Young v Cooke

Judgment 1MEAGHER JA: Subject to one minor qualification I agree with the orders proposed by Justice Emmett and the reasons he gives for the making of those orders. That qualification is that in his reasons his Honour referred to an access gate which may have provided pedestrian access into and from Mr Young's property. In his written submissions in reply Mr Young maintains that this gate provided access only to an adjacent property and was not an entrance to or exit from his property. However, whether this gate provided such access was not relevant to the primary judge's conclusion, which turned on whether there was another reasonable means of egress from the property and that means was, as Mr Young conceded in his submissions to the Court, through or under the fence to his property. Accordingly, the real issue before the primary judge was the one which has been referred to and dealt with in Justice Emmett's reasons. 2The respondents apply for their costs of the application. Mr Young submits that the fact that he is representing himself and that he may or will not be able to pay the costs provide a reason or reasons for not making an order that costs should follow the event. In my view those two matters do not provide any reason for departing from the usual order that costs follow the event. Accordingly, I order that the applicant pay the respondents' costs of the motions. 3The orders of the Court are as announced by his Honour Justice Emmett and me in relation to costs. 4EMMETT JA: There is before the Court an application for an extension of time within which to file a summons for leave to appeal and a summons seeking leave to appeal. The applications are made in respect of orders made by the District Court on 23 November 2011. There were some twenty orders made on that day. The present applications relate to four of the orders. 5By order 4, the primary judge ordered that a statement of claim be struck out, but that limited leave to replead be given in respect of certain causes of action alleged in the statement of claim. By order 5, his Honour directed that certain claims be dismissed and were not to be repleaded. One of those was the claim identified as the seventh cause of action, being alleged unlawful imprisonment. By order 15, the plaintiff in the proceeding was ordered to pay the costs of each defendant of their respective motions for summary dismissal. By order 16, his Honour ordered that those costs were to be paid forthwith upon agreement or assessment. 6By the applications presently before the Court, the applicant, Mr Gary Young, who was the plaintiff in the proceeding in the District Court, seeks leave to appeal on two grounds. The first ground is that the primary judge erred in the exercise of his discretion by awarding costs that were to be paid immediately, instead of making them costs in the proceeding. The second ground is that his Honour erred in striking out the cause of action for unlawful imprisonment. In order to put those prospective grounds of appeal in context, it is necessary to say something more about the allegations made by Mr Young. 7The statement of claim was clearly not prepared by a qualified lawyer. That is not intended to be overly critical of Mr Young, who is not a qualified lawyer. The statement of claim alleges seven causes of action. The Court is concerned only with the seventh of those causes of action, which is described as "unlawful imprisonment". 8In relation to the sixth cause of action, which is described as "conversion of plaintiff's personal property", Mr Young alleged that, in or about July or August 2010, certain of the defendants in the District Court proceeding cut locks to gain entry to Mr Young's land. It is then alleged that the chains that were cut were re-joined with "locked plastic cable ties or with closed links", thereby unlawfully imprisoning Mr Young. 9The specific allegation of unlawful imprisonment incorporated those paragraphs and then asserted that the acts of re-locking Mr Young's gates "either by cable tie or closed steel links in such a manner after leaving [his] property while [he] was still on the pro[p]erty, amount[ed] to wilful detention of [him] and prevented him from leaving his property, or [the] lawful use of his property, until he could arrange to release himself from his property". The statement of claim asserted that the re-locking of the gates with cable ties or closed steel links was done without Mr Young's consent. It then said that the re-locking of the front gates in chains with plastic cable ties or closed steel links was done without authority of law and without a warrant. The statement of claim then asserted that the acts recited in the previous causes of action amounted to false imprisonment of Mr Young and were a wilful detention of Mr Young without his consent and without authority of law, such as to amount to an unlawful imprisonment of Mr Young. 10The defendants sought summary dismissal of the statement of claim. The primary judge, after detailed argument, made orders that included the orders described above. His Honour was relieved of the obligation of giving detailed reasons. I assume that that was on the basis that his reasoning was apparent from the argument that took place during the hearing. 