Attorney General for the State of New South Wales v Bar-Mordecai

[2009] NSWSC 396

CITATION:	Attorney General for the State of New South Wales v Bar-Mordecai [2009] NSWSC 396
HEARING DATE(S):	10 & 11 December 2008
JUDGMENT DATE :	18 May 2009
JUDGMENT OF:	Smart AJ
DECISION:	leave to bring proceedings raising some causes of action but not others; Mr Bar-Mordecai to serve draft amended statement of claim complying with the Rules of Pleading before proceeding further
CATCHWORDS:	Vexatious litigant - claims not an abuse of process and prima facie ground exists for some claims, i.e. unlawful arrest, false imprisonment (part) and assault - no prima facie ground for negligence and malicious prosecution claims - defective and embarrassing draft further amended statement of claim - needs to be redrawn
LEGISLATION CITED:	Crimes (Domestic and Personal Violence) Act 2007 (NSW) Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) Supreme Court Act 1970 (NSW) Vexatious Proceedings Restriction Act 2002 (WA)
CATEGORY:	Principal judgment
CASES CITED:	Graham v Sutton, Carden & Co 1897 2 Ch 367 Hunter v Commissioner of Police [2003] WASC 10; BC 2003 00042 Phillip Morris Ltd v Attorney General for State of Victoria [2006] VSCA 21; (2006) 14 VR 538 Williams v Minister, Aboriginal Land Rights Act (1994) 35 NSWLR 497
TEXTS CITED:	Criminal Practice and Procedure NSW
PARTIES:	Attorney General for the State of New South Wales Michael Jacob Bar-Mordecai
FILE NUMBER(S):	SC 10622/04
COUNSEL:	K Oliver (for Attorney General) Mr MJ Bar-Mordecai (in person)
SOLICITORS:	IV Knight (Crown Solicitor - NSW) (for Attorney General) Mr MJ Bar-Mordecai (in person)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

Smart AJ

Monday 18 May 2009

10622/04 Attorney General for the State of New South Wales v Michael Bar-Mordecai

JUDGMENT

1 On 25 February 2005 this Court declared Michael Bar-Mordecai to be a vexatious litigant. He now seeks leave to file a Statement of Claim against the State of New South Wales. He is claiming damages for unlawful arrest, wrongful imprisonment, assault, negligence and malicious prosecution.

2 The causes of action pleaded in the proposed Draft Amended Statement of Claim served 8 December 2008 (“PDASC”) are said to arise out of the arrest and subsequent detention of the applicant, Mr Bar-Mordecai, on 17 March 2008 and his subsequent prosecution, which was dismissed, for knowingly contravening a prohibition in an apprehended violence order in breach of s 14(1) of the Crimes (Domestic and Personal Violence) Act 2007.

3 On 23 October 2007 the Local Court granted an AVO against the applicant on the application of a close family relative who was a protected person. The order was to remain in force for five years. The Local Court made three mandatory orders and this additional order:

“The defendant must not approach or contact the protected person by any means whatsoever, except through the defendant’s legal representatives.”

4 On 20 February 2008 the applicant filed an application in the Federal Magistrate’s Court that an order be made giving him access to the relative’s children every second Sunday for three hours except on religious holidays or school holidays.

5 That application (including the supporting affidavit) had to be personally served. On 20 February 2008 the applicant attempted to serve the application on a solicitor whom he understood represented the relative. That solicitor refused to accept service as he had no instructions to accept service.

6 About 4 March 2008 he handed a friend, a 76 year-old lady, at about 2.50 pm, at Botany street Bondi Junction, a sealed copy of the documents filed in the Federal Magistrate’s Court for her to serve on the relative. He had an arrangement to pick up the lady from a particular road after service had been effected. The relative lived in that lengthy road.

7 The applicant said he attended at Rose Bay Police station on 5 March 2008 at 7.30 am and spoke to an officer (not one involved in investigating the events of 4 March 2008).

8 The Police Facts Sheet (prepared by the arresting officer) taken substantially from the COPS entry at 21.21 hours on 4 March 2008 gives this version of events:

“About 3.00 pm Tuesday 04 March 2008 the Accused attended an address in Bondi Junction where the Witness also was visiting a friend. The Accused has asked the Witness, “Can you do me a favour?” The Witness has asked what this favour was and the Accused has replied, “I will drive you”.

Shortly after the Accused has driven the Witness to the Victims house at …. The Accused handed the Witness 12 pieces of paper being a Family Law Application and Affidavit. The Accused gave the Witness a description of the Victim and asked the Witness, “Could you give these to my [relative]” to which the Witness agreed. The Accused also told the Witness to tell the Victim the papers were from him before driving from the scene while the Witness waited at the location.

