These proceedings arise out of the alleged wrongful arrest, conviction of and subsequent appeal by the plaintiff ("Mr Divis") and other events which occurred between 2015 and 2017. The proceedings are related (in some way) to proceedings being pursued by Mr Divis' wife, Anita Roth (No. 2017/304194). The proceedings are running together in terms of case management and involve somewhat similar issues although the events which give rise to the claims by Mr Divis and Ms Roth are different. Mr Divis and Ms Roth have commenced proceedings against 33 defendants being judicial officers, police officers, sheriffs' officers and witnesses.
There are motions before the Court filed on behalf of a number of defendants seeking that the proceedings be dismissed and/or that the statement of claim be struck out, and a motion filed on behalf of the plaintiff filed on 22 June 2018, pursuant to which Mr Divis seeks to "proceed with the statement of claim". Mr Divis and Ms Roth are not legally represented. They have previously been legally represented, although only for a brief period. There was a referral from Lonergan J on 29 August 2018 for pro bono legal assistance. At a directions hearing on 15 February 2019 Mr Bartley SC appeared with Mr Williams.
I was informed by Mr Divis and/or Ms Roth on 1 October 2019 that those legal representatives that have previously appeared or previously advised Mr Divis and Ms Roth are no longer appearing or advising them. I asked whether Mr Divis and Ms Roth were intending to seek legal representation. They informed the Court that they did not have legal representation and were not intending to seek legal representation. I understand from what was said that Mr Divis and Ms Roth believe that lawyers will not represent them in their "claim against the government".
Mr Divis seeks the sum of $40 million on the basis that he has suffered "harm" as a result of conduct which he attributes to "wrongdoers", being persons associated or responsible for his arrest, conviction and period in custody. Ms Roth seeks the sum of $3 million in respect of the harm which she alleges she has suffered consequent upon conduct towards their son when he was arrested and held at Penrith Police station for a period of four hours, as well as in relation to subsequent events. There has been some confusion as to the basis on which Ms Roth is claiming in the sense that until the hearing on 1 October 2019, it was not clear whether Ms Roth was purporting to act as the tutor of their son, Igor Davis, or sue in her own right for the harm that she has suffered. She made it clear on 1 October 2019 that she was suing in her own right for her own harm. Indeed she alleged that any confusion was in some way brought about by the conduct of the legal representatives of the defendants.
Much of what I say is applicable to both cases. However, I have decided to record separate judgements because the reasons for the decision are a little different and, in the end, the events which give rise to the claims are different. It is just that both Mr Divis and Ms Roth are seeking substantial sums based on allegations of wrongful arrest and subsequent events.
As I have said Mr Divis and Ms Roth are representing themselves. I questioned them at the commencement of the hearing as to whether they understood that the application by the defendants was that their proceedings be dismissed. They agreed that they did. They did not seek an adjournment and expressly stated that they would not be seeking legal representation. They both spoke English, although Ms Roth was the more fluent. Other than maintaining that they did not always understand the legal points, it was my impression that they did not have any difficulty understanding what was being said. They had no difficulty understanding my questions although they did not always answer them.
The motions have been on foot since 8 June 2018 and 22 June 2018. I thus indicated at the hearing that I would be determining them. I intend in both cases to make my decisions as clear as possible for the benefit of Mr Divis and Ms Roth, although I emphasise that irrespective of whether they are familiar with what they describe as technical legal points or whether they understand the legal processes, they are bound by the same principles and are not entitled to continue on with proceedings relying on statements of claim that do not properly identify the facts, the causes of action or the relief sought, merely because they are unrepresented. They are not entitled to pursue claims against defendants which have no reasonable prospects of success, no matter how they are described.
[2]
Background to Mr Divis' proceedings
Evidence has not yet been served and it is difficult to understand precisely what occurred involving Mr Divis back in 2015 and 2017 merely from the statement of claim or proposed amended statement of claim. Having said that, Mr Divis' grievance and claim relates to charges pursued against him in respect of the use of a recording device in Court and alleged assault of law enforcement officers in the execution of their duty. He also faced some fines in respect of driving whilst unlicensed and not wearing a helmet whilst riding a bicycle as well as resisting arrest.
It is Mr Divis' assertion that, although he was convicted and spent some time in custody, he was ultimately found "to be innocent" by the District Court. He says that having been found to be innocent he is a "wronged man" and that he has suffered "harm" as a result being wronged. The nature of the harm is not pleaded or particularised. He did not suggest that he had developed a recognised psychiatric illness, consequent upon these events.
