Albrecht v Commissioner of Police
[2015] WASC 248
•1 JULY 2015
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: ALBRECHT -v- COMMISSIONER OF POLICE [2015] WASC 248
CORAM: PRITCHARD J
HEARD: 1 JULY 2015
DELIVERED : 1 JULY 2015
FILE NO/S: CIV 1155 of 2015
BETWEEN: AMANDA JANE ALBRECHT
Plaintiff
AND
COMMISSIONER OF POLICE
Defendant
Catchwords:
Practice and procedure - Strike out application by defendant pursuant to O 20 r 19(1) of the Rules of the Supreme Court 1971 (WA) - Indorsement to writ discloses no reasonable cause of action - Liability of Commissioner of Police for conduct of police officers - Judgment entered for the defendant
Legislation:
Police Act 1892 (WA), s 137
Rules of the Supreme Court 1971 (WA), O 20 r 19(1), O 21 r 5
Result:
Application granted
Category: B
Representation:
Counsel:
Plaintiff: No appearance
Defendant: Mr J L Winton
Solicitors:
Plaintiff: No appearance
Defendant: State Solicitor for Western Australia
Case(s) referred to in judgment(s):
Boase v Axis International Management Pty Ltd [No 2] [2012] WASC 334
Calabro v The State of Western Australia [2012] WASC 418
Enever v The King (1906) 3 CLR 969
Glew v Frank Jasper Pty Ltd [2010] WASCA 87
Kimberley Downs Pty Ltd v Western Australia (Unreported, WASC, Library No 6414, 25 August 1986)
Mickelburg v The State of Western Australia [2007] WASC 140
Neil v Nott [1994] HCA 23; (1994) 121 ALR 148
Pense v Hemy [1973] WAR 40
Tobin v Dodd [2004] WASCA 288
Wentworth v Rogers (No 5) (1986) 6 NSWLR 534
PRITCHARD J:
(This judgment was delivered extemporaneously on 1 July 2015 and has been edited from the transcript.)
I am dealing today with an application made by the defendant by Chamber Summons dated 10 April 2015 in which the defendant seeks an order, pursuant to O 20 r 19(1) of the Rules of the Supreme Court 1971 (WA) (RSC), that the Indorsement on the plaintiff's Writ of Summons be struck out in its entirety on the grounds that it (a) discloses no reasonable cause of action; (b) is scandalous, frivolous and vexatious; (c) may prejudice, embarrass or delay the fair trial of the action; and (d) is otherwise an abuse of the process of the Court. (I note that in written submissions dated 19 June 2015, counsel for the defendant indicated that he no longer relied on the abuse of process limb of O 20 r 19 RSC.) In addition, the defendant seeks an order pursuant to O 20 r 19 RSC that judgment be entered for the defendant and, further, an order that the plaintiff pay the defendant's costs, to be taxed if not agreed.
The plaintiff has not attended the hearing today. For the reasons I will outline shortly, I was persuaded that the defendant should have leave to proceed with his application, notwithstanding that the plaintiff had not attended. I did so because I was satisfied that the plaintiff had ample notice of the application and the hearing date, and chose not to attend. In those circumstances it was appropriate to proceed in the plaintiff's absence.
For the reasons outlined below, I have formed the view that the defendant's application should be granted and that the action against the defendant should be dismissed. In reaching that view, I should say at the outset that I have borne in mind very keenly that the plaintiff is acting in these proceedings without legal representation. In particular, I have borne in mind the observations made by Beech J in Boase v Axis International Management Pty Ltd [No 2]. There his Honour observed that:[1]
On an application for summary disposal involving a litigant in person, the court should be astute to ensure that, in a poorly expressed or unstructured document setting out the claim, there is no viable cause of action which, with appropriate amendment, could be put into proper form.
[1] Boase v Axis International Management Pty Ltd [No 2] [2012] WASC 334 [57], citing Wentworth v Rogers (No 5) (1986) 6 NSWLR 534, 536, 543, and Tobin v Dodd [2004] WASCA 288 [15].