About 3.55 pm this date the Victim returned home. As the Victim exited her vehicle the Witness approached her. The Victim said, “Can I help you are you looking for someone”. The Witness replied, “You” and handed the Victim the 12 pieces of paper.

As the Victim looked at the papers she recognised they were from the Accused and asked the Witness if she was a legal representative of the Accused. The Witness stated, “I am a professional” where the Victim has requested her name. The Witness then stated, “[The accused] just asked me to give this to you” before she walked from the location.

After further questioning of the Witness by the Victim the Witness has stated, ‘I didn’t know, I didn’t know, I’m not professional, I’m nobody, [the accused] just asked me to give this to you’.

The Victim has followed the Witness and contacted Police who attended shortly after in Bon Accord Avenue, Bondi Junction. The Victim and Witness were spoken to and shortly after taken to Rose Bay Police Station where statements were taken. The witness could not provide police with any evidence that she was a legal representative of the Accused only an acquaintance.”

9 The applicant contested the accuracy of parts of this version of events but it may have been what the officer was told or inferred from what he was told. For present purposes any differences may not be material.

10 The applicant said that when he attended the Rose Bay Police station the police officer who spoke with him warned him not to serve documents on a protected person or family members. Thereafter he sought an order for substituted service or to dispense with service on his relative’s spouse. The applicant said that the Constable gave him an official warning for an alleged contravention of s 14(1) of the Crimes (Domestic and Personal Violence) Act 2007.

11 The NSW Police obtained legal advice concerning whether to charge the applicant with a breach of the AVO.

12 The COPS entry prepared by the police officer who spoke to the applicant reads:

“Date/Time Created: 05/03/2008 17:19
Created by : ROSE BAY – …
The POI attended Rose Bay Police station voluntarily after learning from other sources about police involvement.

Police had already spoken with Legal Advice in relation to charges, to which they had been advised not to pursue charges for the minor breach, especially after not being able to obtain a signed statement from the witness, and the fact that there was no harassment or intimidation towards the VIC.

Police informed the POI about the breach and gave him a stern warning in relation to his activities.
The POI explained to police the nature of the family court documents which needed to be served in person, and had already been refused by the VICs legal representative. The POI further claimed that he was unable to afford his own legal representative, and was left to have a friend serve the documents for him.
Police again informed the POI to not breach the conditions of the AVO, to which the POI acknowledged.”

13 On Monday 17 March 2008 a different police officer from the one who spoke to the applicant but one who had been involved in dealing with the applicant’s close relative and the witness on 4 March 2008 (the principal arresting officer), left Rose Bay Police Station about 7.35 am with another police officer and drove to premises in Rose Bay where applicant lived with his mother, father and brother.

14 The principal arresting police officer placed the applicant under arrest for breaching an Apprehended Violence Order taken out against him by his close relative and told him that he would be taken to Waverley Police Station. The applicant’s offer to drive himself to Waverley Police Station and meet the officer there in the afternoon was rejected. The applicant protested strongly over his arrest.

15 No explanation appears in the police papers why it was decided, after a lapse of 13 days and in the light of the advice received, to arrest the applicant, take him to and hold him at the police station.

16 The Court Attendance Notice issued to the applicant at Waverly Police Station on 17 March 2008 records that the applicant was apprehended at 8.05 am on 17 March 2008 and reads:

“Details of Offences

“001 Crimes (Domestic and Personal Violence) Act 2007, Section 14(1)

Contravene prohibition or restriction in an apprehended violence order at 8.00 am on 17/03/2008 at …

Did knowingly contravene a prohibition order specified in an order”

17 Those details contain mistakes as to the date and time of the alleged offence. It seems that the police confused the date and time of the alleged offence with those of the arrest. In the subsequent formulation of the charge the erroneous details were not included.

18 The Court Attendance Notice required the applicant to attend the Waverley Local Court on 27 March 2008. The hearing was adjourned to 8 May 2008.

19 On 20 March 2008 the applicant had written to the Presiding Magistrate challenging the accuracy of what was written in the police document headed “Full Facts” and said that his conduct in having commissioned the 76 year-old lady as his “legal representative”, even though she had no legal qualifications in law which is legally permitted, to serve an initiating process in the Federal Magistrate’s Court jurisdiction was neither blameworthy, reprehensible nor a breach of the AVO. The applicant sought the dismissal of the proceedings. The police alleged that the lady made a statement to the police on the day of the breach and additional sworn statements to South Australian Police on 29 April 2008.

