A (a pseudonym) v Simone McGurk Minister for Department of Communities - [2020] WADC 146

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION:   PERTH
CITATION:   A (a pseudonym) -v- SIMONE MCGURK Minister for Department of Communities [2020] WADC 146
CORAM:   LEMONIS DCJ
HEARD:   4 & 28 MAY 2020
DELIVERED          :   25 NOVEMBER 2020
FILE NO/S:   CIV 1733 of 2019
BETWEEN:   A (a pseudonym)
First Plaintiff
B (a pseudonym)
Second Plaintiff
AND
SIMONE MCGURK Minister for Department of Communities
First Defendant
DIONNE HAYES-THOMPSON
Second Defendant
MICHELLE ROBERTS Minister for Western Australia Police Force
Third Defendant
OFFICE OF THE DIRECTOR OF PUBLIC PROSECUTIONS
Fourth Defendant

Catchwords:

Appeal from decision of deputy registrar giving the plaintiffs leave to amend their statement of claim

Legislation:

Children and Community Services Act 2004 (WA)
District Court Rules 2005 (WA)
Police Act 1892 (WA)
Rules of the Supreme Court 1971 (WA)

Result:

Appeal allowed

Representation:

Counsel:

First Plaintiff	:	In person
Second Plaintiff	:	In person
First Defendant	:	Mr J T Bishop
Second Defendant	:	Mr J T Bishop
Third Defendant	:	Mr J T Bishop
Fourth Defendant	:	Mr J T Bishop

Solicitors:

First Plaintiff	:	Not applicable
Second Plaintiff	:	Not applicable
First Defendant	:	State Solicitor's Office
Second Defendant	:	State Solicitor's Office
Third Defendant	:	State Solicitor's Office
Fourth Defendant	:	State Solicitor's Office

Case(s) referred to in decision(s):

A v New South Wales [2007] HCA 10; (2007) 230 CLR 500
Beckett v New South Wales [2013] HCA 17; (2013) 248 CLR 432
Brett Cattle Company Pty Ltd v Minister for Agriculture [2020] FCA 732
Calabro v The State of Western Australia [No 3] [2014] WASC 84
Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47; (2000) 203 CLR 194
Commercial Union Assurance Co of New Zealand Ltd v Lamont [1989] 3 NZLR 187
Commonwealth Life Assurance Society Ltd v Brain (1935) 53 CLR 343
Field v Nott (1939) 62 CLR 660
Galloway v Minister for Health [No 2] [2015] WADC 119
Hospitals Contribution Fund of Australia v Hunt (1982) 44 ALR 365
Kenny v Sholl (1905) 7 WALR 197
Moder v Commonwealth of Australia; Sochorova v Commonwealth of Australia [2012] QCA 92
Northern Territory of Australia v Mengel [1995] HCA 65; (1995) 185 CLR 307
Porter v OAMPS Ltd (No 2) [2005] FCA 729
Tanwar Enterprises Pty Ltd v Cauchi [2003] HCA 57; (2003) 217 CLR 315
The State of Western Australia v Cunningham [No 3] [2018] WASCA 207
Thorne v Kennedy [2017] HCA 49; (2017) 263 CLR 85
Wentworth v Rogers (No 5) (1986) 6 NSWLR 534

LEMONIS DCJ:

This is an appeal from the decision of Deputy Registrar Hewitt made 19 December 2019 giving the plaintiffs leave to file an amended statement of claim in the form of a minute dated 24 November 2019 and filed 26 November 2019.
The appeal is brought pursuant to r 15 of the District Court Rules2005 (WA) (DCR).
The appeal is by way of a hearing de novo. Rule 15(6) of the DCR provides that an appeal from a registrar to a judge 'is to be by way of a new hearing of the matter that was before the registrar'. This requires the appellate body to exercise its powers whether or not there was error at first instance.[1]
[1] Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47; (2000) 203 CLR 194 [14].
The plaintiffs, A and B, are self‑represented. In the action, they each make claims for malicious prosecution and unconscionable conduct. The action arises from criminal proceedings brought against B for alleged sexual offending against his stepdaughter, and allied Children's Court proceedings. B was found not guilty after trial and the Children's Court proceedings were ultimately discontinued.
The allegations made by A are directed to the conduct of officers from the Department of Communities alleged to have initiated and maintained the Children's Court proceedings. The allegations made by B are directed to the conduct of officers from the Department of Communities, and of police officers alleged to have initiated the prosecution of B. The Department of Communities now encompasses what was previously known as the Department for Child Protection and Family Support.
It is useful to first set out the background to these proceedings.
The writ of summons was filed on 10 May 2019. It initially included a claim against the Office of the Director of Public Prosecutions, which was identified as the fourth defendant. However, there is no such entity and at the directions hearing held on 19 December 2019, the deputy registrar directed that the claim against the fourth defendant be dismissed. Such an order has not yet been made.[2] I will make an order to that effect as part of the orders disposing of this appeal.
[2] ts 67.
On 1 July 2019 the plaintiffs filed their first statement of claim which was dated 26 June 2019.
On 12 July 2019 Deputy Registrar Hewitt suspended the requirement for the defendants to file and serve a defence until further order.
On 11 July 2019 the plaintiffs filed an amended statement of claim dated 10 July 2019 and on 17 July 2019 the defendants, represented by the State Solicitor's Office, applied to strike out the statement of claim in its entirety and for judgment to be entered for the defendants.
On 31 October 2019 Deputy Registrar Hewitt ordered that the statement of claim be struck out and that the plaintiffs file and serve a minute of proposed amended statement of claim within 28 days.
The plaintiffs filed the required minute of proposed amended statement of claim on 26 November 2019, which minute is the subject of the appeal now before me.
On 19 December 2019 Deputy Registrar Hewitt gave the plaintiffs leave to amend the statement of claim in terms of the minute filed 26 November 2019, with such minute to stand as the amended statement of claim. It is the deputy registrar's decision made on 19 December 2019 against which the first, second and third defendants appeal.
The grounds of appeal contend that the statement of claim in the form allowed by the deputy registrar:
(a)does not disclose a reasonable cause of action; and
(b)may prejudice, embarrass or delay the fair trial of the action.
The resolution of the appeal requires the consideration of a number of legal issues which are not necessarily straightforward. As the plaintiffs are self‑represented, I will provide a summary at the end of these reasons as to the effect of my findings.

