Austin v Dwyer and Ors (Ruling)
[2023] VCC 889
•5 June 2023
| IN THE COUNTY COURT OF VICTORIA AT Melbourne COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| GENERAL LIST |
Case No. CI-22-04028
| FIONA AUSTIN | Plaintiff |
| v | |
| DETECTIVE TRENT DWYER | First Defendant |
| and | |
| VICTORIA POLICE | Second Defendant |
| and | |
| STATE OF VICTORIA | Third Defendant |
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JUDGE: | HER HONOUR JUDGE TRAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 16 May 2023 | |
DATE OF RULING: | 5 June 2023 | |
CASE MAY BE CITED AS: | Austin v Dwyer and Ors (Ruling) | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 889 | |
RULING
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Subject:PRACTICE AND PROCEDURE
Catchwords: Strike out application – functions of pleadings – tort law - false imprisonment – collateral abuse of process – misfeasance in public office – necessary and proper parties where alleged police tort
Legislation Cited: Civil Procedure Act 2010, s7, s8; County Court Civil Procedure Rules 2018, r9.06(a), r13, r23.02, r23.04; Victoria Police Act 2013 (Vic), s74, s75
Cases Cited:Hoh and Ors v Frosthollow Pty Ltd and Ors [2014] VSC 77; Roberts v Harkness (2018) 57 VR 334; Wheelahan v City of Casey (No 12) [2013] VSC 316; SMEC Australia Pty Ltd v McConnell Dowell Constructors (Aust) Pty Ltd [No 2] [2011] VSC 492; Lock v Australian Securities and Investment Commission [2016] FCA 31; Leinenga & Anor v Logan City Council [2006] QSC 294; Three Rivers District Council v Governor and Company of the Bank of England (No 3) [2003] 2 AC 1; Sheahan v Brett-Young & Ors (No. 4) [2016] VSC 53; Ruddock v Taylor (2005) 222 CLR 612; CPCF v Minister for Immigration and Border Protection [2015] HCA 1; R v Deputy Governor of Parkhurst Prison; ex parte Hague [1992] 1 AC 58; Trobridge v Hardy (1955) 94 CLR 147; Trotter v State of South Australia (unreported, SASC, No. S3713, 27 November 1992); Trotter v State of South Australia (unreported, SASC, No. S4702, 28 July 1994); Groom v State of South Australia [2017] SASCFC 35; Burton v Office of the Director of Public Prosecutions [2019] 100 NSWLR 734; Williams v Spautz (1992) 174 CLR 509; Varawa v Howard Smith Company Ltd (1911) 13 CLR 35; Dowling v Colonial Mutual Life Assurance Society Limited (1915) 20 CLR 509; Spedding v Stateof New South Wales [2022] NSWSC 1627; Sheehan v Brett-Young & Ors(No. 4) [2016] VSC 53; Cannon v Tahche [2002] VSCA 84; Northern Territory v Mengel (1995) 185 CLR 307; Ea v Diaconu (2020) 102 NSWLR 351; Mullet v Nixon [2016] VSC 512
Ruling: Application granted
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | - | - |
| For the Defendants | D P McCredden | Victorian Government Solicitor’s Office |
HER HONOUR:
1By Writ and Statement of Claim filed 2 May 2022, Fiona Austin claims damages for the torts of false imprisonment, collateral abuse of process and misfeasance in public office. Ms Austin’s claims arise from events commencing with her arrest on the steps of the Melbourne Magistrates’ Court on 7 December 2016 and culminating in her being found guilty by a jury of criminal offences and sentenced to a term of imprisonment in March 2022.[1] She has named three defendants to the proceeding: Detective Trent Dwyer, Victoria Police and the State of Victoria.
[1] Paragraph 170 of the Statement of Claim
2The State of Victoria, has applied for orders:
(a) striking out Ms Austin’s Statement of Claim; and
(b) removing Detective Trent Dwyer and Victoria Police as defendants to the proceeding.
3The State of Victoria submits that Ms Austin’s Statement of Claim does not disclose a cause of action, is embarrassing and will prejudice or delay the fair trial of the proceeding and contains “multiple prolix, confusing, irrelevant, unnecessary and frivolous allegations”.[2] It submits that the Statement of Claim should be struck out. It also submits that Detective Trent Dwyer and Victoria Police are neither necessary nor proper parties to the proceeding by virtue of the provisions of the Victoria Police Act 2013 (Vic) (“the Police Act”) and should be removed as defendants.
[2]Paragraph 3 of the third defendant’s submissions in relation to strike out application dated 18 November 2022
4Although Ms Austin did not appear at the hearing of the State of Victoria’s application, it is apparent from material filed by her prior to the hearing that she opposes the striking out of her Statement of Claim and the removal of Detective Trent Dwyer as a defendant to the proceeding. However, she does not oppose the removal of Victoria Police as a defendant to the proceeding.