Further, his Honour observed that a court should be careful to see that the rights of an unrepresented litigant have not been 'obfuscated by their own advocacy'.[2] Although his Honour's observations were made in a slightly different context, they are entirely apposite in the present case and I respectfully adopt them.
[2] Boase v Axis International Management Pty Ltd [No 2] [2012] WASC 334 [57], citing Neil v Nott [1994] HCA 23; (1994) 121 ALR 148, 150, and Glew v Frank Jasper Pty Ltd [2010] WASCA 87 [10].
In these reasons for decision I deal with the following matters:
1.Why it was appropriate to proceed to hear the application, notwithstanding that the plaintiff did not attend the hearing today;
2.An overview of the plaintiff's action;
3.The principles in respect of applications to strike out pleadings under O 20 r 19 (1)(a) RSC;
4.Why the plaintiff's action against the defendant has no reasonable prospect of success;
5.Why the action as a whole should be dismissed having regard to the fact that the Commissioner of Police has been named as the defendant; and
6.Costs.
1. Why it was appropriate to proceed to hear the application, notwithstanding that the plaintiff did not attend the hearing today
Counsel for the defendant handed up to the Court an affidavit of Vance Hoang Vu sworn 20 May 2015 which establishes that the plaintiff was served with a copy of the Chambers Summons dated 10 April 2015.
In addition, there have been a number of occasions on which the plaintiff has been sent communications from the Court which confirmed that the hearing date was today and, on several occasions, the plaintiff has indicated that she has received those communications. On 15 May 2015, my Associate contacted the plaintiff by email to advise of the hearing date today and the plaintiff responded to that email. By way of a further email on 15 May 2015 from my Associate to the plaintiff, the hearing date of 1 July 2015 was referred to. The plaintiff responded to that email. By letter dated 19 May 2015, sent by email from my Associate to the plaintiff, the hearing date of 1 July 2015 was, again, mentioned. The plaintiff responded to that email. On 25 May 2015, a letter was sent by my Associate to the plaintiff by email which also mentioned the hearing date of 1 July 2015, and the plaintiff responded by email. I should note that that letter addressed the plaintiff's expressed desire to have this hearing adjourned. The plaintiff was advised that if she wished to have the hearing adjourned she should make an application to that effect. No application has been made.
On 29 June 2015, a letter was sent by my Associate to the plaintiff by email which, again, mentioned that the hearing of the application would be held today. The plaintiff responded to that letter. That correspondence, again, addressed an expressed desire by the plaintiff to have the hearing adjourned and the plaintiff was advised that an application for an adjournment would need to be made. No application has been made in any proper form.
Finally, on 29 June 2015 an email was sent by my Associate to the plaintiff which, again, expressly mentioned the date and time of the hearing today. The plaintiff responded to that email.
In addition, further correspondence has been received by email from the plaintiff today. Earlier this morning, three emails were received from the plaintiff in respect of this matter and another matter which I heard this morning. The first, an email at 8.38 am in relation to these proceedings, requested that a copy of a Statement of Claim dated 29 May 2015 be put before the Court, together with an application for summary judgment that the plaintiff seeks to pursue. (I digress to note that that application for summary judgment has not been listed before me today and that I am dealing simply with the defendant's application to strike out the Indorsement to the Writ and the action itself.) By a further email this morning, the plaintiff advised that she did not intend to attend Court today. And, finally, in a later email this morning, the plaintiff also indicated that she did not intend to attend this afternoon for reasons which I not need not set out here.
I am satisfied that the plaintiff has been aware of the hearing today and has made her own determination not to attend.