General principles

As a starting proposition, where litigation is brought by litigants in person, courts should approach the peremptory termination of their litigation with special care. Courts should ensure that there is no viable cause of action. Further, if there is a viable cause of action which with appropriate amendment of the pleading and a little assistance from the court could be put into proper form, such assistance should be offered.[3]
[3] Wentworth v Rogers (No 5) (1986) 6 NSWLR 534, 536 - 537.
There are in effect two aspects of the defendants' appeal. First, that the statement of claim does not disclose an arguable cause of action by each plaintiff against each defendant. Second, the generalised nature of the statement of claim is such that the defendants are not able to ascertain with sufficient clarity or precision the substance of the allegations that are put against them.
A significant (but not exhaustive) aspect of the defendants' contention that the statement of claim does not disclose a reasonable cause of action is the contention that there is no arguable basis for a claim against each of the Ministers, respectively named as the first and third defendants.
The principles applicable to an application to strike out a claim on the ground it does not disclose a reasonable cause of action are well known and do not need to be explored in detail for the purposes of this application. They apply to an application for leave to amend a statement of claim. It is sufficient for present purposes to observe that for the defendants to succeed on this ground, they must establish that the causes of action propounded by A and B are unarguable.[4] Furthermore, a court at first instance should be careful not to risk stifling the development of the law by summarily rejecting a claim where there is a reasonable possibility that, as the law develops, it will be found that a cause of action will lie.[5]
[4] Civil Procedure Western Australia, vol 1 [20.19.6].
[5] Hospitals Contribution Fund of Australia v Hunt (1982) 44 ALR 365, 373 ‑ 374.
In respect of the second ground relied upon by the defendants, namely that the statement of claim will 'prejudice, embarrass or delay the fair trial of the action', two principal matters need to be addressed. Obviously, these matters only arise where an arguable claim is made out.
The first matter is that the statement of claim needs to recount each plaintiff's allegations in a manner which enables the defendants to know the substance of the allegations made against them. In the case of self‑represented litigants, this does not require the statement of claim to use what might be regarded as more traditional legal language, or to identify claims in terms of their orthodox legal formulation. Rather, it is sufficient if the statement of claim uses plain everyday language to convey the matters about which the plaintiffs complain.
The second matter concerns the making of inconsistent claims, which is a matter about which the defendants complain here. That there are inconsistent claims does not by itself make the statement of claim embarrassing,[6] however the facts to support inconsistent claims should be separately pleaded.[7] Further, whether the pleading of inconsistent claims warrants the striking out of a pleading is very much dependent upon the particular circumstances of each case. For example, those circumstances include whether a plaintiff is putting forward inconsistent factual scenarios concerning a subject matter that is within their own personal knowledge, or whether a plaintiff is putting forward different propositions as to which defendant is responsible for the result about which that plaintiff complains. The former may more readily lead to a finding of embarrassment, compared to the latter.
[6] See Civil Procedure Western Australia, vol 1 [20.19.11].
[7] Kenny v Sholl (1905) 7 WALR 197, 203.
With these general principles in mind I now turn to the statement of claim.

Statement of claim and points of claim

When the matter first came before me on 4 May 2020, I was of the view the statement of claim contained a number of generalised allegations which made it difficult for the defendants to ascertain the substance of the particular allegations being made against each defendant. That being so, I directed the plaintiffs to file a further document, being points of claim addressing the following for each of A and B:[8]
[8] ts 147.
In respect to the malicious prosecution claim, firstly, what are the proceedings, the subject of that claim?
Secondly, in respect of each defendant, first, what did that defendant or their Department do to instigate the proceedings?
Second, on what basis is it alleged that defendant or their Department acted maliciously?
Third, on what basis is it alleged that defendant or their Department acted without reasonable cause - reasonable and probable cause?
Fourthly, what loss and damages are claimed against that defendant?
And fifthly, in respect of [A], on what basis is it contended the proceedings were resolved favourably to her?
I'm also going to direct [A] to provide points of claim in respect of additional claims regarding her children as follows.
In respect of possible additional claims concerning the execution of the warrant and the interview of [A]'s children, [A] is to set out firstly, who that claim is brought against.
Secondly, what harm was suffered by each child?
Thirdly, what matters are relied on to support the claim including whether it's contended the actions taken were unlawful and if so, why?
The requested points of claim were filed on 18 May 2020 and then a further hearing was held on 28 May 2020. Subsequent to that second hearing, at my request, the defendants filed further written submissions which are dated 23 June 2020.

Fundamental foundations for the plaintiffs' claim

Each plaintiff's claim as currently formulated rests on two separate and distinct foundations:
1.A claim for malicious prosecution.
2.A claim for unconscionability.
I will deal first with the claim for malicious prosecution.

Malicious prosecution – elements

In the High Court decision in Beckett v New South Wales,[9] the majority judgment identified the elements of the tort of malicious prosecution in these terms:[10]
The wrong for which the tort provides redress is the malicious instigation or maintenance of the prosecution of the plaintiff without reasonable and probable cause. The elements of the tort are set out in A v New South Wales. In summary, the plaintiff must prove four things: (1) the prosecution was initiated by the defendant; (2) the prosecution terminated favourably to the plaintiff; (3) the defendant acted with malice in bringing or maintaining the prosecution; and (4) the prosecution was brought or maintained without reasonable and probable cause. A v New South Wales considered the third and fourth of those elements. One aspect of that consideration which assumes importance in this appeal is the discussion of the temporal dimension of the tort: proof of the absence of reasonable and probable cause directs attention to the state of affairs at the time the defendant is alleged to have instigated or maintained the prosecution. Evidence bearing on the existence of reasonable and probable cause is confined to the material available to the defendant at the time the prosecution was commenced or maintained.
(citations omitted)
[9] Beckett v New South Wales [2013] HCA 17; (2013) 248 CLR 432.
[10] Beckett v New South Wales [4].
In respect of B, the relevant proceeding is the criminal prosecution brought against him, which went to trial in this court, and in respect of which he was found not guilty on all counts. In respect of A, the relevant proceeding is the Children's Court proceeding pertaining to the custody of her and B's children and stepchildren. The defendants did not submit on this appeal that it is unarguable that the Children's Court proceeding constitutes a prosecution against A.[11]
[11] ts 133.
In respect of the elements of the tort of malicious prosecution, there are two issues of real contention on this appeal. First, who is regarded at law as being responsible for initiating a prosecution for the purposes of the tort of malicious prosecution. Second, whether or not it is arguable on the material contained in the statement of claim as reformulated by the points of claim that those defendants who arguably initiated the relevant prosecution did so without reasonable and probable cause.
I will first address the issue of who may be regarded as initiating the relevant prosecution.

