Adamson v Commissioner of Police for New South Wales

[2009] NSWSC 858

CITATION:	Adamson v Commissioner of Police for New South Wales [2009] NSWSC 858
HEARING DATE(S):	24 August 2009
JUDGMENT DATE :	1 September 2009
JUDGMENT OF:	James J
DECISION:	1. Application dismissed 2. Applicant pay respondents’ costs of the application
CATCHWORDS:	Transfer of proceedings from District Court
LEGISLATION CITED:	Civil Procedure Act Search Warrants Act 1985
PARTIES:	Christopher Michael Adamson - Plaintiff Commissioner of Police for New South Wales - First Defendant State of New South Wales - Second Defendant Detective Senior Constable Anthony Elkins - Third Defendant Registrar M P Degney - Fourth Defendant Director of Public Prosecutions - Fifth Defendant
FILE NUMBER(S):	SC 15734/06
COUNSEL:	In person - Plaintiff M Hutchings - Defendants N Carney - Defendant in District Court proceedings
SOLICITORS:	In person - Plaintiff IV Knight, Crown Solicitor - Defendants

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

JAMES J

TUESDAY 1 SEPTEMBER 2009

15734/06 CHRISTOPHER MICHAEL ADAMSON v COMMISSIONER OF POLICE & 4 ORS

JUDGMENT

1 HIS HONOUR: This is an application by Mr Christopher Michael Adamson, the plaintiff in this Court in proceedings no. 15734/06 (“the Supreme Court proceedings”), that proceedings in the Newcastle District Court no. 394/07 (“the District Court proceedings”), in which Mr Adamson is also the plaintiff, be transferred to this Court and heard concurrently with the Supreme Court proceedings.

2 The application is made pursuant to s 140(1) of the Civil Procedure Act, which provides, so far as is relevant, that the Supreme Court may on an application by a party to proceedings in the District Court order that the District Court proceedings be transferred to the Supreme Court, and Pt 28 r 28.5 of the Uniform Civil Procedure Rules which provides that, if several proceedings are pending in a court and it appears to the court that any of the matters set out in pars (a), (b) or (c) is satisfied, the court may order that those proceedings be tried at the same time.

3 The application is opposed by Mr Kenneth John Ede, who is the only defendant in the District Court proceedings, and by all the defendants in the Supreme Court proceedings, who are the Commissioner of Police, the State of New South Wales, a police officer Detective Senior Constable Elkins, Mr M P Degney who was the registrar of a Local Court, and the Director of Public Prosecutions. It is clear that the single defendant in the District Court proceedings and all of the defendants in the Supreme Court proceedings have an interest in the outcome of Mr Adamson’s application. No point was taken about the application being made by a notice of motion in the Supreme Court proceedings.

4 At the hearing of the application Mr Adamson appeared in person. Mr Ede was represented by counsel (Mr Carney) and all of the five defendants in the Supreme Court proceedings were represented by the same counsel (Mr Hutchings).

5 The evidence on the application consisted of three fairly short affidavits by Mr Adamson and two fairly short affidavits by Mr Ede’s solicitor.

The Supreme Court proceedings

6 The Supreme Court proceedings were commenced by a summons filed on 23 November 2006. Subsequently an amended summons, a statement of claim, an amended statement of claim and a further amended statement of claim were filed. The further amended statement of claim of 22 April 2009 is the current pleading. No defence has yet been filed on behalf of any of the defendants.

7 The further amended statement of claim is a lengthy document running to 39 pages, although many pages are devoted to giving short particulars of a large number of criminal charges which were brought against the plaintiff.

8 In the further amended statement of claim it is alleged that the plaintiff is a solicitor and that he used certain premises at Wang Wauk via Nabiac (“the premises”) in carrying on his practice.

9 In par 8 of the further amended statement of claim it is alleged that on 21 September 2005 Detective Elkins applied for a search warrant to search the premises and on 22 September 2005 Mr Degney as an authorised justice under the Search Warrants Act 1985 issued a search warrant pursuant to the application. The plaintiff alleges that the search warrant was invalid because it was not applied for or issued according to law. Particulars are given of this allegation.

10 In par 9 of the further amended statement of claim it is alleged that on or about 23 September 2005 Detective Elkins and other police officers executed the search warrant, in the absence of the plaintiff, seizing a large number of items of property. The plaintiff alleges that the search warrant was not executed according to law and particulars are given of this allegation.

11 In par 10 of the further amended statement of claim it is alleged that on or about 29 September 2005 the plaintiff was arrested by police officers. The plaintiff alleges that the arrest was unlawful.

12 In par 11 of the further amended statement of claim it is alleged that on or about 29 September 2005 the plaintiff was searched by police officers and a number of items of personal property were taken from him and detained. The plaintiff alleges that the search and the detention of his personal property were unlawful.