2. An overview of the plaintiff's action
The application by the defendant today is to strike out the Indorsement to the plaintiff's Writ of Summons. Although the focus of the application is the Indorsement, the plaintiff has, in fact, filed a Statement of Claim (dated 16 April 2015) and a revised Statement of Claim (on 19 June 2015). Although those pleadings were not the focus of the defendant's application, I have nevertheless taken the content of those pleadings into account in order to endeavour to understand the nature of the cause of action, or causes of action, which the plaintiff seeks to pursue in this action.
The Indorsement to the Writ indicates that the plaintiff's claim is for damages described as loss of income, costs and damages for unlawful arrest and detention causing bodily harm, damages to her personal and professional reputation, damages for certain emotional distress due to losing custody of her children, damages for other emotional distress caused to her family, damages for the loss of her trust in the WA Police Force, costs to upgrade security, and loss of income in attending to certain other matters.
The essence of the claim, as disclosed in par 2 of the Indorsement, is that the plaintiff's claim against the Commissioner of Police is for 'costs, loss of income and damages for injuries and the affect [sic] on [her] personal and professional reputation and the mental distress caused to [her]', as a result of incidents that occurred on 8 October 2014 and 11 December 2014. The essence of those incidents appears to be that, on 8 October 2014, police officers attended the plaintiff's apartment and entered the apartment. It is alleged by the plaintiff that those police officers assaulted her, that they arrested her, that they subsequently detained her in a police cell, and then charged her with assaulting a police officer. The Indorsement also refers to an incident which occurred on 11 December 2014. The Indorsement indicates that the plaintiff alleges that police officers entered her apartment with a search warrant, seized a computer and subsequently charged her with a breach of the Criminal Investigation Act 2006 (WA), a charge which the plaintiff claims the police subsequently withdrew.
No causes of action against the defendant are clearly disclosed on the face of the Indorsement. The Statement of Claim and revised Statement of Claim which have been filed do not make the position any clearer in terms of the precise nature of the action which the plaintiff seeks to pursue. Those documents again refer to the incidents on 8 October 2014 and 11 December 2014 and to some other incidents which occurred earlier this year involving police officers. The claims set out in the revised Statement of Claim refer to the fact that the plaintiff seeks costs and, apparently, damages for loss of income as a result of the conduct of police officers.
As counsel for the defendant submitted, having regard to the matters referred to in the Indorsement and the Statements of Claim which have been filed, it is possible that the plaintiff seeks to pursue causes of action such as trespass on land, assault, unlawful imprisonment or malicious prosecution. However, those matters are not sufficiently pleaded to permit certainty about the nature of the plaintiff's claim. For present purposes, it suffices to say that what the Indorsement on the Writ does not do is directly allege any conduct by the Commissioner of Police in respect of which a claim for damages might be brought against him.
The principles in respect of applications to strike out pleadings under O 20 r 19(1)(a) RSC
The principles in respect of an application to strike out pursuant to O 20 r 19(1)(a) RSC are well‑established. They were set out in the oft‑cited authority of Master Staples in Kimberley Downs Pty Ltd v Western Australia,[3] as follows:
(1)The rule is intended to apply only to cases which are really not arguable and not to cases where under the previous practice demurrer would have been the proper course.
(2)On the application, not only must all the facts alleged in the statement of claim be accepted as true, but it must be taken for granted that on all other points the pleading is unassailable.
(3)Great care must be exercised to ensure that a plaintiff is not improperly deprived of his opportunity for the trial of his case by the appointed tribunal.
(4)But the rule should not be reserved for those cases where argument is unnecessary to show the futility of the plaintiff's claim. Argument, even extensive argument, may be necessary to demonstrate that the plaintiff's case is so clearly untenable that it cannot possibly succeed.
(5)As a general rule, a plaintiff is entitled … as of right to have his case heard, to have the facts found and then to argue the question of law as it arises before the trial Judge upon the facts as found. It is only in cases in which it can be seen from the outset that, however the facts be found, there is no basis for the legal conclusion contended for by the plaintiff that the pleading should be struck out.
(6)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.