Procedural background
5Ms Austin commenced this proceeding in the Supreme Court. On 1 September 2022, Justice John Dixon ordered that the proceeding be transferred to the County Court under ss30(2) of the Courts (Case Transfer) Act 1991 (Vic). The State of Victoria’s application by summons was then listed for hearing in the County Court on 17 November 2022. A directions hearing was also listed for the same date. On 10 October 2022, a County Court Deputy Registrar informed the parties of the listed hearing date by email to their email addresses for service. A sealed summons was issued by the County Court registry on 18 October 2022. A Deputy Registrar directed the State of Victoria to serve the summons on Ms Austin.
6On 8 November 2022, the Court received an email from the State of Victoria, copied to Ms Austin at her email address for service, stating that it had received no response from Ms Austin and that they believed that Ms Austin may be in custody. There then ensued correspondence between my associate and the State of Victoria, always copied to Ms Austin at her email address for service, in relation to the hearing date. There was no response by Ms Austin to the continued correspondence. The hearing was adjourned twice, first to 1 December 2022 and on the second occasion to 14 December 2022, principally because of concerns raised by the State of Victoria that Ms Austin may not have received notice of the hearing.
7By Order made 29 November 2022, I required the State of Victoria to take all reasonable steps to serve on Ms Austin a copy of the material filed in support of its application; my Order of 29 November 2022, and correspondence with the Court.
8On 5 December 2022, the Court received a handwritten letter from Ms Austin stating that she did not receive the relevant documents until 5 December 2022. In that letter, Ms Austin also:
(a) raised concerns that decisions had been made in this proceeding that adversely affect Ms Austin without her knowledge;
(b) submitted that I was either incompetent or had committed a deliberate act designed to pervert the course of justice and was not fit to preside over these proceedings;
(c) raised concerns that she had no access to documents related to this proceeding whilst imprisoned;
(d) raised concerns that this matter could not be dealt with via video link and should be dealt with by in-person appearance;
(e) submitted that this matter should not be conducted whilst she was imprisoned;
(f) stated that she would not be attending any “telecourt” proceedings; and
(g) stated that the proceeding should be adjourned to at least June 2023.
9The hearing proceeded on 14 December 2022, by Zoom. My associate arranged a video link with the prison so that Ms Austin could appear. The Court was informed by a prison officer that Ms Austin was available, but that she refused to enter the room from which the video link was available. Nevertheless, having considered Ms Austin’s letter of 5 December 2022, I adjourned the further hearing of the summons to 10 February 2023. I also determined that I would treat Ms Austin’s letter of 5 December 2022 as an application that I recuse myself from further hearing of the proceeding, and adjourned that application to be heard on 10 February 2023.
10The hearing on 10 February 2023 was held in person. My associate arranged for Ms Austin to be transported from prison to the Court for that purpose. At the hearing, Ms Austin applied orally for a further adjournment to a date after she was released from custody. The State of Victoria opposed Ms Austin’s application for an adjournment. Having heard oral submissions from both parties, I granted Ms Austin’s application for an adjournment and adjourned her application for recusal; the defendant’s application by summons, and the directions hearing to 16 May 2023 at 9.30am.
11On 27 April 2023, my associate received an email from Ms Austin (who by this stage had been released from custody), copied to the State of Victoria, stating (among other things):
“As a consequence of other actions taken by Trent Dwyer to obstruct and pervert the justice process, I have had to commence additional legal action against him. A directions hearing is listed for that matter on 10 May 2023.
Applications for CI-22-04028 are currently listed to be heard on, 16 May 2023.
I cannot attend court twice in one month. It costs me around $300 to attend each day, which is almost half the money the Government provides me in a tortuous way to survive. Video links are not an option (this is not a soap opera, there were key witnesses performing for cameras at the criminal trial demonstrating just how bad that was, judicial officers treat prisoners/ex-prisoners/accused people as if they are not a part of the proceedings, and the safety threats to those prisoners/ex-prisoners who risk having their image/video captured while being on display have not been addressed by any Victorian court).
As a result, given the directions hearing on 10 May 2023, relates to matters that will be added to the case for CI-22-04028, I am requesting that the 16 May 2023 listing be moved to 16 June 2023 (or around that date.)
… .”
12On 1 May 2023, my associate emailed the parties asking whether the State of Victoria objected to the hearing being adjourned to 19 June 2023 at 9.30am.
13On 3 May 2023, the State of Victoria responded that it objected to any further adjournment.
14On 3 May 2023, my associate sent an email to the parties stating:
“Her Honour has considered the emails from the parties and is not prepared to adjourn the hearing on 16 May 2023 on the basis of those emails alone.
However, Her Honour will consider any further application for an adjournment by Ms Austin which is supported by an affidavit providing detailed explanation as to why she is unable to attend the hearing on 16 May 2023 either in person or by zoom. Any such affidavit should be filed and served by no later than 8 May 2023 and address:
• Why Ms Austin says it will cost her $300 to attend the hearing;
•Why she is unable to afford to attend the hearing on 16 May 2023;
• How adjourning to June 2023 will assist;
• Why she is unable to attend the hearing by zoom; and
•Any other facts relied upon in support of the application for an adjournment.