20 On 7 May 2008 police received a doctor’s certificate from a Registrar, Royal Adelaide Hospital that the lady’s appearance at Court would be detrimental to her health. It does not seem to have been tendered at the Local Court hearing.

21 On 8 May 2008 the Local Court, with the consent of the parties, proceeded on the basis of the prosecution brief and the applicant’s bundle which included written submissions, a copy of a transcript (probably that of the AVO proceedings), a copy of the Family Law application of the applicant together with rules and regulations as to service.

22 During the hearing the Magistrate commented, “The first constable’s idea was the right one. I don’t know who intervened to have it proceed this far …”

23 In giving her decision, the Magistrate said:

“There’s two issues that relate to this offence. One is what is the definition of a legal representative as opposed to a legal practitioner. It would seem in one respect I don’t have to go into that today because although I believe that legal representative can mean a number of things depending on the circumstances of the case, I think that for the purpose of this decision I do not have to take that any further.
I DO HOLD, ON THE MATERIAL BEFORE ME, AT ITS HIGHEST AND I REALLY MEAN AT IT HIGHEST, THAT THERE IS A PRIMA FACIE CASE. However in relation to looking at the element of the offence which is knowingly contravene a Apprehended Domestic Violence Order, in light of the situation that these were authentic, valid court documents, required to be served, an attempt had been made to serve it on the last known solicitor for, apparently, the person in need of protection. That had been unsuccessful. The fact that Mr Barmordecai then sought to have it served as he believed he must personally, by the use of friend who, in the end of the day, could have been a process server for all one was to know. There is no evidence that she intimidated the person in need of protection, offered any threat, but simply passed over the papers and said “These are from [the applicant]”. Seventy-six year-old woman. Mr Barmordecai was nowhere to be seen on the day. Under all those circumstances I CAN’T BE SATISFIED OF THE ELEMENT OF KNOWINGLY CONTRAVENE THE APPREHENDED DOMESTIC VIOLENCE ORDER AND THE COURT ATTENDANCE NOTICE WILL BE DISMISSED.”

24 That ruling is not determinative of this application.

25 It is convenient now to consider the substance of two of the applicant’s causes of action.

Wrongful arrest and wrongful imprisonment

26 In paragraph 25 of the Draft Amended Statement of Claim the applicant alleges:

“(a) …

(b) The arresting Police officers either did not suspect or did not have reasonable grounds to suspect that the applicant had committed an offence, and

(c) It was not necessary and the arresting Police officers did not have reasonable grounds to suspect it was necessary to arrest the applicant to achieve one or more of the purposes in s 99(3) of the Law Enforcement (Powers and Responsibilities) Act 2002.”

27 Section 99(1) of the last mentioned Act empowers a police officer, without warrant, to arrest a person in the act of committing an offence under any Act or statutory instrument or who has just committed any such offence or where the person has committed a serious indictable offence for which he has not been tried. Subsections 99(2) and (3) provide:

“(2) A police officer may, without a warrant, arrest a person if the police officer suspects on reasonable grounds that the person has committed an offence under any Act or statutory instrument.
(3) A police officer must not arrest a person for the purpose of taking proceedings for an offence against the person unless the police officer suspects on reasonable grounds that it is necessary to arrest the person to achieve one or more of the following purposes:
(a) to ensure the appearance of the person before a court in respect of the offence,
(b) to prevent a repetition or continuation of the offence or the commission of another offence,
(c) to prevent the concealment, loss or destruction of evidence relating to the offence,
(d) to prevent harassment of, or interference with, a person who may be required to give evidence in proceedings in respect of the offence,
(e) to prevent the fabrication of evidence in respect of the offence,
(f) to preserve the safety or welfare of the person.”

28 In the second reading speech (Hansard, Legislative Assembly, 17 September 2002), the Attorney General said:

“Part 8 of the Bill substantially re-enacts arrest provisions of the Crimes Act 1900 and codifies the common law. The provisions of Pt 8 reflect that arrest is a measure that is to be exercised only when necessary. An arrest should only be used as a last resort as it is the strongest measure that may be taken to secure an accused person’s attendance at court. Clause 99, for example, clarifies that a police officer should not make an arrest unless it achieved the specified purposes, such as preventing the continuance of the offence …”

29 The authors of Criminal Practice and Procedure NSW write at p 626,002:

“Before the enactment of s 99, it was said that the power of arrest for an offence should not be exercised unless it is necessary to ensure the accused’s attendance before the court and only where a summons would not be appropriate: Fleet v District Court of NSW [1999] NSWCA 363; BC9906539; (1999) 6 Crim LN 82 [1061]; Director of Public Prosecutions v Carr (2002) 127 A Crim R 151; [2002] NSWSC 194; BC200201026; (2002) 9 Crim LN [1401]. See also Wilson v DPP [2002] NSWSC 935; BC200206024. Section 99(3) now confines the use of arrest for the purposes of taking proceedings for an offence to certain defined circumstances.”