Initiation of prosecution

The requirement for the purposes of the tort of malicious prosecution that a relevant defendant initiate the prosecution does not necessitate that the defendant be in fact the prosecutor, although of course that would be sufficient.
In this appeal, the issue as to who is regarded at law as being responsible for initiating a prosecution arises in two contexts. First, in what circumstances can a party other than the actual prosecutor be regarded as initiating a prosecution? Second, whether, and if so in what circumstances, more than one person can be treated as having initiated the prosecution.
During argument, the defendants' counsel took me to the decision of the New Zealand Court of Appeal in Commercial Union Assurance Co of New Zealand Ltd v Lamont,[12] where the court considered the circumstances in which a person can be said to have initiated a prosecution, even though that person is not the prosecutor.
[12] Commercial Union Assurance Co of New Zealand Ltd v Lamont [1989] 3 NZLR 187.
Commercial Union Assurance involved a claim for malicious prosecution brought against an insurance company. The appeal was from a jury decision in a civil trial, finding for the plaintiff who had brought the claim for malicious prosecution. The Court of Appeal decision considered whether the defendant insurance company had procured the prosecution of the plaintiff, Mr Lamont, who had lodged an insurance claim arising out of a fire which he lit on his property and as a result of which a building was destroyed. Ultimately, Mr Lamont was charged with attempting to obtain money from the insurance company, Commercial Union, through false pretences. Mr Lamont was discharged on the charge on the ground there was no case to answer. He then brought proceedings for malicious prosecution against Commercial Union. The principal appeal ground was directed to whether the trial judge in his directions to the jury may have left the jury with the impression that even if the police reached an independent decision to prosecute Mr Lamont, Commercial Union could still be the prosecutor. Each of the three members of the court delivered separate reasons for decision and were unanimous that there had been a material misdirection to the jury in that respect.
As a consequence of this finding, a further issue which arose on the appeal was whether or not there was sufficient evidence that could lead to a finding by a jury that Commercial Union was liable for the institution of the criminal proceedings against Mr Lamont such that the matter should be sent back for a new trial. This turned on whether there was sufficient evidence that could lead to a finding by a jury that Commercial Union initiated the prosecution against Mr Lamont.
As Barker J observed, and as is illustrated by the judgment of Richardson J, there is a plethora of authority on the concept of 'who is a prosecutor'. In the judgment of Barker J, his Honour referred to the decision of Commonwealth Life Assurance Society Ltd v Brain[13] where Dixon J stated:[14]
The legal standard of liability for a prosecution which is instituted neither by the defendant nor by his servant is open to criticism on the ground of indefiniteness. It is clear that no responsibility is incurred by one who confines himself to bringing before some proper authority information which he does not disbelieve, even although in the hope that a prosecution will be instituted, if it is actually instituted as the result of an independent discretion on the part of that authority (Danby v Beardsley (1880) 43 LT 603; Fanzelow v Kerr (1896) 14 NZLR 660). But, if the discretion is misled by false information, or is otherwise practised upon in order to procure the laying of the charge, those who thus brought about the prosecution are responsible (Pandit Gaya Parshad Tewariv Sardar Bhagat Singh (1908) 24 TLR 884; Black v Mackenzie [1917] NZLR 729). Further, the Privy Council has said in a judgment delivered by Lord Dunedin:—'In any country where, as in India, prosecution is not private an action for malicious prosecution in the most literal sense of the word cannot be raised against any private individual. But giving information to the authorities which naturally leads to prosecution is just the same thing. If that is done and trouble caused an action will lie'. Their Lordships, however, held in the case before them that, as the information supplied to the police was ample cause for the initiation of prosecution proceedings, the plaintiff must, in order to succeed in his action, go the whole way of showing that it was false to the defendant's knowledge (Balbhaddar Singh v Badri Sah (1926) The Time, 17 March, p 5, a case containing dicta apparently inconsistent with the decision of this Court in Davis v Gell (1924) 635 CLR 275). The rule appears to be that those who counsel and persuade the actual prosecutor to institute proceedings or procure him to do so by dishonestly prejudicing his judgment are vicariously responsible for the proceedings. If the actual prosecutor acts maliciously and without reasonable and probable cause, those who aid and abet him in doing so are joint wrongdoers with him.
[13] Commonwealth Life Assurance Society Ltd v Brain (1935) 53 CLR 343.
[14] Commonwealth Life Assurance Society Ltd v Brain (379).

Further, as McMullin J put it in his Honour's judgment at pages 207 ‑ 208:
But in some cases the person who supplied the information to the police maybe regarded as the prosecutor even though the information was not laid by him. The person may be regarded as the prosecutor if, inter alia, he puts the police in possession of information which virtually compels and officer to lay information; if he deliberately deceives the police by supplying false information in the absence of which the police would not have proceeded; or if he withholds information in the knowledge of which the police would not prosecute it.
The extracts from the judgments in Commercial Union Assurance which I have set out recognise that, depending on the particular circumstances, a person other than the named prosecutor can be regarded as having initiated the criminal proceedings for the purposes of the tort of malicious prosecution. Whether or not they did initiate the prosecution depends upon the role they played in bringing it about. So, for example, where the initiation of the prosecution is said to arise from the supply of information to the police, did the supplier of that information know it to either be false, or materially inadequate, and not bring that falsity or inadequacy to the attention of the police?
Ultimately, the members of the court in Commercial Union Assurance disagreed as to whether there was sufficient evidence that could lead to a finding by a jury that Commercial Union was liable for the institution of the criminal proceedings against Mr Lamont. Richardson and Barker JJ held there was sufficient evidence. McMullin J held there was not. The analysis undertaken in Commercial Union Assurance demonstrates the subtleties involved in an assessment of whether an allegation that a particular person initiated the subject prosecution is 'unarguable'.
Having reviewed the authorities referred to in Commercial Union Assurance, I am satisfied the authorities permit each plaintiff to allege that persons other than the named prosecutor initiated the proceedings brought against each of them. A relevant question for the purposes of this appeal is whether, having regard to the allegations made by each plaintiff, such persons arguably include any of the current defendants.
In addition, during oral argument in respect of B's claim, the defendants' counsel advanced the proposition that if a first party sets in train a procedure which results in the prosecution, yet the initiation of the prosecution itself is due to the independent act of another, for example a police officer, the first person is not liable. A key aspect of this proposition is that the latter act must be an independent act. Consistently with Barker J's analysis in Commercial Union Assurance at page 211, for a latter act to have the characteristic of independence, in my view, it is at least arguable that the latter act must be uninfluenced by the earlier acts of those who initially set in train the procedure which led to the prosecution.
The defendants in their supplementary written submissions referred to the judgment of Goldberg J in Porter v OAMPS Ltd(No 2)[15] as support for the proposition that where a party sets in train the prosecution, that party is only liable where they have overborne the discretion of the prosecuting authority. The relevant passage states at [18]:
In substance the applicant must plead facts which demonstrate that the relevant prosecuting authority's discretion was overborne by the respondents. The applicant is required in substance, where there has been an independent prosecuting authority which initiates the prosecution, to establish that such independent discretion was overborne by the respondents and that, in substance, the prosecuting authority did not exercise any independent discretion in bringing the prosecution.
[15] Porter v OAMPS Ltd (No 2) [2005] FCA 729.
However, as the defendants' counsel observes in his supplementary written submissions, where a person provides false or misleading information to the prosecuting authority, that authority is incapable of exercising an independent discretion.[16]
[16] Defendants' supplementary written submissions dated 23 June 2020, par 13(c).
It seems to me that for the defendants' argument to ultimately succeed, the latter decision by the police officer or officers to charge B would need to be unaffected by the conduct of the Department of Communities' officers about which B complains. So, as Barker J put it in Commercial Union Assurance, the decision to prosecute was an independent act uninfluenced by the conduct alleged against the Department of Communities' officers.[17]
[17] Commercial Union Assurance (211), line 35.
In my view, whether or not the subsequent decision made to prosecute B was uninfluenced by the conduct alleged against officers of the Department of Communities is a matter for trial. In that respect, I am dealing here with whether or not the claims are arguable. Whether or not an independent discretion was exercised in the manner described in Commercial Union Assurance or Porter is very much a factual issue.
A further matter which is raised by the defendants in their supplementary written submissions is whether B can bring a claim for malicious prosecution both against officers from the Department of Communities and also the police officer or officers who brought the prosecution. At the very least, if such claims are arguably made out, they may be alternative claims. I am not aware of any requirement in the circumstances of this case that B elects which claim he pursues. That is, B can bring the claims as alternative claims.
The question which then arises is whether a joint claim can be made, that is against officers from the Department of Communities and also the police officers. The defendants' counsel in his supplementary written submissions contends that officers from the Department of Communities and also the police officers cannot both be liable. In making this submission, the defendants' counsel quite properly referred to the judgment of Dixon J in Brain, where his Honour stated:[18]
The rule appears to be that those who counsel and persuade the actual prosecutor to institute proceedings or procure him to so by dishonestly prejudicing his judgment are vicariously responsible for the proceedings. If the actual prosecutor acts maliciously and without reasonable and probable cause, those who aid and abet him in doing so are joint wrongdoers with him.
[18] Brain (379).
This passage suggests that those who counsel and persuade the actual prosecutor, and also the actual prosecutor themself, can all be liable for a claim for malicious prosecution, depending on the particular circumstances. The defendants suggest that this statement has application to the unique circumstances of Brain, and does not have general application. However, there are no further authorities which address that position either way.
Furthermore, where a latter party joins in the acts of another, such that they in effect adopt those acts, the latter party, at least arguably, is not exercising a discretion independent of the first party. In such a case, the latter party is not independent at all. There would therefore be no apparent reason why the first party would cease to be liable, upon a latter party joining in the wrongdoing which the first party put in place.
On the current state of the authorities, in my view, if B can make out an arguable claim that the police officer or officers who brought the prosecution against him acted maliciously and without reasonable and probable cause, and those police officers in effect adopted or joined in the conduct of officers from the Department of Communities who also acted maliciously and without reasonable and probable cause, B is not precluded at the pleading stage from making a claim against all such officers involved. That is, he can at the pleading stage make the claim against the officers from the Department of Communities and the police officers.
I turn now to identify the possible class of defendants to any arguable claim of each plaintiff.