The defendant should file and serve any affidavit in opposition by no later than 11 May 2023. The application for an adjournment will then be determined on the papers.
Unless the parties are notified that the hearing on 16 May 2023 has been vacated or adjourned, an appearance will be expected from all parties. Adverse orders may be made in the absence of a party who fails to appear, including orders giving judgment.”
[emphasis in original.]
15Although it was apparent from subsequent correspondence that Ms Austin received this email, she did not provide any affidavit in support of an application for an adjournment.
16Ms Austin did not appear at the hearing on 16 May 2023 and it proceeded in her absence. At the hearing, I dismissed Ms Austin’s application that I recuse myself and dismissed Ms Austin’s application for an adjournment. I reserved my decision on the State of Victoria’s application by summons.
17Having considered Ms Austin’s written submissions and the State of Victoria’s oral and written submissions, I have concluded that I should make the following Orders on the State of Victoria’s application by summons:
(1) Pursuant to r9.06(a) of the County Court Civil Procedure Rules 2018 (“the Rules”), the first defendant and second defendant cease to be parties to the proceeding.
(2) Pursuant to r23.02 of the Rules, the plaintiff’s statement of claim filed 2 May 2022 is struck out.
(3) By 4.00pm on 12 July 2023, the plaintiff must:
(a)file and serve, by email to [email protected] copied to the State of Victoria at [email protected], an Amended Writ naming the State of Victoria as the sole defendant; and
(b)file and serve, by email to [email protected] copied to the State of Victoria at [email protected], a draft Amended Statement of Claim.
(4) The proceeding is listed for a directions hearing on 24 July 2023 at 10.30am (or so soon thereafter as the business of the Court permits).
(5) If the plaintiff:
(a) fails to comply with any of the sub-paragraphs of Order (3) by 4.00pm on 12 July 2023; or
(b)fails to appear at the directions hearing listed for 24 July 2023 at 10.30am (or so soon thereafter as the business of the Court permits),
then the proceeding is immediately, and without the necessity for any further order, dismissed and the plaintiff must pay the defendants’ costs of the proceeding on a standard basis to be taxed in default of agreement.
(6) Costs reserved.
(7) Applications for extensions of time and other case management orders may be made by email to [email protected] copied to all parties.
18These are my reasons for this decision.
The three functions of pleadings
19Under r23.02 of the Rules, the Court may strike out a pleading where it:
(a) does not disclose a cause of action or defence;
(b) is scandalous frivolous or vexatious;
(c) may prejudice, embarrass or delay the fair trial of the proceeding; or
(d) is otherwise an abuse of the process of the Court.
20In determining an application to strike out a statement of claim, the Court must seek to further the overarching purpose of facilitating the just, efficient, timely and cost-effective resolution of the real issues in dispute.[3]
[3] Sections 7 and 8 of the Civil Procedure Act 2010 (“the CPA”)
21The power to strike out a pleading must be exercised with caution, particularly where any objections made are technical; or the boundaries of the law underlying the pleaded causes of action are developing.[4] Where a pleading has been drafted by a self-represented litigant, special care should be taken to ensure that the strike out power is not used as an instrument of exclusion from access to justice. A self-represented litigant, like any litigant, must be given “a reasonable opportunity to advance … [their] own case and to be informed of and respond to the opposing case”.[5] However, in the case of a self-represented litigant, this may require consideration of the capabilities of the self-represented litigant and particularly their capacity to “formulate … and communicate” the case which they wish to advance.[6]
[4] Hoh and Ors v Frosthollow Pty Ltd and Ors [2014] VSC 77 at paragraph [20]
[5] Roberts v Harkness (2018) 57 VR 334 at paragraph [53]
[6] Roberts v Harkness (ibid) at paragraphs [54]-[57]
22On the other hand, it must also be borne in mind that pleadings perform two important functions, which themselves work to facilitate access to justice and a fair trial:[7]
(a) first, they inform the other party of the case that they must meet at trial; and
(b) second, they inform the Judge hearing the trial of the issues which must be determined in the case.
[7]Wheelahan v City of Casey (No 12) [2013] VSC 316 at paragraph [25](b); Hoh and Ors v Frosthollow Pty Ltd and Ors (supra) at paragraphs [18]-[19]
23To these two functions, a third may be added: explaining the precise basis for a claim, so that if a proceeding lacks an essential condition to establish liability, it can be brought to an end expeditiously, without the expense and delay of a trial.[8]
[8] Hoh and Ors v Frosthollow Pty Ltd and Ors (supra) at paragraph [19]
24Permitting a party to rely upon a pleading which fails to effectively perform these functions will rarely, if ever, further the overarching purpose, unless some other mechanism for fulfilling these functions is adopted (for example a statement of issues under s50 of the CPA).
