copies, differently executed. Why that should be so is also not a matter which this Court needs to explore. A number of possible explanations can be suggested, but none bear upon the content of the statement, nor on its value in the eyes of the law.
The result of the inquiry by Inspectors Melton and Krawczyk was, it appears, a recommendation that charges be laid against Senior Constable Kennedy. That did not occur, because the Director of Public Prosecutions took the view that there was insufficient evidence to charge Senior Constable Kennedy with any criminal offence. It is not possible to discern in the allegations against the investigating inspectors any basis for establishing a tortious liability on their part for which the State is liable. There should be no leave to replead that aspect of the proposed amended statement of claim.
At paragraphs 15-17 of the proposed document, complaints are made against the Director of Public Prosecutions. Those complaints do not demonstrate any possible civil liability for action on his part. Similarly, a complaint in respect of the release of documents by an officer in the Police Legal Services section is without substance. Paragraph 19 asserts a form of obstruction arising from the redaction of documents released under freedom of information. There is a legal process for challenging decisions taken under the Freedom of Information Act, but it is not possible to identify any civil liability on the part of those who may have made such decisions.
A new proposed paragraph 20 identifies the damage suffered by the plaintiff and by Mr Liu. The damage Mr Liu has suffered is said to be consequential upon the need to look after his wife as her psychological condition deteriorated and to look after their young child. He complains of both physical and psychological ailments since August 2008.
There then follow paragraphs 24-36, which contain a litany of complaints about the administration of justice and the course of proceedings in the Supreme Court. The management of litigation for a lay person seeking to conduct proceedings in a language which is not his first language must be stressful. The stresses of the litigation have no doubt compounded the domestic difficulties to which Mr Liu referred. However, the complaints about the course of the litigation do not suggest any legitimate basis for any fresh cause of action. Whether the additional stress can form a head of damages in relation to a pre-existing cause of action is another question, which need not be addressed at this stage.

Toohey J noted (at 615): “The cause of action pleaded against the respondent and the nature of the relief claimed invite a number of questions but they are not the subject of this appeal.”
The same comment may be made in the present case. To the extent that the first paragraph of the proposed new statement of claim seeks to pick up the comments with respect to intentional tort made by this Court in giving judgment on the leave application, it suggests that Mr Liu is not averse to acting on suggestions from those who are legally qualified. Needless to say, it is not the role of this Court to provide guidance to litigants, but to rule upon the issues brought before it for determination. The complaint of counsel for the State that there must be a limit to the number of opportunities which the plaintiff may have to put her claim into proper form is not without merit. Whether Mr Liu is prepared to accept free legal advice through the scheme organised by the Court with the Bar Association is by no means clear. However, it seems unlikely that an adequate pleading will be prepared without legal assistance. Accordingly, it is appropriate to refer the plaintiff (and her tutor Mr Liu) to the Registrar for referral to a barrister having experience in tort claims against statutory authorities for assistance in drafting a further amended statement of claim. Whether Mr Liu avails himself of that assistance is entirely a matter for him. However, the facility is free and should be made available to him.
Had the proposed orders been made by the primary judge on the motions, the same costs would have been incurred before his Honour, but each party would have been partly successful. There should be no order in respect of the costs of the motions determined in the Common Law Division on 2 July 2009. The plaintiff should have her costs, as an unrepresented party, in this Court.
The Court makes the following orders: (1) Allow the appeal. (2) Set aside the order made in the Common Law Division on 2 July 2009 dismissing the statement of claim and ordering the plaintiffs to pay the defendant’s costs. (3) In place thereof make the following orders: (a) strike out the statement of claim filed 29 December 2008, but grant the plaintiff (Li Wang) leave to file a fresh statement of claim by 8 October 2010, such leave being limited to: a claim against the State of New South Wales with respect to the conduct of Richard Kennedy, then a senior constable of police, during the period from 10 January to 27 July 2004, following a complaint of an alleged assault on the plaintiff by her landlord; (b) such leave excludes any claim – (i) by the plaintiff’s husband; (ii) against Inspectors Melton and Krawczyk; (iii) against Commanders G McCarthy, L Freudenstein and G Beresford; (iv) against Police Prosecutor Mr Ian Casha; (v) against the Director of Public Prosecutions; (vi) against Mr B Searson of the New South Wales Police Legal Services, and (vii) in respect of the present proceedings.