13 In par 12 of the further amended statement of claim it is alleged that on or about 29 September 2005 the plaintiff was detained and imprisoned by police officers and that his detention and imprisonment were unlawful.

14 In par 13 of the further amended statement of claim the plaintiff alleges that on or about 29 September 2005 Detective Elkins commenced a prosecution of the plaintiff on 133 charges, mainly charges of making or using a false instrument with intent or obtaining money, a valuable thing or a financial advantage by deception. Detective Elkins commenced the criminal prosecution of the plaintiff by creating a court attendance notice for all the 133 charges. In 2006 the Director of Public Prosecutions took over the prosecution of the 130 charges.

15 In par 14 of the further amended statement of claim it is alleged that in about March 2007 the plaintiff was served with a further court attendance notice for further charges, which were numbered 134-138. It is alleged that two police officers other than Detective Elkins, who are not joined as defendants in the Supreme Court proceedings, were the prosecutors of these further charges. In about March or April 2007 the Director of Public Prosecutions took over the prosecution of the further charges.

16 It is alleged in the further amended statement of claim that charges 1-137 were withdrawn. The prosecution of charge 138 proceeded until, on 20 November 2008, a magistrate dismissed the charge, after the prosecution had closed its case.

17 In par 15 of the further amended statement of claim it is alleged that Detective Elkins, the police officers who commenced the prosecution of the further charges and the Director of Public Prosecutions prosecuted the plaintiff without reasonable and probable cause and with malice. Particulars are supplied of actual, inferred or implied malice.

18 In par 16 of the further amended statement of claim the plaintiff claims 17 declarations against one or more of the defendants. In par 17 the plaintiff claims a number of orders against one or more of the defendants. In par 18 particulars are supplied of the plaintiff’s claim for damages.

The District Court proceedings

19 The District Court proceedings were commenced by the filing of a statement of claim on 23 November 2007, a year after the Supreme Court proceedings were commenced. The statement of claim has been amended on a number of occasions, the current pleading being the second further amended statement of claim filed on 9 April 2009.

20 In par 1A of the second further amended statement of claim it is alleged that on or about 29 September 2005 police officers commenced criminal proceedings against the plaintiff by a court attendance notice for 133 charges. These are the same charges as are referred to in par 13 of the further amended statement of claim in the Supreme Court proceedings.

21 In par 1B of the second further amended statement of claim it is alleged that in or about March 2007 police officers commenced criminal proceedings against the plaintiff by a court attendance notice for five further charges. These further charges are the same charges as the further charges referred to in par 14 of the further amended statement of claim in the Supreme Court proceedings.

22 In par 2A of the second further amended statement of claim it is alleged that “the defendant was instrumental or procured the prosecution of the plaintiff in respect of the aforesaid charges”. Particulars are supplied of this allegation. Particular (1) is as follows:-

“The defendant gave a number of oral and written statements making numerous allegations against the plaintiff in support of the charges to the police or which the police relied upon and the defendant was the sole complainant whose truthfulness and candour was relied upon by the police and which statements and evidence was instrumental in persuading the NSW Police to bring and the NSW Police and the ODPP to proceed with the above charges.”

23 Other particulars of the allegation include that the defendant supplied other documentary and real evidence to police, encouraged the police to continue with the prosecution of the plaintiff and made a number of false or reckless or misleading allegations, which are itemised, in statements made by him to the police or the Director of Public Prosecutions

24 In par 3A of the second further amended statement of claim it is alleged that the Director of Public Prosecutions took over the prosecution of the plaintiff.

25 In par 4 of the second further amended statement of claim it is alleged that the defendant had no reasonable and probable cause to make the complaints he had made about the plaintiff. Particulars are supplied of this allegation.

26 In par 5 of the second further amended statement of claim it is alleged that the defendant was actuated by malice. Particulars are supplied of this allegation. The particulars include references to a long history of disputes and litigation between the plaintiff and Mr Ede, including disputes about the premises and proceedings in defamation brought by the plaintiff against Mr Ede in which the plaintiff obtained an award of damages, which has not been paid.

27 In par 6 of the second further amended statement of claim it is alleged that all the charges against the plaintiff were terminated in the plaintiff’s favour.

28 Paragraph 6.1 of the second further amended statement of claim is in the following terms:-

“The complaint and aforesaid prosecution of the plaintiff by the defendant in respect of charge 138 was an abuse of process as the defendant gave his statements, made the complaint and instigated the prosecution of the plaintiff for an improper or collateral purpose including to avoid the repayment of loans and other obligations owed to the plaintiff and his interests and to invoke the criminal justice system to cause damage to the plaintiff.”

