False imprisonment and trespass - paragraphs 6, 7, 12 and 13
14 These paragraphs allege false imprisonment and trespass to goods (and perhaps trespass to the person - see below).
15 Paragraph 6 relates to the events of 15 February and para 7 to those of 16 February. Apart from the difference in dates, they are identical. It will therefore suffice if I set out paras 6, 12 and 13, which are as follows:
6. On 15 February 2008, whilst the First Applicant was performing the employment contract in furtherance of the supply contract and after the carriage contract had commenced and the First Applicant was attempting to pass through the Immigration Passport Checkpoint at Sydney International Airport to board Singapore Airlines flight SQ232, the Second Respondent by its servants or agents: approached the First Applicant at Kingsford Smith International Airport, Sydney and thereafter deprived him of his liberty, restraining him and threatening him that should he proceed further through the airport whereby he reasonably feared that unless he complied with such directions his liberty and person were threatened such that he would be compulsorily detained prosecuted and imprisoned, and further then seized the First Applicant's passport and boarding pass for flight SQ232, and retained his travel documents including his passport and boarding pass and directed that the carrier discharge the Applicant's luggage including his equipment and tools of trade from the aircraft of Singapore Airlines conducting flight SQ232, whereby the First Applicant was falsely imprisoned and/or the Respondents and each of them trespassed upon the First Applicant and/or his personal property.
Particulars:
a. The Respondents and each of them by their servants or agents wrongly detained the First Applicant; and
b. without explanation, retained the First Applicant's Passport, completed Immigration document and Airline Boarding Pass; and
c. instructed the First Applicant that he was to remain in a particular confined area of the Immigration zone within sight of the servants or agents of the Second Respondent as well as the general public passing through the Immigration zone; and
d. further instructed the First Applicant that he was to remain in a particular confined area of the immigration zone for an indefinite length of time whereby the First Applicant reasonably feared that unless he complied with such directions his liberty and person were threatened such that he would be compulsorily detained, prosecuted and imprisoned; and
e. later instructed the First Applicant that he was to remain in a particular confined area of the Immigration zone until Federal Police Officers arrived; and
f. refused to answer the questions of the First Applicant or provide information to the First Applicant regarding the nature of the matter or as to why he was being detained; and
g. shortly thereafter approached the First Applicant bearing firearms; and
h. proceeded to ask the First Applicant questions in full view of the general public passing through the Immigration zone; and
i. stood side by side with arms folded and in a position where the First Applicant felt further restrained, threatened and intimidated; and
j. further refused to allow the First Applicant to leave the area or to board the plane or to answer the First applicant's questions when asked; and
k. directed that the carrier discharge the Applicant's luggage including his equipment and tools of trade from the aircraft of Singapore Airlines conducting flight SQ232; and
l. refused to provide any reason for detaining the First Applicant or for preventing the First Applicant from going abut the First Applicant's business or from boarding the Singapore Airlines flight SQ232; and
m. finally instructed and or ordered the First Applicant to leave the Immigration zone and further to leave the Sydney International airport.
…
12. Further, or alternatively, on 15 and again on 16 February 2008, the Second Respondent by its servants or agents, falsely imprisoned the First Applicant at the Kingsford Smith International Airport, whereby he suffered loss and damage.
13. Further, or alternatively, on 15 and 16 February 2008 the Second Respondent by its servants or agents trespassed upon the First Applicant's goods by retaining his documents and removing or arranging for the removal of his luggage and equipment from the aircraft at the airport.
It is noted that paras 12 and 13 do not in terms allege trespass to the person, although this is alleged in terms in the concluding words of paras 6 and 7.
16 The first complaint that the respondents make is that these paragraphs fail to plead material facts. Order 4 r 6(2) of the Federal Court Rules provides that the affidavit or statement of claim that must be filed and served with the application by which a proceeding is commenced must show:
(a) the nature of the applicant's claim; and
(b) the material facts on which it is based.
Similarly, O 11 r 2 of the Federal Court Rules provides that a party's pleading must contain, and contain only, a statement in a summary form of "the material facts on which the party relies", but not the evidence by which those facts are to be proved.
17 Order 11 r 16 provides:
16 Where a pleading:
(a) discloses no reasonable cause of action or defence or other case appropriate to the nature of the pleading;
(b) has a tendency to cause prejudice, embarrassment or delay in the proceeding; or
(c) is otherwise an abuse of the process of the Court,
the Court may at any stage of the proceeding order that the whole or any part of the pleading be struck out.
18 The respondents cite H 1976 Nominees Pty Ltd v Galli and Apex Quarries Ltd (1979) 30 ALR 181; 40 FLR 242 and Trade Practices Commission v David Jones (Australia) Pty Ltd (1985) 7 FCR 109 for the proposition that the material facts must be stated in the text of a pleading, not in "particulars".