30 I respectfully agree with the views expressed. I take the view that s 99(3) restricts the circumstances in which the power under s 99(2) may be exercised.

31 The decision in the present case to proceed by way of arrest rather than summons was surprising. Counsel for the Attorney General relied on the nature of the offence alleged, namely a failure to obey a previous order by the Local Court. That order was a protective one. Counsel submitted that the very character of the offence would have provided necessarily reasonable grounds for the arresting officer, or the officer authorising the arrest, to suspect that arrest and the obtaining of a suitable undertaking on bail were reasonably necessary to prevent either a repetition of the offence or the possible harassment of the complainant and therefore ss 99(3)(b) or 99(3)(d), or both, were objectively satisfied by reference to the nature of the offence at the time the decision to arrest was made.

32 I disagree that the very character of the offence would have provided necessarily reasonable grounds as suggested. The use of the word “necessarily” puts the matter at too high a level. That submission by the Attorney General loses a lot of its force when it is recalled that some 13 days (4 – 17 March 2008) elapsed between the offence alleged and the arrest and the applicant had voluntarily attended Rose Bay Police Station on 5 March 2008, and had received a stern warning. Legal advice had been received not to proceed. There was no suggestion of any “repeat offence” between 4 and 17 March 2008. The State will be able to advance its contentions at a trial of the action. The plaintiff has substantial contentions to the contrary.

33 Additionally, as the Magistrate pointed out, there was no evidence that the 76 year-old lady serving the Family Law documents intimidated the person in need of protection or offered any threat. That lady simply passed over the papers and said, “These are from [the applicant]”. Mr Bar-Mordecai was nowhere to be seen.

34 On the facts as presently known, and known on 17 March 2008, I entertain doubt whether the State’s contentions are correct. The plaintiff’s contentions to the contrary are, at the least, reasonably arguable.

35 The manner in which the applicant has pleaded his cause of action is defective. Sub-paragraph (a) of paragraph 25 is unnecessary and inapplicable. Sub-paragraph (b) is not sustainable. There were reasonable grounds to suspect that the applicant had committed an offence (contravening a restriction in the AVO). The prosecution case was reasonably arguable. The allegation in sub-paragraph (c) of paragraph 25 is the critical one. The reasonably arguable applicant’s case is that the power in s 99(2) of the Act was not exercisable because the police officer did not have reasonable grounds to suspect that it was necessary to arrest the applicant to achieve any one or more of the purposes specified in s 99(3)(a) – (f). I regard many of the allegations contained in the Statement of Claim as unnecessary and embarrassing and liable to be struck out.

36 In my opinion the applicant has shown that an action based upon unlawful arrest is not an abuse of process and that there is a prima facie ground for the action.

37 The applicant complains that he was wrongfully imprisoned. It is his case that shortly after his arrest he was searched, placed in a caged police truck and taken to Waverley Police Station where he was charged. He complains that he was kept in custody there for some hours. There is a dispute as to the precise time he was released but it appears from the police records that he was kept at the Waverley Police Station from about 8.50 am to about 12.35 pm.

38 It was at least reasonably arguable that the applicant should not have been arrested in the circumstances including that none of the provisions of s 99(3) applied. It was at least reasonably arguable that the plaintiff was unlawfully imprisoned. There may be scope for the State to argue that, after the applicant was formally charged with an offence and until he was granted bail and released, the imprisonment was lawful. That is a matter for the trial.

39 In my opinion the applicant has shown than an action based on false or wrongful imprisonment is not an abuse of process and that there is a prima facie ground for the action.

40 There was a further case made by the applicant on the ground of unlawful imprisonment. He contends that he was detained in excess of the four-hour investigation period. The applicant arrived at Waverley Police Station about 8.50 am (T 42). The applicant said that he was not released shortly after he signed his bail undertaking. The applicant said “I was released about 10 to 1 or 5 to 1” (T44). The bail undertaking was signed by Mr Bar-Mordecai on 17 March 2008 and states the time as 12.30 pm. The custody management record shows his time of release at 12.35 pm. Mr Bar-Mordecai regarded this as incorrect. Irrespective of whether this was so, it appears that he was initially reluctant to sign the Bail undertaking and that an officer from Legal Aid attended at the police station and advised Mr Bar-Mordecai to sign it. This would have taken some time which is not to be taken into account. Also not included in determining how much of the investigation period has elapsed is “any time that is reasonably required to carry out charging procedures”. I am not satisfied that when the allowances specified in s 117(1) of the Act are made, as they should be, the applicant was detained for longer than the investigation period of four hours. The applicant should not be given leave to pursue his alternate or further case of unlawful imprisonment.