[3] Kimberley Downs Pty Ltd v Western Australia (Unreported, WASC, Library No 6414, 25 August 1986) 6 ‑ 7 (citations omitted).
4. Why the plaintiff's action against the defendant has no reasonable prospect of success
For the reasons below, I am satisfied that that the defendant's application should be granted pursuant to O 20 r 19(1)(a) RSC. In short, the reason for that conclusion is that the plaintiff does not appear to allege any personal fault on the part of the Commissioner of Police, or any other basis for visiting liability on the Commissioner of Police.
The facts as disclosed in the Indorsement suggest that the plaintiff complains about the conduct of police officers on the two occasions, in particular, to which I have referred. There is nothing in the Indorsement, or in the Statements of Claim which have subsequently been filed, to suggest that those police officers were acting on the direction of any superior officer and, most particularly, on the direction of the Commissioner of Police.
If it is the plaintiff's position that the officers were acting in the course of their duties, then at common law it is very well‑established that the person who, or entity which, appoints a police officer is not vicariously liable for the acts of that officer committed in the officer's discretion and pursuant to the officer's statutory and common law duties.[4]
[4] Enever v The King (1906) 3 CLR 969, 976 ‑ 977 (Griffith CJ, Barton J agreeing), 993 ‑ 994 (O'Connor J); see also Pense v Hemy [1973] WAR 40, 42 ‑ 43; Mickelburg v The State of Western Australia [2007] WASC 140 [120], [129]; and Calabro v The State of Western Australia [2012] WASC 418 [29].
If a cause of action is to be pursued against a police officer, it is necessary also to take account of the Police Act 1892 (WA). Section 137 deals with liability for the actions of police officers. Section 137(3) provides that:
An action in tort does not lie against a member of the Police Force for anything that the member has done, 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) of the Police Act provides that:
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.
The position, then, is that to the extent that it is alleged that a police officer commits a tort, as a result of engaging in conduct without corruption or malice in the performance of that police officer's duties, the State of Western Australia is effectively made vicariously liable for that tort by virtue of s 137(5) of the Police Act. The police officer himself or herself is not liable in tort for conduct done without corruption or malice. There is no liability that is sheeted home to the Commissioner of Police for the conduct of police officers, pursuant to s 137 of the Police Act.
Having regard to the common law principles, and to the provisions of s 137 of the Police Act to which I have referred, I am satisfied that there is no possible basis for sheeting home liability to the Commissioner of Police for the actions of the individual police officers referred to in the Indorsement to the Writ. For that reason, I am satisfied that the Indorsement to the Writ should be struck out pursuant to O 20 r 19(1)(a) RSC.
Accordingly, it is not necessary to consider the other grounds on which the defendant's application is based.
5. Why the action as a whole should be dismissed having regard to the fact that the Commissioner of Police has been named as the defendant
I turn next to the question whether the action as a whole should be dismissed or whether some other course should be taken, having regard to the fact that clearly the action cannot be pursued against the Commissioner of Police.
One thing that has troubled me has been whether this is an action which (albeit perhaps with amendments) might be open to be pursued against another party, or other parties, other than the Commissioner of Police (whether individual police officers or the State of Western Australia). I explored that question with counsel for the defendant at length in the hearing this afternoon. Under O 21 r 5 RSC, it is possible to allow a plaintiff to amend a Writ on such terms as to costs or otherwise as may be just and in such manner, if any, as the Court may direct. That amendment may include an amendment to correct the name of a party, and there are various provisions in O 21 r 5 RSC which deal with situations in which such an amendment might be sought.
Having heard the submissions of counsel for the defendant, I have formed the view that this is not an appropriate case for the grant to the plaintiff of liberty to apply to amend the name of the defendant should she wish to do so. Rather, the appropriate course is to dismiss the action in its entirety. I have formed that view for the following reasons.