11In the course of the hearing before the District Court, the defendants made reference to a decision of the Court of Appeal of the Supreme Court of Victoria in which the question of false imprisonment was considered: see McFadzean v Construction, Forestry, Mining & Energy Union [2007] VSCA 289. From that decision, some principles emerge (at [41]-[42], [85]-[86], footnotes excluded): "[t]he essence of the action of false imprisonment is the compelling of a person to stay at a particular place against his or her will. Accordingly, where a plaintiff has full knowledge and comprehension of the defendant's coercive conduct amounting to total restraint, the action depends upon proof that, were it not for the defendant's conduct, the plaintiff would not have submitted to the restraint. Consequently, it is not sufficient in law that conduct of the defendant have contributed to or influenced the plaintiff's decision to remain unless the conduct has overborne the plaintiff's will. It must be shown that, but for the defendant's conduct, the plaintiff would not have yielded to the total restraint" ... [a]lthough the idea of false imprisonment is sometimes expressed in terms of a restriction on liberty which must be total, that does not mean that a restriction short of lock and key may not be actionable. In each case, it is a question of fact as to whether a restriction is so severe as to be characterised as false imprisonment. For example, if a victim is confined to an island, and the only means of egress is by swimming through dangerous waters to the mainland, there is no reasonable means of egress and the victim's confinement to the island is likely to amount to false imprisonment. If, however, there is a reasonable means of egress or escape from detention, the restriction may not be enough. So, if a victim is confined to a room, and there is a reasonable means of egress through a door, the victim is in effect free to leave the room and there is no false imprisonment" ... [f]alse imprisonment is the complete deprivation of liberty although ... something short of confinement under lock and key may constitute false imprisonment. All that may be required is that the victim be constrained to remain at the will of the wrongdoer. However, a mere partial interference with freedom to travel by one route as opposed to another does not compel a person to remain. The person is free to leave by the other route. In circumstances where complainants are free to leave a camp site by means of a bush track, the bush track may be a reasonable means of egress. So long as there is some means of leaving the area of the alleged confinement, there will be no complete deprivation of liberty. Where a claimant is not compelled to go in a given direction against his will but is merely prevented by leaving by a particular route, that is not sufficient to constitute false imprisonment". 12Some circumstances clearly do not constitute false imprisonment. Other circumstances will cause reasonable minds to differ as to whether they constitute false imprisonment. At the other end of the spectrum, there are yet other circumstances that clearly constitute false imprisonment. The question is whether the circumstances of the present case fall between the two extremes, where reasonable minds may differ, or are at the extremity where one can say that the facts clearly do not constitute false imprisonment. 13In the course of argument, Mr Young suggested that the primary judge was by no means certain at the outset that he had no pleadable cause of action. His Honour observed that, so far as the allegations of fact made in the statement of claim were concerned, no cause of action was established. However, the real question was whether Mr Young should be shut out completely from his claim. That is to say, the question was whether he should be given a chance to replead his case. Counsel for one of the defendants indicated that, on the facts that had been asserted by Mr Young, his case could get no stronger. 14The essence of Mr Young's complaint today is that, while the facts alleged in the statement of claim do not constitute false imprisonment, there were other circumstances that would lead to the conclusion that, because of his particular circumstances, he was, in effect, imprisoned. The allegation is that one or other of the defendants cut the chain that secured his front gate, through which vehicular access was possible. Next to that gate was a pedestrian access, which was not at any time locked. Having gone through the vehicular gate, the defendants engaged in activities on Mr Young's land that are not presently relevant and then went back through the vehicular gate and secured it with plastic ties in the manner alleged in the statement of claim. 15The essence of Mr Young's complaint is that, when he drove his vehicle to the vehicular gate, he could not drive through and could not turn his vehicle. He therefore had to walk some 500 metres back to his house to obtain the means of cutting the plastic ties. Having done that, he was able to cut them, and was then able to drive through the gate in his vehicle. His allegation before this Court is that, while for an ordinary person it may have been perfectly open to leave Mr Young's land, it was not open to Mr Young to do so because, in order to get to Goulburn, the nearest town, it would have been necessary to walk some twenty kilometres. It was not suggested that that was unreasonable for a normal person. However, the allegation is that Mr Young did not have the capacity to walk twenty kilometres because of incapacity resulting from a previous injury. 16In his summons seeking leave to appeal, Mr Young asserts that he was in a vehicle accident and underwent two operations on his back, as a result of which he was unable to walk twenty kilometres to Goulburn. It was necessary for him to cut the ties before he could leave using his vehicle. That theme is repeated on several occasions in the outline of the nature of Mr Young's case. He asserts that his case on appeal revolves around the denial by the District Court of his application to replead his cause of action for unlawful imprisonment, in circumstances where, because of previous injury, he was not able to walk the twenty kilometres to town from the remote location of his property. 