25There is one “cardinal rule”[9] which the drafter of a pleading must follow – a pleading “must state all the material facts to establish a reasonable cause of action (or defence)”.[10] The material facts are those facts (and only those facts) which are required to establish the essential elements of the cause or causes of action relied upon by the plaintiff. A pleading is quite a different document to a witness statement or narrative piece. That is not to say that good (even evocative) drafting is not desirable in a pleading – it is.[11] However, the drafter of a pleading must ensure that they plead all the material facts required to establish each claim made in the proceeding, whilst also avoiding pleading facts which are not material to a claim made in the proceeding. A pleading which does not contain the necessary material facts is defective, but so too is one which obscures the material facts among allegations of facts which are unnecessary to the establishment of an essential element of a pleaded cause of action. As explained by Vickery J:[12]
“The fact that a proceeding arises from a complex factual matrix … does not detract from these requirements [to clearly identify the issues through pleading material facts]. Indeed, they become more poignant. The challenge of sifting though the maize may be greater, but the pursuit of order, simplicity and elegance ‘on the far side of complexity’ assumes even greater importance if the structure of the case is to be effectively communicated to its intended audience.”
[9] Wheelahan v City of Casey (No 12) (supra) at paragraph [25](b)
[10] Wheelahan v City of Casey (No 12) (supra) at paragraph [25](c)
[11]See SMEC Australia Pty Ltd v McConnell Dowell Constructors (Aust) Pty Ltd [No 2] [2011] VSC 492 at paragraph [4] (per Vickery J)
[12] SMEC Australia Pty Ltd v McConnell Dowell Constructors (Aust) Pty Ltd [No 2] (ibid) at paragraph [8]
26Further, the fundamental requirement is to plead facts, not conclusions. Conclusory allegations may be pleaded[13] (particularly where useful to clarify the cause of action relied upon), but only if the specific primary facts which lead to that conclusion are pleaded.[14] For example, a pleading which simply asserts a breach of duty by the defendant causing loss, without more, would be unlikely to meet the requirements of a pleading, although allegations of each element of a cause of action were present.
[13] See for example r13.02(2)(b) of the Rules
[14] Wheelahan v City of Casey (No 12) (supra) at paragraph [25](g)-(h)
27For each material fact that is pleaded, “particulars” must be provided if they are necessary to enable the other party to plead; to define the questions for trial, or to avoid surprise at trial.[15] The particulars of a material fact should be provided immediately after the specific numbered paragraph in which that material fact is alleged, under a heading of “Particulars”. Particulars are not a substitute for the pleading of material facts. A pleading will be defective if the pleaded material facts (taken alone and without regard to the particulars) are insufficient to establish the essential elements of a cause of action. Rather, particulars flesh out the details of a material fact, to ensure that the other party knows the case made against them.
[15] Rule 13.10 of the Rules
28Allegations of “misrepresentation, fraud, breach of trust, wilful default or undue influence” or “disorder or disability of the mind, malice, fraudulent intention or other condition of the mind, including knowledge or notice which is alleged”[16] are considered by the Courts to be especially serious. Such allegations must be distinctly alleged and sufficiently particularised. Where an inference is relied upon to establish fraud, dishonesty or improper purpose, the primary facts that will be relied upon to justify the inference must be pleaded.[17] Those primary facts must not be consistent with innocence or an honest state of mind.[18]
[16] Rule 13.10(3) of the Rules
[17]Lock v Australian Securities and Investment Commission [2016] FCA 31 at paragraphs [8] and [124]; Leinenga & Anor v Logan City Council [2006] QSC 294 at paragraphs [64] and [69]; Three Rivers District Council v Governor and Company of the Bank of England (No 3) [2003] 2 AC 1 at paragraph [80]
[18]Sheahan v Brett-Young & Ors (No. 4) [2016] VSC 53 at paragraph [27], applying Lock v Australian Securities and Investment Commission (ibid)
29There are further detailed requirements for a pleading set out in O13 of the Rules, including:
(a) it must be divided into numbered paragraphs (r13.01(2));
(b) each allegation must, so far as practicable, be in a separate paragraph (r13.01(2));
(c) if a claim, defence or answer arises by or under an Act, it must cite the particular provision relied upon (r13.02(1)(b);
(d) it may plead a conclusion of law, but only if the material facts supporting the conclusion are pleaded (r13.02(2)(b));
(e) the effect of a document must be pleaded as briefly as possible (r13.03);
(f) the purport of a conversation must be pleaded as briefly as possible (r13.03); and
(g) the precise words should not be pleaded unless those words are relevant (r13.03).
30Affidavit evidence is not admissible on an application to strike out a pleading under r23.02 of the Rules.[19] The Court is not determining the question of whether a cause of action or defence exists per se, but rather, whether the pleading on its face adequately discloses and defines any cause of action or defence relied upon.
[19] Rule 23.04(2) of the Rules
The Statement of Claim as a whole
31Ms Austin’s current Statement of Claim:
(a) is wordy and discursive, consisting of 26 pages of dense text and 178 numbered paragraphs, with multiple allegations contained in each numbered paragraph;
(b) contains allegations of fact intermixed with conclusory allegations and submissions, often unsupported by any allegations of primary fact;
(c) for each alleged tort, includes a section of further numbered paragraphs entitled “Particulars” which do not clearly provide particulars of any previously pleaded material facts, but rather consists of a mix of further allegations of fact, submissions and conclusory allegations;
(d) makes many scandalous and conclusory allegations (including concerning judicial officers), unsupported by allegations of primary fact (see below under the heading “Particular paragraphs”); and
(e) makes numerous allegations which have no apparent relevance to the establishment of an essential element of the torts relied upon in this proceeding.