Assault

41 There is evidence of an assault. The applicant was searched and placed against his will in a caged police truck, taken into Waverley Police Station and placed in a holding cell.

42 The applicant further complains that while he was detained at Waverley Police Station in a holding cell, the custody sergeant at about 12.30 pm demanded that he supply his finger-prints. The applicant has alleged that he refused to comply with the demand, that the custody sergeant then threatened the applicant with force, that is, by being held down by four police officers and that he (the applicant) intimated that he would physically and strenuously resist being violated and held down. The applicant further alleges that he feared and had reasonable grounds to fear for his safety.

43 The assistant arresting police officer, in her statement of 22 April 2008, said that at 10.00 am on 22 April 2008 in the charge room at Waverley Police Station the applicant refused her request to allow her to take his finger-prints and a photo and told her that she would need a court order. She said that he refused to sign any paperwork. The principal arresting officer’s statement was to the same effect. He further stated that the custody sergeant said words to the effect of “if you don’t sign these bail papers I have no alternative but to put you before the courts today and I can’t say when that will happen.” The assistant arresting officer said that about 11.00 am on 17 March 2008 she and her colleague left Waverley Police Station. He said that this was on completion of the charging process.

44 Reliance was placed by the Attorney General on s 133 of the Law Enforcement (Powers and Responsibilities) Act 2002 which provides:

“(1) A police officer may take or cause to be taken all particulars that are necessary to identify a person who is in lawful custody for any offence.
(2) If the person is over the age of 14 years, the particulars may include the person’s photograph, finger-prints and palm-prints.”

45 The applicant submitted that the power of a police officer to take finger-prints depends upon him (the applicant) being in lawful custody and that he was not in lawful custody. I have not overlooked s 138B of the Act. The applicant did not consent to his finger-prints being taken. Nor have I overlooked s 230.

46 It was common ground that the custody sergeant did not take the applicant’s finger-prints and a photo or cause them to be taken. In his evidence the applicant (at T50) said that the start time of the charging process was about 10.00 am that that it went from 10.00 am to 11.00 am - he regarded that as the preparation and completion of the court attendance notice.

47 On p 3 of the Custody Management Record there is a note to the effect that at about 12.34 pm on 17 March 2008 contact was made with a Waverley Legal Aid practitioner. The applicant agreed that he spoke to an officer from Waverley Legal Aid but said that this occurred at about 11.10 am.

48 The Custody Management Record appears to be a contemporaneous record, albeit that parts of it are challenged by the applicant. It records that the applicant decided to acknowledge his bail after consultation with Legal Aid.

49 The charging process appears to have been completed by about 11.00 am. The applicant was not prepared to sign his bail undertaking until he had received advice from an officer from Legal Aid. He was suspicious of the police and anything that they requested or required.

50 If the applicant is correct that he obtained advice from Legal Aid from about 11.10 am it would seem unusual for him to remain at the Waverley Police Station until after noon. If the custody record is correct in suggesting that the Legal Aid advice was given around about 12.34 pm, that would explain the applicant’s release about 12.50 to 12.55 pm, or a little earlier.

51 The evidence in support of the threats allegedly made by the custody sergeant is that of the applicant. I would not place great weight on the applicant’s estimate of the time they allegedly occurred. The events and records revealed by the evidence provide no support of any weight for the applicant’s allegations. The applicant has not suggested that there were any witnesses to the encounter between him and the custody sergeant as to finger-printing. It would probably be a case of word against word. The proposed action is not an abuse of process. The applicant’s evidence, if accepted, would establish a prima facie case. It is not clearly hopeless.

52 I propose to grant leave to the applicant to institute proceedings for assault covering both the initial events and the alleged threats made by the Custody Sergeant.