19 The leading authority for that proposition is the judgment of Scott LJ in Bruce v Odhams Press, Limited [1936] 1 KB 697. His Lordship described the difference between a statement of material facts and particulars in the following terms (at 711):
[A] radical distinction, and none the less so that in cases near the dividing line there is a penumbra where the two may and often do overlap, just as between night and day there is zone of doubt which we call dusk.
His Lordship said (at 712) that a statement of the material facts is a statement of the facts necessary to constitute a complete cause of action. He said that "particulars" are not to be used in order to fill material gaps in a statement of claim. His Lordship said (at 712-713):
The use of particulars is intended to meet a further and quite separate requirement of pleading, imposed in fairness and justice to the defendant. Their function is to fill in the picture of the plaintiff's cause of action with information sufficiently detailed to put the defendant on his guard as to the case he has to meet and to enable him to prepare for trial. Consequently in strictness particulars cannot cure a bad statement of claim. But in practice it is often difficult to distinguish between a "material fact" and a "particular" piece of information which it is reasonable to give the defendant in order to tell him the case he has to meet; hence in the nature of things there is often overlapping. And the practice of sometimes putting particulars into the statement of claim and sometimes delivering them afterwards either voluntarily, or upon request or order, without any reflection as to the true legal ground upon which they are to be given has become so common that it has tended to obscure the very real distinction between them.
20 Bruce v Odhams Press, Limited was a defamation case. The defendant company had published a newspaper article which referred to certain aeroplane smuggling exploits of "an Englishwoman". By her statement of claim, the plaintiff merely asserted that these words were meant and were understood to mean her. This was held to be failure to plead material facts. It was necessary for the plaintiff to plead extrinsic facts on which she would rely to link the words "an Englishwoman" to herself.
21 In H 1976 Nominees Pty Ltd v Galli and Apex Quarries Ltd, above, Northrop J, following Scott LJ in Bruce v Odhams Press, Limited, rejected (at 187) an argument that the particulars to a paragraph of a statement of claim should be treated as a statement of material facts for the purposes of the Federal Court Rules.
22 The distinction between material facts and particulars was recognised by Fisher J in Trade Practices Commission v David Jones (Australia) Pty Ltd, above (at 112 ff). His Honour described the paragraph of the statement of claim in question in that case as "merely a statement of a conclusion drawn from facts which are not in the statement of claim" (at 114). The paragraph pleaded that certain respondents had "made an arrangement or arrived at an understanding". The deficiency in that allegation was not cured by the giving of particulars of the individuals who had represented those respondents at a certain meeting, the date and place of the meeting, the identity of those present, and the effect of the arrangement or understanding.
23 It may be that the distinction between material facts and particulars is not insisted upon as strictly nowadays as it was a few decades ago. An advantage of maintaining the distinction is that it emphasises, for the benefit of both the parties and the Court, that the applicant's position is that it is the facts pleaded in the text of the statement of claim, no more and no less, that the applicant needs to prove in order to establish the asserted cause of action. So long as the distinction is understood and observed, there will not be the confusion that arises when either party, if and when it suits its own purposes, refers to the particulars as if they formed an undifferentiated part of the pleading.
24 The text of paras 6 and 7 is deficient. The expression "deprived him of his liberty" may mean "locked him in a room", "forcibly man-handled him into a room and stood guard at the doorway", "handcuffed him", "encircled him" and so on. The expression "restraining him" is subject to the same kind of criticism.
25 This criticism is fundamental. It is one thing to invite or direct a person to step to one side for a conversation and another to prevent a person physically from exercising his or her liberty of movement.
26 The words "threatening him" that should he proceed further through the airport whereby he reasonably feared…" are grammatically incomplete. We are not told what the threat was. Perhaps it was "threatening him that should he proceed further through the airport he would be arrested" or "threatening him that should he proceed further through the airport he would commit a criminal offence" or "threatening him that should he proceed further through the airport he would not be allowed to board the plane".
27 Furthermore, it is alleged that Mr Whittaker was in fact deprived of his liberty and restrained, but it is then alleged that there was a threat that he would be "compulsorily detained, prosecuted and imprisoned". The making of the threat assumes that it was physically possible for Mr Whittaker to proceed further through the airport.
28 If I eliminate from my mind the distinction between the pleading of material facts and particulars, it seems that the allegation is that someone "instructed" Mr Whittaker to remain in "a particular confined area". I have the impression that he was not manhandled but was instructed to accompany officers of the Commonwealth to a "confined area" and was instructed to stay there. I do not know, however, what the expression "confined area" means. It may be a room but it may be an open area marked off in some way from the public concourse. The allegation must be made clear. In a claim of false imprisonment, the precise nature of the alleged confinement is important.