17The problem for Mr Young in that assertion, however, is that that fact, that is, his alleged incapacity to walk twenty kilometres, was never raised in the course of the hearing before the primary judge. At several stages during the course of argument before this Court, Mr Young suggested that the primary judge had cut him off and had not allowed him to make that assertion. However, he was unable to take the Court to any part of the transcript of the hearing that would support that contention. Indeed, the material to which we were taken leads to a contrary conclusion. 18In dealing with the seventh cause of action, the unlawful imprisonment, his Honour discussed with Mr Young the circumstances that he alleged constituted the unlawful imprisonment, namely, the locking of the gate with plastic ties. Mr Young described the plastic ties as being about ten or fifteen pieces of plastic and that one needed an instrument to cut through them. He claimed that he was detained because he could not leave his property. That discussion might have been the opportunity for Mr Young to say that he could only leave his property by means of a vehicle. He did not suggest that to the primary judge. His only assertion was that he was in the middle of nowhere and that his liberty was restrained by reason of the securing of the gate by the plastic ties. 19Mr Young accepted that he could get through the fence, but stated that he still had to walk twenty kilometres to town. He accepted that he only had to walk back to his house to get a pair of scissors to cut the ties. He said, however, that while he was doing that he was detained. Again, the opportunity was not taken at that point in the discussion to say that, because of his previous injury, he could not walk twenty kilometres to Goulburn. 20At that stage, the primary judge indicated some reservation about shutting Mr Young out from any attempt to replead the cause of action. His Honour then heard further from counsel for one or more of the defendants and observed that he was being asked by the defendants to take Mr Young's case at its highest. At its highest, Mr Young's allegation was that he was locked in, in the sense that the chain was around the post and he had to cut it to get out. His Honour observed that it was necessary that he be satisfied that that could not amount to a total deprivation of liberty. 21Mr Young's response was that, effectively, it was as if he were stranded on an island with his boat, his only means of egress, locked to a post. He could not open the gate to get his car out and his car was his only means of egress from the remote location of his property. Once again, Mr Young made no attempt at that point to indicate to his Honour that his circumstances were different from those of an ordinary person because of the incapacity arising from his earlier injury. Rather, when asked by the primary judge as to whether there was anything else that he wanted to put in relation to the alleged cause of action, Mr Young responded that he only wanted to say something with respect to costs. His submission was that the costs should be costs in the proceeding. 22Having heard from Mr Young, his Honour said that he proposed to strike out the statement of claim in its entirety in relation to each of the causes of action and require repleading of any causes of action that he was not prepared to conclude should be dismissed in their entirety. Having dealt with the other causes of action, his Honour then came to the question of unlawful imprisonment and said that he was satisfied that the circumstances alleged by Mr Young could not, under any circumstances, be a total deprivation of liberty in accordance with the authorities. 23Counsel for one of the defendants indicated that he wanted to say something further. His Honour said that there was no need to do so and that he would not allow the alleged unlawful imprisonment to be pleaded, having concluded that, on the facts alleged and asserted by Mr Young, there could not be any false imprisonment. 24I am not persuaded that his Honour erred in the conclusion that he reached. It may be, and I express no firm view about it, that Mr Young could plead some further facts, additional to those asserted in the statement of claim and asserted before the primary judge, that could amount to false imprisonment. He did not make any allegations before the primary judge that could constitute false imprisonment. In those circumstances, there was no error on the part of the primary judge in declining to allow Mr Young the opportunity of repleading. So far as his Honour was concerned, repleading would simply have involved a restatement of the mere fact that the vehicular gate was locked, but that there was no restraint on pedestrian departure from Mr Young's property. 25The striking out of the statement of claim and the refusal of leave to replead would appear to be properly characterised as interlocutory orders. As such, they would not give rise to any issue estoppel or res judicata in relation to the question of whether, on some different facts that might be alleged by Mr Young, there was an unlawful false imprisonment. The relevant events appear to have occurred considerably less than three years ago. There is no reason why Mr Young, if he were so advised, could not commence a fresh proceeding. There may well be a question as to whether he would be allowed to prosecute the proceeding so long as costs were outstanding. That, however, is not a matter that is presently before the Court. In the circumstances, I would not be disposed to grant leave to appeal against the orders of the District Court striking out the statement of claim and refusing leave to replead the false imprisonment cause of action. 