29 It is unclear whether par 6.1 is part of the pleading of the cause of action for malicious prosecution or whether it is a pleading of an independent cause of action for abuse of process.

30 In par 7A of the second further amended statement of claim particulars are supplied of the plaintiff’s claim for damages, which is the only form of relief sought by him in the District Court proceedings.

31 The history of the District Court proceedings is traced in one of the affidavits by Mr Ede’s solicitor. On a number of occasions Mr Adamson has failed to comply with directions by the court concerning the amending of the statement of claim, the providing of particulars or the serving of a list of documents.

32 At a directions hearing on 21 July 2009, even though some directions previously made had not been complied with and no defence had yet been filed, a District Court judge gave further directions and fixed 23 November 2009 as the date for the trial.

The submissions of the parties

33 The principal submissions of the parties can be briefly summarised as follows.

For the plaintiff

34 In both the Supreme Court proceedings and the District Court proceedings there is a claim for damages for malicious prosecution in respect of the same criminal charges brought against the plaintiff. A number of witnesses would give the same or similar evidence in both proceedings. These witnesses would include Mr Adamson himself, Mr Ede, Detective Elkins, the police officers who commenced the prosecution of the further charges, a Mr Stanhope who is an officer of the Director of Public Prosecutions and a number of other witnesses, including a real estate agent, a representative of a credit union and a representative of the Roads and Transit Authority. Much documentary evidence would be relevant in both proceedings. It would give effect to what s 56 of the Civil Procedure Act declares to be the overriding purpose of the Act and of the Uniform Civil Procedure Rules, that is to facilitate the just, quick and cheap resolution of the real issues in proceedings, for the District Court proceedings to be transferred to the Supreme Court and the two sets of proceedings to be heard together, so that witnesses would be required to attend court and give evidence only once.

35 Although the causes of action in the Supreme Court proceedings other than the cause of action for malicious prosecution were not causes of action in the District Court proceedings, evidence of facts relevant to those other causes of action would also be given in the District Court proceedings, as being evidence relevant to the damages claimed by Mr Adamson as flowing from the malicious prosecution by Mr Ede.

36 Mr Adamson had deposed in an affidavit that he was impoverished and, although he would be representing himself at any trial and hence would not be paying legal costs, he could not afford the expenses of conducting two separate trials.

37 If there were separate hearings, the two courts might make conflicting findings. It was accepted that, as the parties to the two proceedings would be different, there would not be any issue estoppel.

For Mr Ede

38 There are a number of causes of action in the Supreme Court proceedings which are not causes of action in the District Court proceedings. Although there is a cause of action for malicious prosecution in both proceedings, there are important differences between the causes of action in the two proceedings such that much evidence would be relevant in only one of the proceedings.

39 The District Court proceedings were commenced almost two years ago and the resolution of the proceedings has been delayed by defaults on the part of Mr Adamson. A date has been fixed for the hearing of the District Court proceedings and Mr Ede wants the trial to proceed on that date, so that finality can be achieved in the proceedings brought against him. If the orders sought by Mr Adamson were made, then the date which has been fixed for the hearing of the District Court proceedings would have to be vacated, the resolution of the proceedings against Mr Ede would be delayed and Mr Ede would find himself involved in combined proceedings in much of which he would have no interest and the trial of which would last much longer and be much more expensive for Mr Ede than a separate trial of the proceedings against him.

For the defendants in the Supreme Court proceedings

40 Although there was a cause of action for malicious prosecution in both proceedings and both causes of action were based on the same criminal charges, there were important differences between the two causes of action, including differences between the sole prosecutor alleged in the District Court proceedings and the four prosecutors alleged in the Supreme Court proceedings. There is in fact little commonality between the two causes of action for malicious prosecution.

41 In the Supreme Court proceedings there are a number of other causes of action, whereas in the District Court proceedings the only cause of action is for malicious prosecution (apart from the possible cause of action for abuse of process, which, in any event, had no counterpart in the Supreme Court proceedings).

42 The only relief claimed in the District Court proceedings is an award of damages, whereas in the Supreme Court proceedings a large number of declarations against persons other than Mr Ede are sought.

43 The purpose of s 56 of the Civil Procedure Act would be fulfilled by not making the orders sought by Mr Adamson.

Decision

44 The two orders sought by Mr Adamson should be considered together, because the order for the transfer of the District Court proceedings to this Court is sought only for the purpose of having the two proceedings heard together.

45 The principles to be applied on an application under s 140 of the Civil Procedure Act are conveniently summarised in Ritchie’s Uniform Civil Procedure NSW at s 140.5 p 2884:-

“…the court has discretionary power to make the orders sought. An order may be made whenever the transferor court considers that removal of the proceedings is appropriate, in the light of the particular circumstances of the proceedings and the matters in issue…the fundamental consideration is whether there is “sufficient cause” for the transfer to be made. That criteria permits a wide range of considerations and involves discretionary, indeed impressionistic, evaluation…”

46 I have formed the conclusion that I should not make the orders sought by Mr Adamson. I have formed this conclusion for a number of reasons.