Negligence

53 The applicant alleges that the police officers who had the carriage of the his arrest, detention and charging and release on bail owed him a duty of care and that breaches of that duty of care occurred in respect of his arrest. The applicant supplied these particulars of negligence:

“a. The arresting officers and their superiors failed to obtain proper legal advice on what a legal representative was before the arresting officer arrested the Applicant;

b. The arresting police officers failed to follow the legal advice they had obtained not to arrest the Applicant;

c. The arresting police officers followed the instruction of the person who ‘intervened’ to order the arrest of the Applicant;


d. The arresting police officers failed to exercise their prerogative to believe that the Applicant was guilty as charged;

e. The arresting police officers were negligent in accepting an order from the person who ‘intervened’ that the Applicant was guilty as charged and failing to exercise their own beliefs in the matter;

f. The arresting officers could and should have written a Court Attendance Notice [CAN] for the Applicant without arresting him and then served him a copy of the CAN.”

54 The cause of action in negligence is not available. The applicant’s causes of action are for wrongful or unlawful arrest and wrongful imprisonment.

55 Leave is refused to institute proceedings relying on a cause of action in negligence.

Malicious prosecution

56 Paragraph 38 of the Proposed Amended Statement of Claim reads:

“38 The tort of malicious prosecution was committed when the arresting Police officers maliciously and without reasonable cause initiated a judicial proceeding against Michael Bar-Mordecai which resulted in favour of the Applicant and caused damage to the Applicant’s reputation, mental well being, compromised the Applicant’s freedom and his property. The Applicant claims that the Police Officers from Rose Bay Police Station:

a. Instituted and pursued a criminal action [ Police v Bar-Mordecai CNI652069118] for a malicious purpose as of 17.3.2008;

b. Were offered to withdraw the litigation by consent on 20.3.2008 by letter without prejudice, but pressed on regardless;

c. Pursued the action without reasonable and probable cause:

(i) The Applicant had not served the court appointed documents himself on the protected person but sent an agent to serve the documents;

(ii) The agent who the Applicant appointed as his legal representative to serve documents was not a legal practitioner and there was no requirement for such an agent to be a legal practitioner to effect service [a menial task in the administration of justice] of the Court appointed documents;

(iii) The Police investigating officer determined to arrest for an alleged minor breach contrary to the Police brief as found in the incident report;

(iv) The Applicant had not ‘just committed’ an offence but he was arrested 13 days later;

(v) It was open to the investigating officer to recommend an issue of a CAN without an arrest as s99(3) was not relevant in the circumstances;

(vi) The arrest was unlawful because the AVO was not breached, the victim was not harmed, intimidated or harassed, and the Police had not obtained a signed statement from the Applicant prior to the arrest or after the arrest and prior to the prosecution on 8.5.2008;

(vii) The arresting Police officers did not suspect on reasonable grounds and had no belief in any guilt of the Applicant but they were instructed by the person who ‘intervened’ to simply arrest and transport the Applicant to Waverley Police station. Prior to the arrest, the arresting police officers had refused to listen to the Applicant’s arguments that established his innocence [see the various police officers’ notes];

(viii) The arrest was made contrary to s 99(3) of the Law Enforcement (Power and Responsibilities) Act 2002;

The proceeding was groundless and was dismissed in favour of the Applicant/victim of the malicious prosecution …

The Applicant’s interest in freedom was not safeguarded from the unjustifiable litigation, involving as it did, his public standing of the Applicant in the community.

The prosecution caused a loss of the Applicant’s liberty with damaging his reputation.

With the tort of malicious prosecution the Applicant alleges that:

1. The arresting Police officers had brought about the proceedings on 17.3.2008 when they arrested the Applicant and then instigated the proceedings by serving on the Applicant the Court Attendance Notice [CAN];

2. The Magistrate was wrong in having given the Police the benefit of the doubt and placing the material before her “at its highest, and I really mean at it highest, that there is a prima facie case” [T8.12]. It is not for the magistrate to place material at its highest for a party’s benefit.

3. The arresting police officers under the direction of the person(s) who ‘intervened’ either on behalf of the Attorney General in and for the State of NSW or the NSW Police Force, arrested the Applicant in circumstances that the ‘Police had already spoken with Legal Advice in relation to the charges, to which they had been advised not to pursue charges for the minor breach, especially after not being able to obtain a signed statement from the witness, and the fact that there was no harassment or intimidation towards the victim’.

4. In circumstances that the Applicant had explained to the Police the nature of the family court documents which needed to be served in person, and had previously been refused service by the victim’s legal representative.

5. The arresting Police officers’ conduct was without reasonable or probable cause in that Legal Advice had advised not to prosecute the Applicant.

6. The arresting Police officers failed to find out who a legal representative could be – be it an agent without legal qualifications.

7. The arresting Police officers also actuated by malice – the pursued the prosecution for a collateral purpose following the orders of the person(s) who ‘intervened’.