[3]
Proceedings
By way of a statement of claim filed on 9 October 2017, Mr Divis seeks, what I understand to be a form of damages, in respect of what he describes as trespass and doing wrong and causing harm. He originally named 22 defendants. The defendants are either judicial officers, court officers, police officers or witnesses. Mr Divis now accepts that he cannot succeed against seven of those defendants and seeks to discontinue against those seven defendants. He now wishes to rely on an amended statement of claim. He identified the document in which he wishes to rely as being the amended statement of claim, exhibited to the affidavit of Raphael Hudson dated 27 September 2019 (Exhibit H) at page 10 behind tab 9 in the Court book with which he was provided. He also wishes to rely on the document entitled "Pleadings Attachment" at page 18 of Exhibit H. Again, Ms Roth adopted the same approach in that she seeks to amend the statement of claim but relies primarily on another document entitled "Pleadings Attachment".
No defences have yet been filed.
[4]
Conduct of the Proceedings
Following service of the statement of claim, the Crown Solicitor's office, on behalf of a number of the defendants, wrote to Mr Divis asserting that he would need to amend the statement of claim, in part, because it was not in proper form but also because he could not possibly succeed against a number of the defendants, having regard to the principle of judicial immunity and s 9B of the Law Reform (Vicarious Liability) Act 1983 ("the Act") which relates to issuing proceedings directly against Police officers. Mr Divis declined to take up that invitation and has since that time declined to amend the statement of claim in any substantial way other than by adding the Pleadings Attachment and proposing to discontinue against seven defendants.
The matter has been before the Court on a number of occasions including before Registrar Bradford and Lonergan J. On the last page of this judgement is a chronology of appearances before the Court. Mr Divis was first directed to file an amended statement of claim by Registrar Bradford on 6 February 2018. The matter was case managed by Lonergan J. Her Honour made a number of orders, ultimately leading to the hearing of the applications on 1 October 2019. Her Honour directed that Mr Divis receive legal assistance pursuant to the Pro Bono Scheme. He availed himself of that legal assistance. Senior and Junior Counsel appeared at a directions hearing on his behalf. He has informed the Court that the reason that he is proposing to discontinue against seven defendants is because of the advice he has received.
Mr Lee, instructed by the Crown Solicitor's Office on the applications on 1 October 2019, appeared for the first, second, third, fourth, fifth, ninth, tenth, 21st and 22nd defendants and as amicus for all the other defendants. Due to the failure of Mr Divis to properly identify the basis on which he is suing each of the defendants, it has been difficult to understand the role played by each defendant, but for the purposes of the pleadings I understand that the defendants, on whose behalf Mr Lee does not specifically appear, are Police officers.
I have the power to make orders in respect of the conduct of proceedings generally, including the dismissal of proceedings, even though the Police officer defendants have not appeared in the proceedings. As I state later in this judgement, Mr Divis is not entitled to proceed directly against the Police officers, having regard to s 9B(2) of the Act. Mr Divis was informed of this by the Crown Solicitor's Office by letter dated 28 November 2017. He was first granted leave to amend the statement of claim on 6 February 2018. He has declined to do so. He was provided with written submissions and given an opportunity to make both written and oral submissions on all of the issues arising on these applications. He was given an opportunity during the course of the hearing on 1 October 2019 (by virtue of a short adjournment) to review the documents provided to him (which had been provided to him prior to the hearing).
The nature of the orders sought by Mr Divis on his motion was not clear. Accordingly, at the outset of the hearing, I asked Mr Divis about the orders he was seeking and he confirmed that he was seeking leave to file the amended statement of claim and discontinued against seven defendants.
The defendants opposed leave being granted to file the amended statement of claim. The parties made written and oral submissions on why leave should or should not be granted. I asked Counsel for the defendants to make oral submissions on the central reasons why he was submitting that the proceedings should be dismissed or struck out so that Mr Divis could hear those submissions, rather than the defendants merely relying on their written submissions. I asked Mr Divis to listen to the submissions, as he would be given an opportunity to respond and indicate why I should not dismiss or strike out the proceedings at this time.
[5]
Principles to be applied
The Court has power to allow a party to amend any document on which it relies at any stage of the proceedings. Whether the Court should do so would necessarily depend, amongst other things, on the nature of the proposed amendments and any prejudice to the other parties. The Court will not allow a plaintiff to amend a statement of claim, if to do so would be an exercise in futility because the amendments would not cure defects in the existing statement of claim.
The defendants seek orders dismissing the proceedings pursuant to r 13.4 of the Uniform Civil Procedure Rules 2005 ("the Rules") or, in the alternative, orders striking out the statement of claim pursuant to r 14.28 of the Rules.