Possible class of defendants to an arguable claim

Assuming either plaintiff can make out an arguable claim for malicious prosecution, a threshold issue that arises in respect of this application is, which persons may arguably be liable in respect of that claim.
The allegations made by each plaintiff are directed to the conduct of officers from the Department of Communities and also in respect of B, the police officers alleged to have initiated the prosecution against him.
As matters presently stand, the defendants are the Minister for the Department of Communities; Ms Hayes‑Thompson, an officer of the Department of Communities; and the Minister for the Western Australian Police Force. For present purposes, I will proceed on the premise that the ministerial designation is correct, that is, the description accurately describes the ministerial responsibility which the Minister has.
The plaintiffs do not allege that either Minister separately exercised any discretion or engaged in any conduct by which the relevant proceedings were instituted. Rather, the Ministers are joined as being liable for the conduct of the officers employed by the relevant department for which the named Minister has ultimate responsibility. In this respect, by way of contrast, in Galloway v Minister for Health [No 2][19] the Minister was potentially liable because by default he constituted the board of directors of the Swan District Hospital. There is no such additional feature that arises in this case.
[19] Galloway v Minister for Health [No 2] [2015] WADC 119.
As the defendants point out in their supplementary outline of submissions, the Ministers do not have any direct liability in respect of the conduct complained of against the officers from the Department of Communities and the police officers. So, for example, in respect of the police officers' conduct, it is the Crown (that is the State of Western Australia) that might be liable, presuming there is an arguable claim and also presuming s 137 of the Police Act 1892 (WA) does not preclude such a claim being brought against the State.
Further, in respect of the conduct of the officers of the Department of Communities, it is the State which might be liable if there is an arguable claim, such liability arising at common law.
Accordingly, the manner in which the claims are presently brought against the responsible Ministers does not give rise to an arguable claim by either A or B against the first and third defendants.
That being so, the next question that arises is against whom such a claim can be brought. It seems to me there are three possible arguable classes of defendants:
1.The officers from the Department of Communities whom the plaintiffs allege engaged in the offending conduct.
2.The police officers who initiated the prosecution against B.
3.The State of Western Australia.
In respect of the officers from the Department of Communities, s 246(1) of the Children and Community Services Act 2004 (WA) precludes civil action being brought against such officers in respect of anything that the officer has done in good faith. Section 246(1) would therefore not apply in respect of a claim for malicious prosecution, a requisite element of that claim being that the officer has acted maliciously and thus not in good faith.
Similarly, in respect of police officers, s 137(4) of the Police Act precludes an action in tort being brought against a police officer where the relevant officer has acted 'without corruption or malice'. Again, such a provision would not apply in respect of a claim for malicious prosecution.
Accordingly, on this analysis, claims for malicious prosecution can arguably arise against the relevant officers involved, subject of course to the requisite elements of the tort also being arguably identified.
The position as to the potential liability of the State of Western Australia has to be considered separately having regard to the provisions of the Children and Community Services Act and the Police Act.

Potential liability of the State

Children and Community Services Act

Section 246 of the Children and Community Services Act provides for protection from liability for wrongdoing. In full, it provides:
246. Protection from liability for wrongdoing
(1)A civil action does not lie against a person for anything that the person has done, in good faith, in the performance or purported performance of a function under this Act.
(2)The protection given by subsection (1) applies even though the thing done as described in that subsection may have been capable of being done whether or not this Act had been enacted.
(3)Despite subsection (1), the State is not relieved of any liability that it might have for another person having done anything as described in that subsection.
(4)A person who, at the request of a police officer or an authorised officer, assists the officer in the exercise of a power under this Act is to be taken, for the purposes of this section, to be performing a function under this Act.
(5)In this section, a reference to the doing of anything includes a reference to the omission to do anything.
The key provision for current purposes is s 246(3). The defendants contend that the effect of s 246(3) is that the only scenario where the State may be liable for an officer's conduct is where the relevant officer acted in good faith in the performance or purported performance of a function under the Children and Community Services Act. In that scenario, a claim against the officer is precluded by s 246(1), but pursuant to s 246(3) the State is not relieved of any liability it might have. The defendants contend that the circumstances set out in s 246(1) set the field for the circumstances in which the State might be liable: only where the subject officer has acted in good faith. The effect of this submission is that s 246(3) extinguishes any claim against the State which arises in circumstances where the relevant officer was not acting in good faith.
Section 246(3) does not create any liability in the State; rather s 246(3) preserves any liability which the State may have for an act of another person where a claim cannot be brought against that person personally because they acted in good faith. In this respect, s 246(3) is to be contrasted with s 137(5) of the Police Act, which expressly provides:
The Crown is liable for a tort that results from -
(a)anything done by a member of the Police Force, without corruption or malice, while performing or purporting to perform the functions of a member of the Police Force …
The effect of s 246(3) is that the State's liability for the conduct of another person is not relieved by reason of that person themself not being liable by reason of the application of s 246(1). Accordingly, in circumstances where the State might be liable for the conduct of a particular officer engaged in under the Children and Community Services Act, the State remains so liable, even though the officer is not personally liable by reason of the operation of s 246(1). Understood in this way, s 246(3) does not operate to extinguish existing claims. Instead, it preserves claims against the State even though the responsible officer is not themselves liable. It follows in my view that s 246(3) does not operate in the limiting way in which the defendants contend.
The second question which must then be considered is in what circumstances can the State be liable. The defendants' counsel in their supplementary submissions referred to the judgment of Dixon J in Field v Nott[20] where his Honour stated:[21]
When a public officer, although a servant of the Crown, is executing an independent duty which the law casts upon him, the Crown is not liable for the wrongful acts he may commit in the course of his execution. As the law charges him with a discretion and responsibility which rests upon him in virtue of his office or of some designation under the law, he alone is liable for any breach of duty. The Crown is not acting through him and is not vicariously responsible for his tort.
[20] Field v Nott (1939) 62 CLR 660.
[21] Field v Nott (675).
As the defendants acknowledge in their written submissions:[22]
The extent to which the Crown is liable for the actions of its servant, the public officer, is determined by the discretion and responsibility being exercised by that public officer.
[22] Defendants' supplementary submissions dated 25 May 2020, par 14.
It seems to me therefore that the extent to which the State may be liable is affected by factual considerations as to the nature of the actions which the relevant officer was undertaking.
Further, during argument, I raised with the defendants' counsel whether the State could be liable for the collective acts of the responsible officers. That is, whether the State could be liable even if the individual responsible officers themselves were not. However, reflecting further on that issue, the relevant state of mind required in respect of the tort of malicious prosecution is that of the person initiating or maintaining the prosecution. In my view, this does not permit the concept of the State being liable for composite conduct of more than one officer, in circumstances where those officers themselves were not liable. This outcome is consistent with the observations of the Queensland Court of Appeal in Moder v Commonwealth of Australia[23] concerning a claim for misfeasance in public office, where Margaret Wilson AJA (with whom the other members of the Court agreed) stated:[24]
Paragraph 13(a) of the statement of claim seems to be an allegation that bad faith can be inferred from the multiplicity of errors by the department and the MRT over seven years. However, a case of misfeasance in public office cannot be built upon a foundation that is a composite of the conduct of a number of individual officers, let alone a department or a statutory tribunal.