47 There are important differences between the two proceedings. The parties to the Supreme Court proceedings are Mr Adamson and the five defendants, not including Mr Ede, who I have already named. The parties to the District Court proceedings are Mr Adamson and Mr Ede as the sole defendant.

48 In the further amended statement of claim in the Supreme Court proceedings a number of causes of action are pleaded which are not pleaded in the second further amended statement of claim in the District Court proceedings, in which the only cause of action pleaded (apart from the possible cause of action for abuse of process, which is not pleaded in the Supreme Court proceedings) is a cause of action for malicious prosecution. The other causes of action pleaded in the Supreme Court proceedings are that the search warrant for the search of the premises was not lawfully applied for and was not lawfully issued; that the search warrant was not lawfully executed; that Mr Adamson was wrongfully arrested; that Mr Adamson was unlawfully searched and that items of personal property were taken from him and unlawfully detained; and that Mr Adamson was falsely imprisoned.

49 It is true that there is a cause of action for malicious prosecution pleaded in both the further amended statement of claim in the Supreme Court proceedings and the second further amended statement of claim in the District Court proceedings and that the two causes of action arise out of the same 138 criminal charges and that quite a substantial amount of the same evidence will be relevant to both causes of action.

50 However, there are important differences between the two causes of action for malicious prosecution. In the Supreme Court proceedings there are four alleged prosecutors (the three police officers and the Director of Public Prosecutions), whereas in the District Court proceedings there is only one alleged prosecutor, Mr Ede.

51 Furthermore, the ways in which it is alleged that the defendants instituted or maintained criminal proceedings against Mr Adamson differ. In the Supreme Court proceedings it is alleged that the police officers initiated criminal proceedings against Mr Adamson by creating court attendance notices stating the charges and that the Director of Public Prosecutions maintained those criminal proceedings by taking over the prosecution of Mr Adamson.

52 On the other hand, in the District Court proceedings it is alleged that, while police officers commenced the criminal proceedings against Mr Adamson by court attendance notices, Mr Ede was “instrumental and procured the prosecution of the plaintiff in respect of the aforesaid charges”. Accordingly, it is alleged that Mr Ede is to be regarded as a prosecutor according to the principle stated in Fleming the Law of Torts 9th ed (1998) at p 677:-

“An informant may be regarded as a prosecutor if his information virtually compels the police to prosecute, even more where he deliberately deceives the police by supplying false information without which they would not have proceeded.”

53 There are important differences between the two causes of action, so far as proof of the elements of absence of reasonable and probable cause and malice are concerned. These differences are reflected in the different particulars of these elements furnished in the two statements of claim. For example, the particulars of alleged malice in the second further amended statement of claim in the District Court proceedings include a number of particulars based on the alleged history of enmity between Mr Adamson and Mr Ede, which have no counterpart in the particulars of alleged malice supplied in the further amended statement of claim in the Supreme Court proceedings, except to the extent to which it is alleged that police officers knew or recklessly disregarded information about that history.

54 These differences between the causes of action in the two proceedings mean that much evidence which would be relevant in one of the proceedings will not be relevant in the other proceedings and many submissions which would be likely to be made in one of the proceedings will not be relevant in the other proceedings. If the two proceedings were heard together then both Mr Ede or the defendants in the Supreme Court proceedings would have no interest in much of the evidence being adduced.

55 Another important difference between the two proceedings is the extensive declaratory relief sought in the Supreme Court proceedings but not in the District Court proceedings.

56 I take into account the submissions made by Mr Adamson. However, I consider I should also give weight to the submissions made on behalf of Mr Ede. He is the defendant in proceedings which were commenced almost two years ago. The resolution of the proceedings has been delayed, at least partly by reason of Mr Adamson amending his statement of claim and failing to comply with directions. A trial date has been fixed and Mr Ede has the prospect of the proceedings against him being resolved.

57 If I grant Mr Adamson’s application, the trial date for the District Court proceedings will be vacated and Mr Ede will find himself involved in a combination of the two proceedings, which will be much more complex than the proceedings against him considered separately. It is reasonable to consider that a combined hearing of the two proceedings would not take place until some time next year and the hearing itself would take much longer than a separate hearing of the proceedings against Mr Ede.

58 I am not persuaded that the purpose of s 56 of the Civil Procedure Act would be fulfilled by my making the orders sought by Mr Adamson.

59 I dismiss the application and order the applicant pay the respondents’ costs of the application.

**********