The defendants also seek that the statement of claim be struck out for want of due despatch. I would not strike out the statement of claim on this basis. The matter has been case-managed and at least in part the delay has been caused by Mr Divis seeking legal advice and legal representation. Further, the parties were ready to proceed on 1 October 2019 and the matter proceeded to a full hearing of all of the motions on that day.
As set out in r 13.4 of the Rules, if in any proceedings it appears to the Court that in relation to the proceedings generally or in relation to any claim for relief in the proceedings, the proceedings are frivolous or vexatious or no reasonable cause of action is disclosed or the proceedings are an abuse of process of the Court, the Court may order that the proceedings be dismissed generally or in relation to that claim.
Proceedings will only be dismissed at this stage if they are so obviously untenable that they cannot possibly succeed or they are manifestly groundless or faulty or disclose a case which the Court is satisfied cannot succeed (General Steel Industries v Commissioner for Railways (NSW) [1964] 112 CLR 125 at [128]). It may be an abuse of process if the plaintiff is pursuing proceedings with no prospects of success. Whether the Court is asked to dismiss a case under the Rules or under its inherent jurisdiction the Court will look not merely at pleadings deficiencies or weaknesses in the case. The fundamental principle is that a plaintiff is entitled to have his case come to trial. However, a plaintiff is not entitled to continue to pursue a case that has no real prospects of success, having regard to the allegations made. I emphasise that I would not, at this stage, be determining the factual accuracy of the allegations made or making any findings on the truth of any assertions raised by Mr Divis.
In the alternative, the Court has power to strike out pleadings such as the statement of claim on the basis that the statement of claim discloses no reasonable cause of action or has a tendency to cause prejudice, embarrassment or delay or is otherwise an abuse of the process of the Court. Leaving aside matters relating to form, which might in part be excused in some circumstances, it is necessary for a plaintiff to plead the material facts with a sufficient degree of specificity so that the other party is able to understand the case it has to meet (Fleet v Royal Society for the Prevention of Cruelty to Animals [2007] NSWSC 1420 at [24]). The pleading is embarrassing if it is unintelligible and ambiguous or so imprecise that the other party does not have proper notice of the allegations made against it and is unable to properly file a defence. There is an abuse of process if the pleading does not disclose any cause of action which could possibly succeed.
In some circumstances it may be appropriate to strike out a pleading or parts of a pleading and give liberty to amend but in this matter the plaintiff has been given an opportunity since February 2018 to amend the original statement of claim. As I have said, he now seeks to do so, relying on the document which he identified in Court. He does so in circumstances in which he has at least been given written notice by the defendants, as early as 2017, as to their allegations as to the deficiencies in the statement of claim.
[6]
Result / Outcome
The hearing of the applications on 1 October 2019 proceeded on the basis that the plaintiff was seeking to rely on the amended statement of claim with the attached pleading document and that irrespective of the defendants' applications he would be discontinuing against seven defendants. The defendants' written submissions addressed the original statement of claim. The defendants' oral submissions addressed the reasons why I should not grant leave to amend the statement of claim, being primarily that irrespective of the pleading deficiencies, Mr Divis could not succeed against the remaining defendants in any event.
Both the original statement of claim and the proposed amended statement of claim suffer from significant deficiencies.
There is not:
1. proper identification of the basis on which a defendant is sued;
2. proper identification of the role that each defendant allegedly played in causing harm to Mr Divis;
3. proper identification of any cause of action against each defendant; or
4. sufficient particularisation of material facts.
It is necessary that any statement of claim properly identify these matters. Essential to any originating process is sufficient clarity and particularisation so that the defendant knows the case that he or she has to meet. It is incumbent upon a defendant to admit matters that should be admitted but both the statement of claim and the proposed amended statement of claim will hardly allow the defendants to determine what they should admit and what they should not admit or deny.
It is significant that Mr Divis seeks money from 22 separate defendants (now reduced by 7). As I understand Mr Divis' submissions, each of the defendants played a different role in the harm that he says he has suffered and each of the defendants are thus liable to him for different "wrongs". It is not sufficient merely to use words such as "trespass" or "malicious prosecution" or "wrongful arrest". It is necessary to plead material facts giving rise to such causes of action and set out the basis on which the alleged conduct of each defendant would necessary ground each cause of action.
In my view, in any application pursued under r 14.28 of the Rules, regard must be had to the fact that the plaintiff is unrepresented in the sense that some allowance must be made for any regular form, formatting or degree of imprecision but the fact that Mr Divis is representing himself does not excuse him from proper identification of the matters to which I have already referred.
In the circumstances, the appropriate course would have been to refuse to grant leave to amend the statement of claim, having regard to its form and lack of content, and strike out the original statement of claim. Granting leave to amend the statement of claim merely to formalise the discontinuance against those seven defendants would be an exercise in futility as the amended statement of claim suffers from many of the deficiencies of the original statement of claim.