Police Act

[23] Moder v Commonwealth of Australia; Sochorova v Commonwealth of Australia [2012] QCA 92.

[24] Moder v Commonwealth of Australia [73].

Section 137(5) of the Police Act provides:
The Crown is liable for a tort that results from -
(a)anything done by a member of the Police Force, without corruption or malice, while performing or purporting to perform the functions of a member of the Police Force, whether or not under a written or other law;
Section 137(5) was the subject of detailed consideration in TheState of Western Australia v Cunningham [No 3].[25] An issue arose during oral argument on this appeal whether the reference in s 137 of the Police Act to the Crown picked up the State of Western Australia. It seems to me from having considered the judgment of Buss P and Murphy JA in Cunningham that their Honours were of the view that the State of Western Australia was interchangeable with the Crown insofar as s 137 applied.[26]
[25] TheState of Western Australia v Cunningham [No 3] [2018] WASCA 207.
[26] Cunningham [129] - [130].
As to the operation of s 137(5), Buss P and Murphy JA stated:[27]
Section 137(5) is directed to the protection of members of the public who suffer loss or damage consequent upon the tortious conduct of police officers insofar as it makes the Crown 'liable for a tort that results from … anything done by [the police officers] without corruption or malice' whilst performing or purporting to perform their functions. Section 137(5), in effect, gives the victims of tort redress against the State in circumstances where the police officer has acted without malice or corruption. The provision imposes a positive liability. It is to be understood in the context of the operation of s 137(3), referred to above. Its principal purpose is, evidently, to abrogate the common law rule that the Crown is immune from liability for the tortious conduct of police officers in the performance, or supposed performance, of the powers and duties imposed on them by law, insofar as the common law rule would apply to circumstances where the police officers have acted without corruption or malice.
[27] Cunningham [129].

Accordingly, s 137(5) creates a separate basis for a claim against the State. It does not extinguish any existing common law claims, to the extent they may exist. However, as noted in the extract above, the common law rule is that the State is immune from liability for the tortious conduct of police officers in the performance or supposed performance of the powers and duties imposed on them by law, insofar as the common law rule would apply to circumstances where the police officers have acted without corruption or malice.
A claim for the tort of malicious prosecution cannot be brought against the State under s 137(5) in respect of the conduct of the police officers, as the requisite element of malice brings such a claim outside the requirement contained within s 137(5) that the officers acted without corruption or malice. Furthermore, as observed by Buss P and Murphy JA in Cunningham, the State is otherwise immune from liability for the tortious conduct of police officers in that capacity, remembering that a claim for malicious prosecution is a claim in tort.[28]

Conclusion regarding possible defendants

[28] Cunningham [108], [130].

For these reasons overall, my view is that:
1.An arguable claim for malicious prosecution does not arise in the circumstances of this case against the Minister responsible for the Department of Communities and the Minister for Police, that is, the first and third defendants respectively.
2.An arguable claim may arise against the responsible officers from the Department of Communities, depending on what particular role they had and what steps they took.
3.Whether or not the State can be liable for the conduct of those officers depends upon the nature of the allegations made against the officers, so for present purposes I will not rule in respect of that issue.
4.An arguable claim for malicious prosecution might arise against the police officer or officers responsible for initiating the prosecution against B, assuming an arguable claim against them is made out. However, the State is not liable for the police officers' conduct.

Reasonable and probable cause

Before turning to the specifics of each claim, it is useful to also address the element of the tort that the relevant defendant acted without reasonable and probable cause.
During oral submissions, the defendants' counsel referred to the High Court decision of A v New South Wales[29] where their Honours stated at [38]:
… In so far as one element of the tort concerns reasonable and probable cause, the question is not abstract or purely objective. The question is whether the prosecutor had reasonable and probable cause to do what he did: not whether, regardless of the prosecutor's knowledge or belief, there was reasonable and probable cause for a charge to be laid. The question involves both an objective and a subjective aspect.
[29] A v New South Wales [2007] HCA 10; (2007) 230 CLR 500.
Further, their Honours stated at [40]:
Similarly, where a plaintiff alleges that a prosecutor acted maliciously, that is, for an improper purpose, not for the purpose of carrying the law into effect, the circumstances of the prosecution may determine the nature of the case the plaintiff will seek to make. Absence of reasonable and probable cause may, in a given case, be evidence of malice; but there are two separate issues to be decided.
(citations omitted)
What emerges from these passages is that the relevant question is whether the prosecutor had reasonable and probable cause to do what he did, not whether regardless of their knowledge or belief, there was reasonable and probable cause. Further, the reasonable and probable cause must be assessed at the point in time of the relevant conduct.
I now turn to consider each of the separate claims brought by each plaintiff. I will start with A, as she is the first plaintiff.

Claims for malicious prosecution made by A

The relevant proceeding in respect of A is the proceeding brought pursuant to the Children and Community Services Act concerning the child against whom it was alleged B sexually offended. Such a proceeding is an application for a protection order pursuant to s 44 of the Children and Community Services Act. Section 44 provides that only the chief executive officer (CEO) can make an application for a protection order. The CEO is the chief executive officer of the department which principally assists the Minister in the administration of the Children and Community Services Act. The relevant application must state which of the grounds contained in s 28(2) are relied upon for the application. Here, the application was brought on the grounds set out in s 28(2)(c)(ii) and (iii), namely that the subject child has suffered, or is likely to suffer, harm as a result of sexual abuse or emotional abuse.[30]
[30] Affidavit of the first plaintiff sworn 9 May 2019, attachment 'MS40'.
The defendants did not contend that it is unarguable that such proceedings constitute a prosecution against A.[31]
[31] ts 133.
During oral argument, A appeared to accept that her complaint is directed to the continuation of the proceedings, not their instigation. As I intend to order the plaintiffs to file a further statement of claim, it is not at this stage necessary to determine whether A's claim should be limited only to the continuation of the proceedings. Rather, I will direct A to make clear in the statement of claim whether her claim is directed to the instigation, as well as the continuation, of the proceedings.
At the hearing of the matter on 28 May 2020, the defendants' counsel did not submit that it was unarguable that the proceedings terminated favourably to A.[32] That is, the defendants' counsel did not submit that the second element of the tort as identified in Beckett was not arguably made out. Further, the defendants' counsel accepted that it was at least arguable that there was malice by the second defendant.[33] I understood the position to be that at a general conceptual level malice was arguable, however the generality (amongst other matters) of the allegations was such that the statement of claim should not be permitted to proceed in the current form.
[32] ts 164.
[33] ts 170.
The critical issues that then arise in respect of A are:
(a)who are the possible defendants;
(b)is it arguable that defendant initiated the subject proceeding; and
(c)is it arguable that defendant acted without reasonable and proper cause.

