Anita Roth v Terence Murphy

[2019] NSWSC 1345

Supreme Court

New South Wales

Medium Neutral Citation:	Anita Roth v Terence Murphy & Ors [2019] NSWSC 1345
Hearing dates:	1 October 2019
Date of orders:	04 October 2019
Decision date:	04 October 2019
Jurisdiction:	Common Law
Before:	Cavanagh J
Decision:	See paragraph 25
Catchwords:	Dismissal of proceedings, Judicial Immunity, Witness Immunity, Police Officers as Defendants
Legislation Cited:	Civil Liability Act 2002 Judicial Officers Act 1986 Law Reform (Vicarious Liability) Act 1983 Uniform Civil Procedure Rules 2005
Cases Cited:	Nil
Texts Cited:	Nil
Category:	Principal judgment
Parties:	Anita Roth (Plaintiff)   Terence Murphy (First Defendant) James Hogan (Second Defendant) Katherine Thompson (Third Defendant) Susan Duncombe (Fourth Defendant) Michael Vita (Fifth Defendant) Gareth Shepherd (Sixth Defendant) Timothy Duff (Seventh Defendant) Lee Gorman (Eighth Defendant) Cristin Drummond (Ninth Defendant) Stephen Utterlinden (10th Defendant) Kenneth Bradley (11th Defendant)
Representation:	Counsel: Ms Roth in person (Plaintiff) Mr Lee (First, Second, Third, Fourth, Fifth, 10th and 11th Defendants)   Solicitors: Self-Represented (Plaintiff) Crown Solicitor (First, Second, Third, Fourth, Fifth, 10th and 11th Defendants)
File Number(s):	2017/304194
Publication restriction:	Nil

Judgment

1. These proceedings are running together and were the subject of a joint hearing with the matter of Divis v Knight (2017/304205). Both matters came before the Court on 1 October 2019 for hearing of motions pursued by both plaintiffs to amend their statements of claim and motions pursued on behalf of the defendants to strike out the statement of claim pursuant to r 14.28 and/or dismiss the proceedings pursuant to r 13.4 and/or discuss the proceedings due to want of due despatch pursuant to r 12.7 of the Uniform Civil Procedure Rules 2005 (“the Rules”).

2. In both matters, Mr Lee appeared on behalf of certain defendants and otherwise as amicus. Whilst the issues in both matters for the purposes of the application before the Court on 1 October 2019 are somewhat similar, there are some differences in the proceedings issued by the plaintiff, Ms Roth and the plaintiff in the other matter, Mr Divis.

3. As I said in the judgement in Mr Divis’ matter, as both Mr Divis and Ms Roth are representing themselves, I have endeavoured to make the reasons for my decision as clear as possible but both plaintiffs are bound by the principles which apply, both as to their pleadings and whether their claim should be dismissed at this stage. It is not necessary for me to repeat all of the comments or observations I made in Mr Divis’ matter and reference should be made to that judgment for the principles which are to be applied, the procedural history of the matters and the current state of the matters.

4. Mr Divis and Ms Roth are the parents of Igor Divis. At the time of the events complained of by Ms Roth in these proceedings, Igor Divis was a minor. He is now 19.

5. Mr Divis and Ms Roth filed statements of claim on the same day and their cases have been conducted over the same time period and in the same way. Almost identical orders have been made each time the matters have been before the Court. They make the same applications which were for determination on 1 October 2019. The defendants in Ms Roth’s matter are represented by the same solicitors and Counsel as are appearing in Mr Divis’ matter.

6. Ms Roth confirmed to me at commencement of the hearing on 1 October 2019, (just as Mr Divis did), that they previously had some legal representation; that they did not now have any legal representation and that they would not be seeking any legal representation in the future. She confirmed with me, as Mr Divis did, that she understood that the defendants were applying to have her proceedings dismissed and that I would be hearing that application on 1 October. There were no language barriers and leaving aside the normal difficulties in unrepresented persons necessarily understanding the legal processes and any technical legal points, I gained the impression that Ms Roth understood, at least in general terms, the submissions made against her and the questions and the matters that I raised with her. Of course, as I said in Mr Divis’ case, the fact that she is underrepresented does not alter the principles which I must apply.

7. I note that these applications have been on foot for more than a year and have been adjourned on a number of occasions. Lonergan J adjourned the matter so that Ms Roth and Mr Divis could obtain legal assistance. Senior and Junior Counsel appeared on one directions hearing. I was informed on 1 October 2019 by the Plaintiffs that they were no longer willing to assist. The chronology of the proceedings is annexed to the judgment in Mr Divis’ matter.