In any event it is not necessary that I strike out the statement of claim in accordance with r 14.28 of the Rules, as I propose to dismiss the proceedings in accordance with r 13.4 for the following reasons.
I propose to dismiss the proceedings because I consider that:
1. the statement of claim or proposed amended statement of claim discloses no reasonable cause of action against the defendants;
2. Mr Divis has no real prospects of success; and
3. the claims made by him are untenable.
Put simply, I am dismissing the proceedings because I consider that, as a matter of law, he will not succeed against the defendants that he is now seeking to sue. I emphasise that I am not making any assessment of the harm that Mr Divis says he has sustained or making any decision on any matters of fact that he might be alleging. It is not necessary to do so.
In his original statement of claim, Mr Divis listed 13 members of the New South Wales Police Force as defendants. He has now reduced the number of Police officers he wishes to claim from but the principle remains the same. As he was informed of by the Crown Solicitor's Office, by letter addressed to him dated 28 November 2017, Police officers should not be named as defendants in the statement of claim. He was entitled to name the State of New South Wales as a defendant and plead that the State is vicariously liable of the conduct of the Police officers. He has chosen not to avail himself of the opportunity to so amend the statement of claim.
There is a difficulty in that Mr Divis does not necessarily specify the causes of action on which he relies in his pleading, but as far as I can determine, any cause of action against the Police officers would be an action in tort. As set out in s 9B of the Act, a person may not, in any legal proceedings, make a Police tort claim against the Police officer concerned but may instead make the claim against the Crown. Mr Divis is thus precluded from suing the Police officers directly in a tort claim. He has been informed of this by the Crown Solicitors as early as 2017. He seeks to file an amended statement of claim which continues to name Police officers as defendants in respect of such claims. The claims against the Police officers should be dismissed as Mr Divis has no real prospects of success against those Police officers irrespective of any findings of fact as to whether there might be a basis for any tortious claim against them.
Defendants one, two, three, four and five in Mr Divis' proposed amended statement of claim (being defendants 3, 4, 9, 10 and 14 in the original statement of claim) are judicial officers. For the purposes of the Judicial Officers Act 1986 ("the Judicial Officers Act") a judicial officer includes a magistrate: s 3 of the Judicial Officers Act. The five judicial officers against whom Mr Divis wishes to continue his action have the same protection and immunity as a Judge of the Supreme Court as in the performance of his or her duties as a Judge: s 44B the Judicial Officers Act. Judicial immunity is conferred by the common law. It is immunity from suit for any judicial act done within jurisdiction: D'Orta-Ekenaike v Victorian Legal Aid (2005) 223 CLR 1; Mills v State of New South Wales [2016] NSWSC 1547.
The allegations against each of the judicial officers relate to the performance of their duties as judicial officers, specifically in the way in which they perform those duties. Those five defendants are subject to judicial immunity and Mr Divis has no cause of action against them. As such, his claims against them, are untenable.
I should also point out that the origin of Mr Divis' grievance or complaint is that he says that he was wrongfully arrested on the basis that he was not presented with the arrest warrant as set out in s 101 of the Law Enforcement (Powers and Responsibilities) Act 2002. The arresting officer was entitled to act in accordance with an arrest warrant whether or not the warrant was in his possession at the time of the actual arrest. The source of Mr Divis' grievance against some of the Police officers is unsustainable.
The other two remaining defendants are Sheriffs' officers. The case against them is not properly pleaded. No cause of action is identified. Mr Divis alleges that they made false statements relating to an allegation of assault. Mr Divis was afforded an opportunity to identify the legal basis on which he was suing the defendants. He declined to do so, rather, focusing on the harm suffered by him. It is not the Court's function to identify a cause of action for him or imagine one that he might pursue. I am unable to anticipate how he might succeed against those two Sheriffs' officers, irrespective of the allegations of fact contained in the proposed amended statement of claim. If they are witnesses they are protected by witness immunity.
For these reasons I would also dismiss the proceedings against the 11th and 12th defendants (in the proposed amended statement of claim).
In all of these circumstances the proceedings are untenable against all of the defendants against whom Mr Divis now wishes to proceed.
I thus order that the proceedings be dismissed pursuant to r 13.4 of the Rules.
I also would have struck out the statement of claim pursuant to r 14.28.
There is no utility in granting Mr Divis leave to file an amended statement of claim as the amended document suffers from the same deficiencies and does not overcome the defences available to the defendants.
I will hear from the parties on costs.
[7]
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Decision last updated: 04 October 2019