A's claim against the first defendant

I have held that A's claim against the first defendant is not arguable, because in the circumstances of this case the Minister is not liable for the conduct alleged by A against the officers from the Department of Communities. A will need to consider whether she wishes to bring a claim for malicious prosecution against any other officer from the Department of Communities in addition to the second defendant. If A does wish to bring such a claim, she will need to identify which particular officer or officers and what it is alleged that officer or officers did, or did not do, to give rise to the claim sought to be made against that officer.

A's claim against the second defendant

In respect of the second defendant, point 2.1 of A's points of claim alleges that the second defendant was the initial case worker who brought the matter to the Children's Court. A's points of claim in respect of the first defendant alleged that the Department of Communities instigated the proceedings in the Children's Court.
In my view, it is open to A to contend on the material contained within the statement of claim and the points of claim that the second defendant as the initial case worker initiated and/or continued the Children's Court proceedings. In this respect, as part of the allegations made that the second defendant acted maliciously, A alleges that the court application was filed by the second defendant and that the second defendant continually put false and misleading details into the affidavits filed with the court. These matters are capable of giving rise to an inference that the second defendant initiated the proceedings within the meaning of that concept as outlined in the authorities I have addressed in these reasons.
However, it seems to me that a number of the matters upon which A can rely to substantiate an allegation that the second defendant initiated the proceedings are found under different headings of A's points of claim. Accordingly, in addition to having A identify whether her claim is directed to the instigation, as well as the continuation, of the proceedings, I will also direct that A identify the specific matters upon which she relies for the allegation that the second defendant instigated and/or maintained the proceedings.
In respect of the element of acting without reasonable and probable cause, in my view, it is open on the material that an allegation can be made against the second defendant that she acted without reasonable and probable cause by reason of the inadequacy of the investigation conducted and, to use the words contained in point 2.3 of the points of claim, 'rushed to judgment and embarked on a path where anything and everything that didn't fit her proposed outcome was disregarded'.
It seems to me that proceeding in a manner whereby the subject person initiates or maintains the proceedings knowing that the relevant allegations have not been properly investigated and further, deliberately ignoring any material which contradicted the allegations, is at least arguably sufficient to satisfy the element of acting without reasonable and probable cause.
I accept that the current form of the allegations made by A against the second defendant need clarification and greater precision. A concern raised by the defendants with the current points of claim is that at point 2.3, A makes the allegation that the second defendant proceeded in the Children's Court despite any evidence to support the claims. The defendants submit that such a plea is embarrassing because A's affidavit filed in these proceedings refers to an affidavit filed in the Children's Court, thus there was evidence before the Children's Court. Further, point 2.3 alleges that the second defendant did not investigate any of the complainant's claims, whereas the substance of what A alleges is that the investigations undertaken by the second defendant were materially inadequate.
However, in my view, A's complaint can be fairly characterised as being one that the evidence submitted to the Children's Court was insufficient, not credible and arose out of an inadequate investigation conducted by the responsible officers. It seems to me that an allegation of that nature is one that may be arguable on the broader allegations currently put by A, accepting that there will need to be some refinement of those allegations and also a greater identification of the basis for them.
For these reasons overall, I am satisfied that A may have an arguable claim against the second defendant, subject to that claim being set out in a manner which enables identification of the key allegations made to support the claim.

A's claim against the third defendant

I have held that A's claim against the third defendant is not arguable, because in the circumstances of this case the Minister is not liable for the conduct alleged by A against the police officers. Further, on A's points of claim, it is not alleged that the police had any involvement in instigating or maintaining the Children's Court proceedings. Therefore, a claim for malicious prosecution does not arguably arise against any police officers.

Summary regarding A

In summary, in my view:
1.A does not have an arguable claim against the first defendant, being the minister responsible for the Department of Communities.
2.Whether or not A has an arguable claim against the State of Western Australia is a matter that requires further consideration once a further document is put on by A detailing her claims.
3.A may have an arguable claim against the second defendant, however this will require clarification and greater precision.
4.A does not have an arguable claim against the third defendant.
5.Further, A will need to consider whether she wishes to bring a claim against other officers from the Department of Communities, in addition to the second defendant. If A wishes to bring any such claims, she will need to identify which particular officer or officers and what it is alleged that officer or officers did, or did not do, to give rise to the claim sought to be made against that officer.

Claims for malicious prosecution brought by B

In respect of B, the defendants accept that it is arguable the criminal proceedings brought against him were resolved in his favour, namely by way of judgments of acquittal being entered.

B's claim against the first defendant

I have held that B's claim against the first defendant is not arguable, because in the circumstances of this case the Minister is not liable for the conduct alleged by B against the officers from the Department of Communities. B will need to consider whether he wishes to bring a claim for malicious prosecution against any other officer from the Department of Communities in addition to the second defendant. If B does wish to bring such a claim, he will need to identify which particular officer or officers and what it is alleged each officer or officers did, or did not do, to give rise to a claim for malicious prosecution against that officer.