26The second matter before the Court concerns the exercise of the discretion of the primary judge in relation to the making of costs orders. As I have indicated, his Honour ordered Mr Young to pay the costs of the defendants of their respective motions. Mr Young makes no complaint about that order. However, he complains about the exercise of discretion in making an order that the costs be paid forthwith upon agreement or assessment. Mr Young complains that the exercise of discretion miscarried. He appears to assert that one consequence of the order is that he may be deprived of the opportunity of prosecuting his proceeding. It is not entirely clear that that is, in fact, the basis upon which he puts the matter. Regardless, that does not appear to have been the basis upon which it was put to the primary judge. The presumption is that, where costs in relation to an interlocutory proceeding are ordered, the payment of the costs awaits the final disposition of the proceeding. The rationale for such a regime is that the unsuccessful party in the interlocutory matter may ultimately succeed and obtain costs against the other party. In those circumstances, it would be appropriate that the costs be set off. 27The defendants applied under r 42.7 of the Uniform Civil Procedure Rules for the making of order 16. The primary judge was referred to the principles to be applied in considering the exercise of discretion under r 42.7. The presumption referred to above, that payment of costs in relation to an interlocutory proceeding awaits the final disposition of the proceeding, may be displaced and the discretion to do so is wide and unfettered. On the other hand, the discretion must, of course, be exercised judicially. In the end, the demands of justice are the only determinants of whether an order should be made varying the rule that interlocutory costs are to be paid only after the final disposition of the proceeding. 28There are various circumstances in which the discretion has been exercised. One circumstance in which costs might be ordered to be paid immediately, and that appears to have impressed itself upon his Honour, is where the interlocutory decision relates to the determination of a discrete or self-contained question and there is likely to be some delay in the conclusion of the proceeding. In the course of argument, his Honour referred to the position of unrepresented litigants, observing that that circumstance should make no difference. On the other hand, his Honour observed that it sometimes makes a difference, because unrepresented litigants often, as his Honour said, "[d]o not know what they are doing" and, in some circumstances, have spurned legal advice for their own purposes. 29That seems to have been a charge levelled at Mr Young, although Mr Young responded that "spurn" was not the right word. He said that it was a question of how much costs are involved in litigating. There was then some interchange between his Honour and counsel for one or other of the defendants, as to the fact that the order that he had foreshadowed was to strike out the false imprisonment cause of action without leave to replead. That order disposed of that issue so far as this proceeding was concerned. When his Honour invited submissions from Mr Young, there was a further exchange as to the difference between the costs of defending a proceeding and the costs of prosecuting a proceeding as plaintiff. Mr Young asserted that he had, in effect, commenced the proceeding by way of defence, although he rejected the suggestion that it was a "pre emptive strike". In any event, his Honour was persuaded that, in the circumstances, it was appropriate to make an order under r 42.7. 30It is fair to characterise the effect of the order made by the primary judge concerning the false imprisonment cause of action as the determination of a separately identifiable matter. The striking out of the statement of claim as a whole effectively ended the proceeding, until such time as Mr Young exercised any right reserved to him to replead some of the claims. However, in relation to the claim of false imprisonment, that was the end of the matter so far as the proceeding before the primary judge was concerned. 31It is not entirely clear what the underlying reason for his Honour's exercise of discretion was. However, no complaint is made about that because Mr Young did not require detailed reasons. Nevertheless, the conduct of Mr Young, and his motivation for bringing the proceeding, was a matter that seems to have been a consideration for his Honour in the exchange to which I have referred. 32I am not persuaded that there was any error of principle in the exercise by the primary judge of his discretion in directing that the defendants have leave to assess their costs and have them paid forthwith. That is not to say that some other judge may not have come to a different conclusion in the particular circumstances of this case. That, however, is not the question. It is incumbent upon Mr Young to persuade the Court that it is at least arguable that there was a wrong exercise of discretion and that the exercise of discretion miscarried. I do not consider there is any basis for such a contention. 33In all of the circumstances, I would refuse any extension of time for leave to appeal, although that, I do not think, is really the issue. In any event, I would refuse leave to appeal from the orders of the District Court.