First, counsel for the defendant provided the Court with copies of correspondence passing between the solicitors for the defendant and the plaintiff. In particular, by letter dated 1 April 2015, the solicitors for the defendant wrote to the plaintiff and expressly advised her of the difficulties that arose (and to which I have referred) in naming the Commissioner of Police as the defendant. The plaintiff was expressly invited to discontinue the action as against the Commissioner or, alternatively, to consider amending the Writ to identify a different defendant. The plaintiff was specifically advised that if that course of action was taken, the solicitors for the defendant were instructed not to oppose such an application and that if an application to that effect was successful, the matter might then proceed in the ordinary fashion.
Counsel for the defendant has also provided the Court with a copy of an email dated 9 April 2015 from the plaintiff to the solicitor for the defendant in which she responded to that letter of 1 April 2015. In that email, the plaintiff confirmed that she wished to proceed against the Commissioner of Police. In that email the plaintiff contended that the Commissioner of Police has a duty of care to the public to ensure that his police officers 'do not behave in a harassing and discriminatory manner in their workplace', that the Commissioner and his police officers had breached their duty of care, that this had resulted in a direct financial loss to the plaintiff and consequently that her claim for damages was brought on that basis. It thus appears that the plaintiff has taken a very deliberate decision in this action to proceed against the Commissioner of Police.
Similar concerns in relation to the named defendant were raised with the plaintiff at a status conference before the Principal Registrar on 16 March 2015. When the present action was commenced, the plaintiff named the defendant as the 'WA Police'. In the course of the hearing on 16 March 2015 (the transcript of which I have read) counsel for the defendant referred to difficulties in naming the Commissioner of Police as the defendant. The plaintiff confirmed that she wished to proceed with the action, naming the Commissioner of Police as the defendant. In view of the plaintiff's expressed desire to proceed against the Commissioner of Police, the Principal Registrar made an order changing the name of the defendant to the Commissioner of Police.
For completeness, I should add that nothing in the Indorsement to the Writ suggests that the action commenced by the plaintiff naming the Commissioner of Police as defendant is brought on the basis of a breach of a duty of care owed by him. Furthermore, counsel for the defendant submitted that there was no cause of action by which the Commissioner could be liable for a breach of a duty of care as a result of the conduct of his police officers, having regard to the position at common law and pursuant to the provisions of the Police Act to which I have already referred.
In all of those circumstances, and having regard to the plaintiff's apparently considered decision to proceed against the Commissioner of Police, I am not persuaded that this would be an appropriate case to provide the plaintiff with the opportunity to seek to amend the name of the defendant to the Writ. The appropriate course in my view is to dismiss the action as against the Commissioner of Police in its entirety. If the plaintiff wishes to pursue an action against another party or other parties, it remains open to her to commence such an action and to properly plead the cause of action that she seeks to pursue as against those named parties.
Costs
Notwithstanding that the plaintiff is not present today, for the reasons I have already given, I am satisfied that the plaintiff has been aware, since the service of the Chamber Summons upon her, that an order that would be sought in the event that the defendant was successful was an order that she pay the defendant's costs, to be taxed if not agreed.
The starting point in respect of an order for costs under O 66 r 1 RSC is that the costs should follow the event. Nothing in the material before me suggests that there is any reason to depart from that ordinary approach to costs in the present circumstances. For that reason, I am minded to make an order in terms of order 3 sought in the Chamber Summons, namely that, pursuant to O 66 r 1 RSC, the plaintiff pay the defendant's costs to be taxed, if not agreed.
Orders
The following orders will be made:
1.Pursuant to O 20 r 19(1) of the Rules of the Supreme Court 1971 (WA) the Indorsement to the plaintiff's Writ of Summons filed 3 February 2015 be struck out and the plaintiff's action be dismissed.
2.Judgment be entered for the defendant.
3.Pursuant to O 66 r 1 of the Rules of the Supreme Court 1971 (WA) the plaintiff pay the defendant's costs to be taxed if not agreed.
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