Claim against the second defendant

The points of claim identify conduct alleged against the second defendant and other officers from the Department of Communities. On an initial read, the matters alleged against the Department of Communities appear to be more comprehensive than that alleged against the second defendant. As I intend to require B to file a further statement of claim, I will direct that he identify which, if any, of the allegations directed to the Department of Communities are said to arise from the second defendant's alleged conduct.
Having considered B's points of claim, it seems to me that for present purposes the substance of his claim regarding the conduct of the second defendant can be distilled as follows:
1.After having interviewed B's stepdaughter, there was not sufficient information to proceed with an allegation of sexual abuse against B, yet the second defendant did so.
2.The interviews which the second defendant conducted with the other of the plaintiffs' children did not corroborate that B had engaged in the sexual abuse of his stepdaughter.
3.Further, the interview with A did not provide any corroboration for such allegations.
4.The second defendant determined that B's stepdaughter was not a credible witness, yet still continued to press for charges to be brought against B.
5.The substance of what was alleged against B was in effect a repetition of pre‑planned assumptions prepared by officers of the Department of Communities prior to B's stepdaughter's interview. Further, what B's stepdaughter said in her statement substantially accords with what was contained in the assumptions. Therefore, it can be inferred that the allegations constitute the reassertion of what B's stepdaughter had been told to say, rather than her independent recollection of what had occurred.
6.The second defendant pre‑judged the allegations against B and did not seek to make any substantive independent assessment of them.
Of course, the matters that I set out above are, at present, mere allegations. In addition, they are not particularised with sufficient specificity to enable a defendant to respond to them. However, the purpose of the above analysis is to assist in assessing whether or not B has an arguable claim.
The defendants' counsel accepts that it is arguable that the second defendant initiated the prosecution of B.[34] The defendants' counsel also accepts that it is arguable that the second defendant acted with malice.[35] However, consistently with the defendants' observations regarding the pleading and points of claim overall, the defendants submit that the current allegations are at too high a level of generalisation.
[34] ts 179 - ts 180.
[35] ts 179 - ts 180.
In respect of the second defendant acting without reasonable and probable cause, in effect what B is alleging is that the information supplied by the second defendant to the police officers was insufficient, not credible, arose out of an inadequate investigation conducted by the responsible officers of the Department of Communities and in circumstances where the second defendant disregarded information which did not accord with B's guilt. In my view, when regard is had to the totality of such matters, they may be sufficient to maintain an arguable allegation that the second defendant acted without reasonable and probable cause in initiating the prosecution against B, presuming they were within her knowledge.
In respect of specific complaints made by the defendants, the defendants' counsel points to the reference on page 7 of the points of claim under point 2.3 to the second defendant proceeding with the case as a child sex abuse case despite 'no factual information' as being inconsistent with the balance of the points of claim, which detail the information relied on by the second defendant. However, in my view the reference to 'no factual information' should not be read literally, but should properly be understood as meaning no credible information.
At point 2.3 of the points of claim, it is alleged that the second defendant proceeded with the case against B after interviews with the other of the plaintiffs' children did not reveal any supporting evidence for the allegation of sexual abuse. The defendants contend the interviews are irrelevant, because they related to matters which were before the Children's Court. However, in my view the outcome of those interviews may arguably be relevant to a malicious prosecution claim. For example, I consider it is arguable that if it were the case that all children in their interview said that they had not noticed anything untoward occurring in the home, whether involving B's stepdaughter or at all, then knowledge by the second defendant of this is arguably a relevant factor in determining whether the she acted without reasonable and probable cause.
In relation to the allegation under point 2.3 that 'the complainant later stated that she was only saying what she was told to say', in my view the defendants rightly point out that much greater detail needs to be provided. However, because further detail is required does not mean that the substance of the allegation itself is not a relevant consideration for the purposes of B's claim for malicious prosecution. If B's stepdaughter's position is that the allegation she made was in effect one that she had been told to say, that on its face is of relevance to the claim, as it provides support for B's allegation that the substance of what was alleged against B was in effect a repetition of pre-planned assumptions prepared by officers within the Department of Communities.
For these reasons overall, I am satisfied that B may have an arguable claim against the second defendant, subject to that claim being set out in a manner which enables identification of the key allegations made to support the claim.

B's claims against the third defendant

I have held that B's claim against the third defendant is not arguable, because in the circumstances of this case the Minister is not liable for the conduct alleged by B against the police officers.
B will therefore need to consider whether he wishes to bring a claim for malicious prosecution against any particular police officers.
The critical allegation made in respect of the conduct of the police officers is that contained in the third paragraph on page 8 of the points of claim namely that:
Police acted solely on the advice of CPFS officers and without proper investigation as demanded by standard Police procedures.

If this allegation is made out, then arguably it could establish that the police officer or officers who initiated the prosecution against B acted without reasonable and probable cause.
B will need to consider whether he wishes to bring a claim against any particular police officer. If he does, he will need to identify which particular officer or officers and what it is alleged that officer or officers did, or did not do, to give rise to a claim for malicious prosecution against that officer.

Summary regarding claims for malicious prosecution brought by B

In summary, in my view:
1.B does not have an arguable claim against the first defendant, being the minister responsible for the Department of Communities.
2.B may have an arguable claim against the second defendant, however this will require clarification and greater precision.
3.B does not have an arguable claim against the third defendant.
Further, B will need to consider whether he wishes to bring a claim against:
1.Any officers from the Department of Communities other than the second defendant.
2.Any police officers.
If B wishes to bring any such claims, he will need to identify which particular officer or officers and what it is alleged that officer or officers did, or did not do, to give rise to the claim sought to be made against that officer.
I now turn to the plaintiffs' claim for unconscionable conduct.

Unconscionable conduct

Each plaintiff's unconscionable conduct claim relies on the same allegations which are made in support of the malicious prosecution claims. Each plaintiff points to conduct which it is alleged is unconscionable.
The defendants point to there being no freestanding claim at law for unconscionable conduct, except as provided for by statute in respect of consumer protection. The defendants relied on the decision of the High Court in Tanwar Enterprises Pty Ltd v Cauchi[36] where the majority stated:[37]
.. But the phrase 'unconscionable conduct' tends to mislead in several respects.
First, it encourages the false notions that (i) there is a distinct cause of action, akin to an equitable tort, wherever a plaintiff points to conduct which merits the epithet 'unconscionable'; and (ii) there is an equitable defence to the assertion of any legal right, whether by action to recover a debt or damages in tort or for breach of contract, where in the circumstances it has become unconscionable for the plaintiff to rely on that legal right.
(citations omitted)
[36] Tanwar Enterprises Pty Ltd v Cauchi [2003] HCA 57; (2003) 217 CLR 315.
[37] Tanwar Enterprises Pty Ltd v Cauchi [23] - [24].
A and B in their written submissions referred to the decision of the High Court in Thorne v Kennedy[38] and the discussion in that case directed to the principles of unconscionable conduct.[39] However, Thorne v Kennedy concerned the validity of pre‑nuptial agreements and whether unconscionable conduct by the husband associated with the entry into of those agreements should result in them being set aside. Thorne v Kennedy is not authority for the proposition that there is a separate cause of action for unconscionable conduct.
[38] Thorne v Kennedy [2017] HCA 49; (2017) 263 CLR 85.
[39] Thorne v Kennedy [37] - [40].
It may be that conduct which meets the classification of being 'unconscionable' may still form part of a cause of action, depending upon whether additional matters are demonstrated. In this respect, the defendants quite properly raised that unconscionable conduct may in fact have the character of an action for misfeasance in public office. In their written submissions, the defendants pointed to the High Court decision in Northern Territory of Australia v Mengel[40] where in the judgment of Deane J his Honour observed that the elements of the tort of misfeasance in public office are:
(a)an invalid unauthorised act;
(b)done maliciously;
(c)by a public officer;
(d)in the purported discharge of his or her public duties; and
(e)which causes loss or harm to the plaintiff.
[40] Northern Territory of Australia v Mengel [1995] HCA 65; (1995) 185 CLR 307.
The defendants point to the existence of malice as being a key ingredient of such a claim.[41]
[41] Calabro v The State of Western Australia[No 3] [2014] WASC 84 [37].
In Brett Cattle Company Pty Ltd v Minister for Agriculture[42] Rares J described the tort of misfeasance in public office in the following terms:[43]
Relevantly, it is a tort that requires the claimant to establish that the public officer abused or misused his or her office intentionally, that is by either intending to cause harm (the first limb) or knowingly acting in excess of his or her power (the second limb) ...
[42] Brett Cattle Company Pty Ltd v Minister for Agriculture [2020] FCA 732.
[43] Brett Cattle Company Pty Ltd v Minister for Agriculture [270].
Rares J also noted that there is a difference of opinion in Australian appellate courts as to the test applicable in respect of the second limb, his Honour observing:[44]
There has been a difference of opinion in Australian appellate courts as to the test applicable in the second limb of the test governing the office holder's state of mind as to the consequences of acting knowingly or recklessly in excess of his or her power. The preponderant view is that it is sufficient that he or she must also have known, or been recklessly indifferent to, the fact that the plaintiff or applicant was likely to suffer harm. The other view (which I am of opinion is incorrect) is that it is sufficient that there be only a foreseeable risk of harm.
[44] Brett Cattle Company Pty Ltd v Minister for Agriculture [280].
As I understand it, the defendants' counsel raised the tort of misfeasance in public office by way of illustrating that unconscionable conduct may have the character of such an action, however as the passages set at [123] and [125] above demonstrate, unconscionable conduct itself would not be sufficient to establish such a claim.
In any event, the plaintiffs have indicated in their written submissions filed 29 March 2020 that they do not wish to bring a claim for misfeasance in public office and ultimately that must be a matter that is left to them.
As I have identified, each plaintiff's claim for unconscionable conduct relies upon the same matters alleged in support of their claim for malicious prosecution. There is nothing additional raised. Furthermore, each plaintiff's allegations do not arguably give rise to any fiduciary type relationship between each plaintiff and any of the defendants such as to attract the operation of equitable principles applicable to such a relationship.
On the material before me and having regard to the decision of the High Court in Tanwar, in my view the plaintiffs do not have an arguable claim for unconscionable conduct against any of the defendants. As I have identified, unconscionable conduct may form part of the overall conduct comprising another claim, however, on a standalone basis, it does not give rise to a claim in the circumstances of this case.