32It appears from Ms Austin’s correspondence with the Court, and oral submissions on 10 February 2023, that she is literate, educated and articulate. She appears capable of understanding the requirements of the Rules (even if not necessarily willing to comply with them). Although some leeway may be granted in view of her lack of legal qualifications, she does not appear to require significant assistance to understand the basic rules of pleadings or to draft a statement of claim which complies with those Rules.
33In written submissions dated 5 May 2023, Ms Austin submitted that:
“[23]The deficiencies claimed by the VGSO are immaterial to the Statement of Claim as a whole and the removal of the alleged irrelevancies would cause a degree of harassment and hardship on the Plaintiff that outweighs any benefit gained by fulfilling the VGSO's wishes. As in Salmon v Albarran [(No 2) [2021] NSWSC 186], to do so would ‘not dispose of the causes of action’ and would not ‘result in any substantial shortening of the proceedings’. The application of a little deductive reasoning, intelligence and commonsense would ameliorate the VGSO's claimed deficiencies of my Statement of Claim.”
34Having regard to my findings below in relation to specific causes of action and paragraphs of the Statement of Claim, I have concluded that the flaws in Ms Austin’s Statement of Claim extend beyond immaterial deficiencies. The Statement of Claim fails to perform the three functions of a pleading that I have identified above. It obscures rather than clarifies the issues in dispute; and is likely to significantly prolong the time and expense required to resolve the proceeding. Taken as a whole, it is scandalous, frivolous and vexatious and may prejudice, embarrass and delay the fair trial of the proceeding.
35It is not possible to separate and sever the offending parts of the Statement of Claim. It should be struck out in its entirety.[20]
[20] Wheelahan v City of Casey (No 12) (supra) at paragraph [25(p)]
False imprisonment (paragraphs 6-47 of the Statement of Claim)
36In paragraphs 6-47 of the Statement of Claim, Ms Austin makes a claim for false imprisonment for the period from her arrest on 7 December 2016 on the steps of the Melbourne Magistrates’ Court to her release on 22 November 2017.
37The tort of false imprisonment is a tort of strict liability – there is no requirement to establish fault on the part of the defendant.[21] It is actionable per se – it does not require proof of special damage.[22] Indeed, there is only one clearly essential element of a cause of action for false imprisonment – the fact of imprisonment by an act of the defendant (or, in the present case, by an act of a police officer for which the State of Victoria is liable). It has been said that absence of lawful authority is also an element of the cause of action,[23] however the weight of authority is to the effect that it is not necessary for the plaintiff to establish unlawfulness – rather, the onus of establishing lawfulness rests upon the defendant.[24]
[21]Ruddock v Taylor (2005) 222 CLR 612 at paragraph [140] (per Gleeson CJ, Gummow, Hayne and Heydon JJ)
[22]CPCF v Minister for Immigration and Border Protection [2015] HCA 1 at paragraph [155] (per French CJ)
[23]For example R v Deputy Governor of Parkhurst Prison; ex parte Hague [1992] 1 AC 58 at 162 (per Lord Bridge of Harwich)
[24]Trobridge v Hardy (1955) 94 CLR 147 at 152 (per Fullagar J); Ruddock v Taylor (supra) at paragraph [140] (per Gleeson CJ, Gummow, Hayne and Heydon JJ); This principle was described as “tolerably clear” in Balkin & Davis Law of Torts (6th ed, 2021) at 90.
38However, liability for a false imprisonment necessarily ceases once imprisonment becomes lawful, even if initially unlawful. Thus, liability for false imprisonment cannot extend to a period of imprisonment “caused by the interposition of an act of the Court”, even if liability were to arise for the period from arrest until remand.[25]
[25]Trotter v State of South Australia (unreported, Supreme Court of South Australia, judgment No. S3713, 27 November 1992); and on appeal Trotter v State of South Australia (unreported, Supreme Court of South Australia (Full Court), judgment No. S4702, 28 July 1994), applied in Groom v State of South Australia [2017] SASCFC 35 at paragraph [44]
39In the present case, Ms Austin pleads the occurrence of an intentional and total imprisonment against her will by Detective Dwyer and other police officers upon her arrest on the steps of the Melbourne Magistrates’ Court on 7 December 2016. This technically meets the requirement that she plead sufficient material facts to establish the essential elements of a cause of action in false imprisonment.
40However, the section of the Statement of Claim dealing with the tort of false imprisonment is over 40 paragraphs long. It contains detailed allegations which extend well beyond the material facts necessary to establish the essential elements of false imprisonment. The section also purports to make a claim for false imprisonment after Ms Austin was remanded in custody by the Magistrates’ Court.[26] Yet, as noted above, no action for false imprisonment can lie for the actions of Detective Dwyer and other police officers for the period after the interposition of an order of a court. The section also contains very serious conclusory allegations which are unsupported by specific factual allegations or particulars (see below under the heading “Particular paragraphs”).