8. Police informed the Applicant about the alleged breach and gave him a stern warning in relation to having a person with an AVO served. The Applicant immediately filed an application for substituted service in the Federal Magistrate’s Court.

9. The proceedings terminated in the Applicant’s favour on 8.5.2008 …”

57 These comments need to be made:

(a) The Magistrate did not give the police the benefit of the doubt and was not in error when considering whether there was a prima facie case in taking the evidence of the prosecution at its highest.

(b) a favourable determination by the Magistrate does not mean that the prosecution was malicious. An analysis has to be undertaken of the evidence and the material available to the prosecution and the material reasonably thought to be available to the prosecution. Allowance has to be made for contingencies, for example, a potential witness becoming ill or being too ill to travel or simply not turning up although notified of the hearing date or being reluctant to give useful evidence. Allowance also has to be made for differing legal views of the facts that are reasonably arguable.

(c) The prosecution contended:


(a) “legal representative” where used in the additional earlier quoted AVO order meant a legal practitioner acting on behalf of the defendant

(b) If the phrase “legal representative” should be given a broader meaning, the 76 year-old lady could not be classed as the “defendant’s legal representative”. She was simply a friend or acquaintance of the applicant who had been asked to hand the family law papers to his close relative.

(c) The 76 year-old lady could be described as the applicant’s agent and in having her approaching or contacting the protected person he was approaching or contacting the protected person by his agent. The order forbad approaches or contact by the applicant “by any means whatsoever”.

58 Each of these contentions was reasonably arguable and could form the basis of a suspicion on reasonable grounds under s 99(2). The legal advice given to the police about 3 or 4 March 2008 was based on how it was considered the discretion to prosecute should be exercised. When there is a reasonably arguable prosecution case, the prosecution does not become malicious because the prosecutor disagrees with the advice given as to how the prosecutorial discretion should be exercised.

59 The Magistrate who dismissed the charge attached importance to the word “knowingly” in s 14(1) of the Crimes (Domestic and Personal Violence) Act 2007 which provides:

“A person who knowingly contravenes a prohibition or restriction specified in an apprehended violence order made against the person is guilty of an offence. ”

60 The maximum penalty is imprisonment for two years or 50 penalty units, or both.

61 I have noted s 14(8) of the Act.

62 The Magistrate appears to have thought that there was very little in the charge and that at most there was a minor breach. She was not satisfied that the applicant knowingly committed a breach. Both parties made submissions to this Court as to the meaning of the phrase “defendant’s legal representative”. It is not necessary to resolve that debate or whether the defendant knowingly contravened the restriction when he asked a friend to hand the family law papers to his close relative. It suffices that the prosecution case was reasonably arguable on both points.

63 While I do not regard this cause of action as an abuse of process, I am not satisfied that the applicant has established a prima facie ground for the cause of action of malicious prosecution. I would not give the applicant leave to institute proceedings including this cause of action.

64 I should comment upon some further submissions of counsel for the Attorney General:

a. Counsel contended that the Court should dismiss the plaintiff’s application for leave to institute proceedings if it was not satisfied that the applicant’s Proposed Draft Amended Statement of Claim was in an acceptable form. I have granted leave to institute proceedings in respect of some alleged causes of action but not others. The applicant should have leave to formulate an acceptable Amended Statement of Claim in accordance with these reasons. If he does not do so he runs the substantial risk of having his application for leave to institute proceedings dismissed. The applicant has had numerous attempts at drafting a Statement of Claim and has sought to raise causes of action that have no prospect of success. His core allegations are reasonably discernible and centre upon the lawfulness of his arrest. The applicant should be afforded an opportunity to draft a Statement of Claim in accordance with the leave given in this judgment.

b. It was submitted that considerable weight should be attached to the previous judgments in this Court reflecting adversely upon the applicant. Reliance was placed on Graham v Sutton, Carden & Co 1897 2 Ch 367. That was a different case. Proceedings were stayed because the plaintiff vexatiously conducted the proceedings which he had instituted and had not paid the costs ordered of certain interlocutory proceedings. Lopes LJ referred to an earlier judgment of Rigby LJ that the court could take judicial notice of an earlier judgment (apparently in those proceedings). Chitty LJ in Graham referred at p 371 to an earlier judgment in the same proceedings showing that the plaintiff had conducted the particular action vexatiously.