8. The principles which are to be applied are the same as in Mr Divis’ case. I will not repeat them in this judgement.

9. I should say that similarly to Mr Divis’ case I would not be prepared to dismiss the proceedings for want of due dispatch at this stage. Although it is correct that the proceedings were commenced in 2017 and the parties are still arguing about the form of the statement of claim, the matter has come before the Court on a number of occasions and has been subject to case management orders. It is also correct to say that there has been non-appearance by Ms Roth at some latter directions hearings but it does not seem to me that that has affected the progress of the matter in circumstances in which the applications were listed for hearing on 1 October 2019. Further, it must also be said that there has been some failure to comply with orders by Ms Roth but, again, that did not affect the hearing on 1 October 2019. I asked Ms Roth to confirm that she was seeking leave of the Court to amend her statement claim and she did so. She confirmed that she no longer wished to proceed against four of the eleven defendants she originally sued. She had filed written submissions and an affidavit which might be viewed as an affidavit in support.

10. The hearing on 1 October 2019 proceeded on the basis that the parties understood that Ms Roth was now seeking to rely on an amended statement of claim which is at page 39 to the affidavit of Raphael Hudson dated 27 September 2019 (Exhibit D). In addition, Ms Roth referred to her written submissions (at p. 34) and, similar to Mr Divis, the pleadings attachment (at p. 23) which she asserted contained the proper particularisation of her claim.

11. Mr Lee appeared on behalf of the first, second, third, fourth, fifth, 10th and 11th defendants and as amicus for the rest.

12. As set out in Ms Roth’s pleading attachment, she now only seeks to pursue her case against seven defendants. She wishes to discontinue her case against the other four defendants. As such, she wishes to discontinue against the second, third, fourth and seventh defendants and proceed only against the first, fifth, sixth, eighth, ninth, 10th and 11th defendants. In the circumstances it is only necessary to consider the claims against each of the first, fifth, sixth, eight, ninth, 10th and 11th defendants for the purposes of the applications before the Court on 1 October 2019.

13. Although Mr Lee did not appear on behalf of each of those defendants (that is, he did not appear on behalf of the Police officers who are sued directly) I have power to make orders in respect of those defendants, should I consider that the proceedings against them are untenable.

Factual background

14. Ms Roth is mother of Igor Divis. As set out in the statement of claim she makes a number of allegations against a Children’s Court Magistrate and Police officers associated with the arrest of Igor Divis and his holding in the cell at the Police station for a period of four hours. In general terms Ms Roth asserts that her son, Igor Divis, should not have been arrested and should not have been held at the Police station. She also makes submissions against two persons being the original 10th and 11th defendants (now the fifth and sixth defendants) to the effect that they made false allegations against her son and caused the arrest of her son.

15. Central to her claim, at least according to her oral submissions, is that she spent four hours in the cell with her son and he should not have been detained at all. She seeks the sum of $3 million from the defendants on the basis of a trespass to her property. In oral submissions she identified her son, Igor Divis, as her property. She says that she has suffered harm resulting from his arrest and being held and facing charges. As against the first defendant, being the Magistrate, she says that he, without just cause, caused her son to be detained at the Cobham Juvenile Facility. She says that she suffered emotional stress and psychological pain as a result of her son’s unjust detention. She seeks an order for compensation for false arrest and false imprisonment and assault.

The Result / Determination

16. As I indicated in Mr Divis’ case there would be no point in granting leave to Ms Roth to amend the statement of claim in the form on which she seeks to rely. The amended document suffers from the same deficiencies as the original document and the same result would likely ensue. Although she has not explained why she is reducing the number of defendants (other than suggesting that she was advised to do so) she is still seeking to proceed against seven defendants, one of whom is a judicial officer and a number of the others are Police officers.

17. I am not, at this stage, making any assessment of the nature of the harm that she maintains or making a decision on the accuracy of the facts which she asserts in the statement of claim (such as they are). Despite Ms Roth being invited on more than one occasion to address on and identify the legal basis on which she is pursuing the defendants, the submissions were very much focused on the harm that she has suffered. She identified Igor Divis as her property and she asserts that she suffered harm as a result of the taking away of her property from her.