29 Some precedents for the pleading of false imprisonment can be found in Bullen & Leake & Jacob's Precedents of Pleadings (London, Sweet & Maxwell, 2008) at pp 58 ff (2-A13 ff) (Bullen & Leake).
30 The respondents' first objection is sustained.
31 The respondents' second contention is that the ASC fails to plead unlawfulness. The respondents contend that the pleading is deficient for a failure of the applicants to plead that the conduct of the Commonwealth's officers was not authorised by s 72U of the Collection Act because the officers did not have the relevant belief on reasonable grounds. The respondents point out that the pleading (at para 14) acknowledges that a DPO was at least purportedly made, which, on the face of things, would be sufficient to provide a basis for reasonable belief under s 72U.
32 All of the relevant pleadings of false imprisonment in Bullen & Leake incorporate the word "wrongfully" and I think that that word should be incorporated into the text of paras 6 and 7. But that is as far as the applicants need go. I do not accept that the applicants must plead, and later prove, the absence of reasonable belief. It will be for the respondents to plead and prove by way of defence facts showing that s 72U of the Collection Act made the officers' conduct lawful.
33 The respondents' third criticism of paragraphs 6, 7, 12 and 13 relates to the claim of trespass to Mr Whittaker's person. There is no allegation of physical contact that would constitute "battery", and no allegation "that the first applicant had at any time a reasonable apprehension of imminent physical contact" that would constitute assault. The ASC is embarrassing in this respect. Moreover, as mentioned earlier, trespass to the person is in terms alleged in paras 6 and 7 but is not repeated in terms in paras 12 or 13.
34 Trespass to the person may be assault, battery or false imprisonment. Mr Whittaker may intend to allege one, two or all three of these. False imprisonment is often accompanied by an assault and a battery. Battery requires physical contact, whereas assault does not. An assault is:
an act involving an imminent threat to touch another in a hostile manner with the capability to carry out such threat: a menacing attitude, such as holding up a hand or a stick to strike a person who is within reach at the time, constitutes an assault… A person may commit an assault without committing a battery (Bullen & Leake at 2-01, p 38)
The physical contact that constitutes battery is physical touching, whether by hand, weapon or missile.
35 If it is to be alleged that there was a battery, the ASC will need to be further amended. If there is to be an allegation of assault, likewise. At present the ASC alleges neither. The allegation of trespass to the person is consistent with an allegation of false imprisonment alone.
36 In oral submissions, Mr King of counsel for the applicants did seem to press a case of "trespass upon the person". However, he said that he characterised the false imprisonment as a trespass. He was correct in the latter respect. He said that he did not accept counsel for the respondents' characterisation of the reference in paras 6 and 7 to "trespass upon the first applicant" as an "assault".
37 The ASC is confusing. It should be amended to plead clearly the elements of battery or assault or false imprisonment or two or all three of these, according to Mr Whittaker's actual allegations. Since "trespass to the person" covers all three, that expression, in the interests of clarity, should not be used unless it is made clear at the same time which of the three forms of trespass to the person is alleged.
38 The fourth and last criticism of paras 6, 7, 12 and 13 relates to the claim of trespass to Mr Whittaker's goods. In their submissions the respondents offer the following definition of trespass to goods:
Trespass to goods is an act of the defendant which directly and either intentionally or negligently disturbs the plaintiff's possession of a chattel. Such a trespass may be constituted by taking goods out of the plaintiff's possession, moving them from one place to another or causing damage to them.
Unfortunately the respondents do not acknowledge the source of this quotation.
39 The point that the respondents make is that the applicants contend only that the Commonwealth "directed that the carrier discharge the Applicant's [sic] luggage including his equipment and tools of trade from the aircraft…".
40 The giving of a direction is not trespass to the luggage, equipment and tools of trade. Facts would need to be pleaded, if they can be, showing that the Commonwealth was liable for the carrier's conduct. Facts must be pleaded showing that the Commonwealth directly interfered with Mr Whittaker's luggage.
41 Paragraphs 6 and 7 also allege that the Commonwealth, by its servants and agents "seized the First Applicant's passport and boarding pass for Flight SQ232, and retained his travel documents including his passport and boarding pass". It is not clear whether this allegation is also relied upon as supporting a trespass to Mr Whittaker's goods. The respondents do not attack this part of the pleading. It is not subject to the criticism that there was merely a direction to a third party (such as the carrier) to do something. It should, however, be made clear, one way or the other, whether a trespass to goods is being alleged in respect of the passport, boarding pass and "travel documents" (if there are travel documents apart from the passport and boarding pass). The notion of trespass to Mr Whittaker's "personal property" is too vague, having regard to the fact that the expression follows immediately upon the reference to luggage, equipment and tools of trade.
42 For the above reasons, paragraphs 6, 7, 12 and 13 should be struck out, but with leave to replead.