[26] See paragraphs [10], [42], [46] and [47]
41As currently pleaded, the section fails to adequately perform the functions of a pleading. Further, it is not possible to clearly separate those paragraphs which do perform these functions from those which do not.
42I accept the State of Victoria’s submission that this section should be struck out in its entirety. However, I will permit Ms Austin to replead a claim for false imprisonment with respect to the period from her arrest on 7 December 2016 until an order was made remanding her in custody by the Magistrates’ Court.
Collateral abuse of process (paragraphs 48-78 of the Statement of Claim)
General principles
43The tort of collateral abuse of process has rarely been successfully used in Australia and its precise scope remains uncertain.[27] It is related to, but different from, an application for a stay on the grounds that a proceeding is an abuse of process. Whilst the development of the one has influenced the other (indeed, the leading Australian case on the tort of collateral abuse of process, Williams v Spautz,[28] is a case in which a stay was sought for abuse of process), they are distinct claims which have overlapping, but not necessarily co-extensive requirements.
[27]See Burton v Office of the Director of Public Prosecutions [2019] 100 NSWLR 734 at paragraphs [14]-[23] (Bell P) and cases referred to therein
[28] (1992) 174 CLR 509
44The majority in Williams v Spautz expressed a concern with keeping the concept of abuse of process within “reasonable bounds” so as not to “unduly expand the concept”.[29] This concern is particularly cogent where abuse of process is relied upon as a standalone private right of action, as distinct from an intra-proceeding application for a stay (where a Court is “called upon to protect its own process from abuse”).[30] As explained by Bell P in Burton v Office of the Director of Public Prosecutions:[31]
“Unless properly understood and delimited, the continued existence of the tort of collateral abuse of process could lead to the proliferation of litigation based on the ‘mere occurrence of the earlier litigation with an added assertion of improper motive or absence of legitimate purpose in bringing or defending the proceedings’: Butler v Simmonds Crowley & Galvin [2000] 2 Qd R 252 … In this context, Lord Sumption has referred to ‘a principled reluctance on the part of the courts to countenance civil liability for invoking the jurisdiction of the court’: Crawford Adjusters (Cayman) Ltd v Sagicor General Insurance (Cayman) Ltd [2014] AC 366; [2013] UKPC 17 at [157] … .”
[29] Williams v Spautz (ibid) at 526
[30] Williams v Spautz (ibid) at 528
[31] Supra at paragraph [16]
45On the other hand, on a strike out application, the Court must be particularly careful not to exclude an arguable claim where the law is developing and its precise boundaries are unclear.[32] Again, this is a concern which is particularly cogent to a claim for the tort of collateral abuse of process.
[32] Hoh and Ors v Frosthollow Pty Ltd and Ors (supra) at paragraph [20]
46Regardless of the uncertainties surrounding the precise boundaries of the tort, at the least, the tort requires the misuse of proceedings for an improper purpose. Thus, the majority of the High Court in Williams v Spautz[33] described the tort of collateral abuse of process as follows:
“Central to the tort of abuse of process is the requirement that the party who has instituted proceedings has done so for a purpose or to effect an object beyond that which the legal process offers … .”
[33] Supra at 523
47The improper purpose must be the predominant and immediate purpose. The holding of an “ultimate” purpose unrelated to the proceeding, but contingent upon the successful attainment of the relief sought in the proceeding, will not satisfy the requirements of an improper purpose, even if it can be described as malicious.[34] To illustrate this point, the majority in Williams v Spautz gave the following example:
“… an alderman prosecutes another alderman who is a political opponent for failure to disclose a relevant pecuniary interest when voting to approve a contract, intending to secure the opponent's conviction so that he or she will then be disqualified from office as an alderman by reason of that conviction, pursuant to local government legislation regulating the holding of such offices. The ultimate purpose of bringing about disqualification is not within the scope of the criminal process instituted by the prosecutor. But the immediate purpose of the prosecutor is within that scope. And the existence of the ultimate purpose cannot constitute an abuse of process when that purpose is to bring about a result for which the law provides in the event that the proceedings terminate in the prosecutor's favour.
It is otherwise when the purpose of bringing the proceedings is not to prosecute them to a conclusion but to use them as a means of obtaining some advantage for which they are not designed … .”
[emphasis added.]
[34] (1992) 174 CLR 509, 526-7
48As explained by Isaacs J in Varawa v Howard Smith Company Ltd:[35]
“In the sense requisite to sustain an action, the term ‘ abuse of process ’ connotes that the process is employed for some purpose other than the attainment of the claim in the action. If the proceedings are merely a stalking-horse to coerce the defendant in some way entirely outside the ambit of the legal claim upon which the Court is asked to adjudicate they are regarded as an abuse of process for this purpose … .”
[emphasis added.]