Conclusion

Claims brought by A

I allow the appeal in respect of the claims brought by A. I will dismiss A's claims brought against the third defendant and also A's unconscionable conduct claim. I will also order that A's claims against the fourth defendant be dismissed. In respect of A's claim against the first defendant, I will hear from the parties as to whether it should be dismissed now, or whether its dismissal should be deferred until an assessment is made as to whether A has an arguable claim for malicious prosecution against the State of Western Australia. If an arguable claim does arise, then consideration will need to be given as to whether the State of Western Australia is substituted as the first defendant, or whether it ought be added as a new party altogether.
I have found that A may have an arguable claim for malicious prosecution against the second defendant, however this claim requires clarification and greater precision. Further, if A wishes to bring a claim for malicious prosecution against other officers from the Department of Communities, in addition to the second defendant, A will need to identify which particular officers and what each officer did or did not do to give rise to a claim for malicious prosecution against them personally.
I will direct that A file a minute of statement of claim which identifies the basis for her claims for malicious prosecution against:
1.The second defendant.
2.Any other officers from the Department of Communities in addition to the second defendant.
The minute will need to address the matters I have referred to at [86] and [92] above.
If A does identify any further persons against whom she wishes to bring a claim for malicious prosecution, consideration will then need to be given as to the joinder of such persons as defendants to the proceedings. Further, whether or not A has an arguable claim against the State of Western Australia can be considered once the further minute has been provided.

Claims brought by B

I allow the appeal in respect of the claims brought by B. I will dismiss B's claims brought against the third defendant and also B's unconscionable conduct claim. I will also order that B's claims against the fourth defendant be dismissed. In respect of B's claim against the first defendant, I will hear from the parties as to whether it should be dismissed now, or whether its dismissal should be deferred until an assessment is made as to whether B has an arguable claim for malicious prosecution against the State of Western Australia. As is the position with A, if an arguable claim does arise, then consideration will need to be given as to whether the State of Western Australia is substituted as the first defendant, or whether it ought be added as a new party altogether.
I have found that B may have an arguable claim for malicious prosecution against the second defendant, however this claim requires clarification and greater precision. Further, if B wishes to bring a claim for malicious prosecution against other officers from the Department of Communities in addition to the second defendant, or against any police officers, B will need to identify which particular officers and what each officer did or did not do, to give rise to a claim for malicious prosecution against them personally.
I will direct that B file a minute of statement of claim which identifies the basis for his claim for malicious prosecution against:
1.The second defendant.
2.Any other officers from the Department of Communities in addition to the second defendant.
3.Any police officers.
The minute will need to address the matters I have referred to at [102] above.
If B does identify any further persons against whom he wishes to bring a claim for malicious prosecution, consideration will then need to be given as to the joinder of such persons as defendants to the proceedings. Further, whether or not B has an arguable claim against the State of Western Australia can then be considered once the further minute has been provided.

Proposed orders

Subject to hearing from the parties, the orders I propose to make are as follows:
1.The appeal be allowed.
2.The order of Deputy Registrar Hewitt made 19 December 2019 giving the plaintiffs leave to amend the statement of claim in terms of the minute filed 26 November 2019 be set aside.
3.The first plaintiff's claims against the third and fourth defendants be dismissed.
4.The first plaintiff's claim for unconscionability against the first and second defendants be dismissed.

5.The second plaintiff's claims against the third and fourth defendants be dismissed.
6.The second plaintiff's claim for unconscionability against the first and second defendants be dismissed.
7.The plaintiffs file a further minute of proposed statement of claim by a date to be set which:
(a)in respect of the first plaintiff, identifies the basis for her claims for malicious prosecution against:
(i)the second defendant;
(ii)any other officers from the Department of Communities in addition to the second defendant.

(b)in respect of the first plaintiff, addresses the matters set out at [86] and [92] above.
(c)in respect of the second plaintiff, identifies the basis for his claims for malicious prosecution against:
(i)the second defendant;
(ii)any other officers from the Department of Communities in addition to the second defendant;
(iii)any police officers.

(d)in respect of the second plaintiff, addresses the matters set out at [102] above.

Potential claims by or on behalf of the plaintiffs' children

The points of claim included additional matters directed to A's children. They are not presently included as plaintiffs. I directed such matters be included because it was apparent at the hearing on 28 May 2020 that A believed the current claims made in the proceedings extended to claims on behalf of her children.
The nature of the possible claim set out in the points of claim is directed to the execution of access warrants for A's children and the interview of some of the children. It is not a claim for malicious prosecution. Further, as I have found, there is no freestanding available claim for unconscionable conduct.
The points of claim in respect of A's children concludes in the final paragraph on the last page by asserting that:
None of these actions were permissible under the terms of the warrants and in good conscience should not have been carried out against children known to have disabilities.
It may be that the allegations made in the points of claim have the characteristics of a claim for misfeasance in public office. However, such claims are not presently made in these proceedings, which are limited to claims by each plaintiff for malicious prosecution and unconscionability. Furthermore, to the extent that any of A's children identified in the points of claim are 18 years or over, the relevant claim is not one which she can bring on their behalf.
In respect of those children who are under 18 years of age, the usual rule is that the claim must be brought on their behalf by what is described in the Rules of the Supreme Court 1971 (WA) as a next friend.[45] The next friend can be a parent, but must be represented by a solicitor.[46] That is, the next friend cannot act in person. The exception to the usual rule is that a judge may permit a person under 18 years of age to sue without a next friend 'on being satisfied that in the circumstances of the case it is proper to do so'.[47]
[45] Order 70 r 2(1).
[46] Order 70 r 2(3).
[47] Order 70 r 2(4).
A will need to give consideration as to whether claims in respect of each of the identified children should be brought in these proceedings by her as a next friend for those children who are under the age of 18 years. However, as I have indicated, in that role as next friend A will need to be represented by a solicitor.

Further conduct of proceedings and format of further minute of statement of claim

The matter will need to be listed for a further directions hearing before me. In advance of that hearing, I will circulate to the parties a pro forma minute containing headings for each plaintiff to address in the further minute of statement of claim.
Once the plaintiffs have filed a further minute of statement of claim, I will then bring the matter back before me to address:
1.Any particular concerns the second defendant has with the further minute.
2.Whether any additional parties should be added, or substituted, as defendants to the proceedings.

I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
CM
Associate to Judge Lemonis
25 NOVEMBER 2020