The effect of this submission was that the evidence of the applicant should not be accepted. As to the causes of action of unlawful arrest, wrongful imprisonment on the first basis (but not on the second basis, i.e., that he was held for longer than the permitted investigation period) and the cause of action of assault related to the initial searching, arrest and transporting to Waverley Police Station, much of the evidence on the permissible cause of action does not seem to be in dispute and the applicant relies, to a significant extent, on what appears in the police records.
The second basis of the claim of assault, based on what the custody sergeant allegedly stated, is in a different category. I do not think that I should determine in advance, without hearing from the custody sergeant that the applicant’s case is not to be accepted on the point.
The State relied on Hunter v Commissioner of Police [2003] WASC 10; BC 2003 00042. That involved the construction of s 6(5) of the Vexatious Proceedings Restriction Act 2002 (WA). Section 6(5) requires the Court to dismiss the application for leave to institute proceedings if it considers that the affidavit required to support the application does not disclose what is required by s 6(3), the proceedings are vexatious or there is no prima facie ground for the proceedings. At [18] Pullin J said (omitting citations):
“In the present context the phrase ‘prima facie grounds’ means … that there is a legal basis for the claim and that there is some evidence referred to in the affidavit in support of the application which, if accepted, would be capable of sustaining the proceedings.”
I do not disagree with Pullin J.

65 Counsel for the Attorney General drew my attention to Williams v Minister, Aboriginal Land Rights Act (1994) 35 NSWLR 497. At 512 D – G it was accepted by Kirby P that the plaintiff in an action for false imprisonment did not have to prove that he was falsely imprisoned. He had to establish only that he was imprisoned. If he did so, it was for the defendant to prove that he did not falsely imprison, i.e., that the act of imprisonment was legally justified. Priestley JA agreed with Kirby P. The latter adopted a statement made by Crockett J, with whom O’Bryan and Gray JJ concurred, in Carnegie v Victoria (14 September 1989, unreported, Full Court of the Supreme Court of Victoria).

66 Counsel also drew my attention to Phillip Morris Ltd v Attorney General for State of Victoria [2006] VSCA 21; (2006) 14 VR 538. At [12] Maxwell P pointed out that the power to grant leave to a vexatious litigant is discretionary. Under s 84 of the Supreme Court Act (NSW) the power is unavailable unless the court is satisfied that the proceedings are not an abuse of process and that there is a prima facie ground for the proceedings. The applicant’s tendency in his Statement of Claim and his evidence to stray into surplusage and irrelevancy can be controlled as it arises. Ormiston JA at [118] held that the Court should be free to halt in limine a claim dependent on a patently false fact, notwithstanding that it will be necessary to reach that factual conclusion before characterising the claim as an abuse of process. Eames JA at [153] agreed. Section 84 is cast in different terms from the Victorian legislation and the plaintiff has, as mentioned, to satisfy the requirements of s 84 of the Supreme Court Act. The Victorian decision is an illustration of the practice of the Court to avoid abuses of process.

67 In reliance upon the submission that the Court cannot be satisfied that the proposed proceedings do not amount to an abuse of process, counsel for the Attorney General relied upon the applicant’s assertion that he was taken to the police station and held for the ulterior purpose of obtaining his “mugshot” and his finger-prints. That theory of the applicant is improbable. It was not in dispute that the assistant arresting officer asked the applicant if she could take his photo and finger-prints. The applicant contends that the custody sergeant later said that he wanted to take the same course. Assuming that the applicant has drawn the wrong or an improbable inference that does not make the causes of action, as limited by this judgment, an abuse of process.

68 The applicant has a tendency to range over a wide field in making his allegations. A vexatious litigant should not be denied access to the Courts as to legitimate causes of action and in respect of which there is prima facie ground for the proceedings. It is equally important that defendants do not have to go to the trouble and expense of meeting claims that are vexatious and in respect of which the Court is not satisfied that there is prima facie ground for the proceedings proposed.

69 I would not be prepared to grant leave to proceed on the basis of the proposed Draft Amended Statement of Claim (Ex 5). It is embarrassing and defective in form, does not comply with the rules of pleading, contains much irrelevant material and embraces or purports to embrace causes of action in respect of which no prima facie ground exists. The pleading of his particulars of injuries and his claims for damages requires revision. The applicant should appreciate that he should plead the material facts of each of the causes of action which I have held to be permissible and supply the particulars required under the Rules of Court. Argument is not allowed in a Statement of Claim. Paragraphs 39, 40 and 41 should be omitted from any further draft of an amended statement of claim. Those are not the only provisions which should be omitted. The draft needs to be radically re-cast.

70 Allowing for the applicant being unrepresented, I direct that he serve on the defendant within two months his proposed Amended Statement of Claim (with a copy to my Associate). I will list the matter for mention at 9.30 am on 24 July 2009 when a date will be fixed for any further argument, if necessary.

**********