[35](1911) 13 CLR 35 at 91. The word “merely” in the second sentence should now be read as “predominately” – see Williams v Spautz (supra) at 529
49In other words, if the immediate purpose of a use of court process were to obtain the very relief that that process was designed to offer, no action for the tort of collateral abuse of process would lie, even if the person using the process had some “discreditable motive” for seeking that relief.[36]
[36]Burton v Office of the Director of Public Prosecutions (supra) at paragraphs [95]-[97]; see also Dowling v Colonial Mutual Life Assurance Society Limited (1915) 20 CLR 509
The misuse of process
50In her Statement of Claim, Ms Austin relies upon the following applications as amounting to a misuse of process:[37]
(a) an application to have the criminal charges against Ms Austin heard summarily in the Magistrates’ Court;
(b) an application on 29 June 2017 for the grant of “protected witness” orders under s355 of the Criminal Procedure Act 2009;
(c) an application on 10 December 2018 for “special witness” orders under s157AB of the Crimes Act 1914;
(d) an application on 14 June 2019 for a personal safety intervention order;
(e) an application on 1 February 2022 under s42E of the Evidence (Miscellaneous Provisions) Act 1958 to have key witnesses appear via audio visual link.
[37] See paragraphs 48-56 of the Statement of Claim
51With the exception of the application for a personal safety intervention order, these were all interlocutory steps taken in the course of an extant criminal proceeding. The State of Victoria submitted that the taking of an interlocutory step could not found an action for collateral abuse of process.
52The tort of collateral abuse of process is consistently described in the authorities as the initiation or bringing of proceedings for a collateral purpose.[38] Arguably, this language excludes the possibility of liability for the taking of an interlocutory step within an extant proceeding. Limiting the tort of collateral abuse of process in this manner may be justified on policy grounds, on the basis that any interlocutory abuse of process in a proceeding is more appropriately dealt with by the court managing that proceeding.
[38] For example Williams v Spautz (supra) at 523
53On the other hand, the State of Victoria did not take me to any cases in which the question of whether or not the tort of collateral abuse of process extended to use of interlocutory process was specifically raised as an issue and determined. As said by Harrison J in Spedding v Stateof New South Wales:[39]
“To establish this tort, proof is required of the police officers using the machinery of the criminal law to achieve a purpose outside the ambit of the criminal proceedings.”
[39] [2022] NSWSC 1627 at paragraph [217]
54For present purposes, it may be arguable that the tort is not limited to initiation of proceedings but extends to any misuse of “the machinery of the criminal law”. This view finds some support in Burton v Office of the Director of Public Prosecutions,[40] in which it was alleged that three of ten charges were laid for an improper purpose (rather than the initiation of the proceeding as a whole being for an improper purpose). The majority in that case were not prepared to summarily dispose of the proceeding. In view of the caution which must be exercised in a strike out application, I am not prepared to strike out the claim for collateral abuse of process on this basis.
[40]Supra
Improper purpose
55The State of Victoria submitted that Ms Austin did not identify an improper purpose and to the extent that any improper purpose was alleged, did not plead sufficient material facts to establish such a purpose.
56Ms Austin’s Statement of Claim does not contain any clear and distinct pleading of improper purpose. However, a careful reading of the 30 paragraphs in this section reveals two potential allegations of improper purpose:
(a) to humiliate, harass and intimidate Ms Austin (paragraphs 54, 59, 61 and 66); and
(b) to create a court record that indicated she was a seriously dangerous and abhorrent offender, thus negatively influencing the jury (paragraph 58).
57Any improper purpose relied upon must be distinctly alleged and carefully particularised. The pleading of an illegitimate collateral purpose was considered by John Dixon J in Sheehan v Brett-Young & Ors (No. 4),[41] albeit in the context of a claim for the tort of malicious prosecution. In relation to the illegitimate collateral purpose relied upon in that case (which John Dixon J noted was “buried in the particulars”), his Honour said:
“The plaintiff does not plead any primary facts on which he would rely, as is necessary, to invite the inference that … [the defendant’s] purpose was that illegitimate collateral purpose … All that the plaintiff has done is make a general allegation that might constitute an illegitimate purpose. That is insufficient to identify for the benefit of the defendant how the plaintiff alleges malice.”
[41] [2016] VSC 53 at paragraph [52]
58Justice Dixon’s reasoning is precisely apposite to the two potential allegations of improper purpose identified above. The mere making of a general allegation of improper purpose is not sufficient to meet the requirements of a pleading of improper purpose, it must be supported by the pleading of underlying primary facts which support an inference of the existence of the purpose. The assertion in the Statement of Claim of the existence of these two purposes is wholly unsupported by the pleading of primary facts from which it may be inferred that Detective Dwyer or other police officers held these purposes. Further, the primary facts that are pleaded (as opposed to the conclusory assertions) are consistent with Detective Dwyer and other police officers acting honestly and for proper purposes.
59This suffices to justify striking out this section of the Statement of Claim on the grounds that it does not plead sufficient facts to disclose a cause of action.