18. Again, without repeating all of those matters on which I commented in Mr Divis’ case which apply equally to Ms Roth (relating to principles, procedure and the conduct of the matter to date) there are substantial difficulties for Ms Roth in continuing with the pursuit of these proceedings. Her application to amend the statement of claim does not overcome those difficulties or cure the deficiencies in the original statement of claim. She wishes to continue her action against seven defendants but there is no proper pleading of the case against the remaining defendants. It would not be possible for the defendants to properly plead to either her original or amended document.

19. The proceedings against the first defendant are bound to fail because of the principle of judicial immunity. The first defendant made orders as part of his judicial function. He is thus protected from suit by the common law principle of judicial immunity and having regard to the Judicial Officers Act 1986 (as referred to in Mr Divis’ case).

20. The second defendant was a person who was involved at the Cobham Juvenile facility. Ms Roth does not make clear in her pleading attachment as to the basis on which he is sued in the sense that she merely identifies that he was refused a contact visit whilst in Cobham Juvenile Facility as well as other matters. The case against the second defendant is liable to be struck out as it discloses no cause of action against the second defendant. Despite being invited to address on the causes of action or legal rights and obligations of the defendants, Ms Roth did not do so in any specific terms. The Court is not required to speculate on a possible cause of action. I am not able to even anticipate the basis on which the cause of action would exist as against the second defendant. It is thus appropriate that the proceedings against the second defendant be dismissed. Ms Roth has been afforded more than 18 months to properly form her claim against the second defendant, if there was one.

21. Each of the sixth, eighth and ninth defendants (being the defendants against whom Ms Roth wishes to continue her action) were Police officers at the relevant times. The Crown Solicitors wrote to Ms Roth on 27 November 2017 pointing out that those persons should not have been named defendants as it is not permissible to sue them directly (s 9(B)(2) of the Law Reform (Vicarious Liability) Act 1983. Irrespective of the factual accuracy of the matters raised in the so-called Pleadings Attachment Ms Roth is not entitled to proceed directly against those defendants and thus her case is bound to fail. In the circumstances the proceedings against those defendants should be dismissed.

22. That only leaves the two remaining defendants against whom Ms Roth wishes to continue her actions, being the 10th and 11th defendants. They were at the relevant time Deputy Principals at Igor Divis’ school. They provided statements to the Police about the conduct of Igor Divis. They are protected from suit by virtue of witness immunity. It does not matter whether the District Court ultimately accepted or did not accept their evidence. Further, Igor Divis was either found guilty or admitted the offence. Allegations against these two defendants could not, on not on the facts, have any substance.

23. Finally, there is another reason why Ms Roth’s proceedings should be dismissed, rather than merely struck out because of pleadings deficiencies. It was not clear from the original statement of claim whether Ms Roth was seeking to act as the tutor of Igor Divis in bringing the proceedings or pursuing a case in her own right. There is no reference in the amended statement of claim to her acting as tutor. I asked Ms Roth to clarify this at the commencement of the hearing. She stated that she was bringing the proceedings in her own name on her own behalf. She was not bringing the proceedings on behalf of Igor Divis. She blamed the legal representative for the defendants for the confusion. She thus seeks $3 million on the basis that her son was in some way wrongly arrested and treated poorly by the various defendants she seeks to pursue. She does not allege that she has suffered any psychiatric illness, although she consistently referred to her suffering harm as a result of the treatment of her son. She did not identify any basis on which she could recover damages or compensation arising out of the treatment of her son. It is not necessary for the purposes of this application to consider the provisions of the Civil Liability Act 2002 and speculate on possible causes of action.

24. In my view, the claims that she pursues against all of the remaining seven defendants are untenable and the proceedings constitute an abuse of process. Her claims are bound to fail. In any event, her statement of claim and even her proposed amended statement of claim would be liable to be struck out as disclosing no cause of action and both documents are deficient in terms of even basic pleading requirements.

25. In the circumstances the proceedings are dismissed pursuant to r 13.4 of the Rules. I would also have struck out the plaintiff’s statement of claim pursuant to r 14.28 of the Rules.

26. Although the hearing has been approached on the basis that the plaintiff would be relying on her proposed amended statement of claim and thus that she would be discontinuing against a number of defendants there is no utility in making an order granting leave to file the amended statement of claim as the amended statement of claim does not cure the deficiencies which I have identified and I would make the same order in respect of dismissal of the proceedings in any event.

27. I will hear the parties on the question of costs and the defendant’s costs of the proceedings, including costs of the motions determined on 1 October 2019.

**********

Decision last updated: 04 October 2019