60I would add that, on the face of the Statement of Claim, there is no pleading of the use of court process for a predominant purpose which is extraneous to the attainment of the relief that the process was designed to offer. With the exception of the application to have the charges heard summarily in the Magistrates’ Court, each of the applications relied upon was for orders that were in fact granted. In relation to the application to have the charges heard in the Magistrates’ Court, Ms Austin pleads that “Detective Dwyer wanted to keep the matter in the Magistrates’ Court …”.[42] Further, paragraph 58 alleges that “[t]he intent of the applications for court orders was to create a court record …”. In other words, on the face of the Statement of Claim, the intent of the applications was to obtain the very relief contemplated by the process in question. This cannot sustain a claim for the tort of collateral abuse of process.
[42] Paragraph 57 of the Statement of Claim
61This section amounts to no more than a disparate collection of complaints about individual events which occurred during criminal proceedings against Ms Austin which she viewed as unfavourable to her interests. The section also contains many serious conclusory allegations which are unsupported by specific factual allegations or particulars (see below under the heading “Particular paragraphs”).
62I accept the State of Victoria’s submission that this section should be struck out.
Misfeasance in Public Office (paragraphs 79-172 of the Statement of Claim)
63As with collateral abuse of process, the precise limits of the tort of misfeasance in public office are not clearly defined. However, “it is relatively clear … that the tort is essentially concerned with the abuse by the holder of a public office of a public power or one which must be exercised for the ‘public good’, and which is attached to the office”.[43]
[43] Cannon v Tahche [2002] VSCA 84 at paragraph [28]
64The following elements are established requirements for a claim for misfeasance in public office:[44]
(a) an act of a public officer;
(b) which is invalid or not authorised by law; and
(c) which is done with malice, in the sense that there was an intent to cause harm or reckless indifference to harm which is likely to ensue.
[44]Northern Territory v Mengel (1995) 185 CLR 307; Ea v Diaconu (2020) 102 NSWLR 351; Cannon v Tahche (ibid); Mullet v Nixon [2016] VSC 512 at paragraph [15]
65The “preponderance of authority”[45] would see a fourth element added to the list, that the act of the public officer be done in the exercise or purported exercise of a public power or duty. However, in Ea v Diaconu,[46] the New South Wales Court of Appeal held that the law is not yet sufficiently clear on this question to justify the summary termination of a claim lacking this element. The Court of Appeal held that it may suffice to establish the tort that the act was done using a “de facto” power held by virtue of the holding of a public office; or in purported fulfilment of a function of that office.
[45] Ea v Diaconu (ibid) at paragraph [140] (per Simpson AJA)
[46] Ibid, cf Cannon v Tahche (supra)
66What is clear, however, is that it is not sufficient to show that a public officer has acted in a manner which they know is beyond power and which results in damage.[47] Actual malice in the sense of an intent to cause harm or reckless indifference to harm which is likely to ensue must be shown. Further, the underlying factual basis relied upon to establish this malice must be clearly pleaded. This was emphasised by John Dixon J in Sheehan v Brett-Young & Ors (No. 4).[48] In that matter, Justice Dixon was considering whether leave should be given to file a second substitute statement of claim which made claims of misfeasance in public office and malicious prosecution. The primary issue was whether the proposed statement of claim disclosed a cause of action. After noting that “[f]or present purposes, the critical allegation is that of malice,”[49] Justice Dixon cited the following passage from Gleeson J in Lock v Australian Securities and Investment Commission[50] with approval:
“Allegations that statutory powers have been exercised corruptly or with deliberate disregard to the scope of those powers are not lightly to be made or upheld: Federal Commissioner of Taxation v Futuris Corporation Ltd … . In Leinenga v Logan City Council …, at [64], Mullins J said:
‘... the tort of misfeasance in public office is not easily established. It depends on the impugned act being committed by the public officer with the requisite state of mind both in committing the act and in holding the requisite intention to cause the loss or damage that is alleged to flow from the impugned act. It is a very serious allegation to be made against a person who holds public office. It cannot be made in a broad brush way. It requires particularity in setting out the facts that can, if proven, establish the cause of action.’
See also Pharm-a-Care Laboratories Pty Ltd v Commonwealth (No 3) ….
[47] Northern Territory v Mengel (supra) at paragraph [60]
[48]Supra
[49] Sheehan v Brett-Young & Ors (No. 4) (supra) at paragraph [21]
[50] (Supra) at paragraphs [124]-[126]
As for fraud or dishonesty, the tort of misfeasance in public office must be distinctly alleged and sufficiently particularised, and it is not sufficiently particularised if the facts pleaded are consistent with innocence or honest incompetence: Three Rivers District Council v Governor and Company of the Bank of England (No 3) … (‘Three Rivers’); Danthanarayana v Commonwealth; Streeter v Western Areas Exploration Pty Ltd (No 2) …. It is not sufficient to allege unlawful conduct: it is necessary to plead the primary facts that will be relied upon to justify any inference of unlawfulness: Three Rivers at 292; NRMA Insurance v Flanagan … .”
(Citations omitted)
67Justice Dixon then applied this passage to the statement of claim before him:[51]
“The plaintiff’s allegations fell well short of what is required. In particular, what is absent from the pleading are material facts that, if proved at trial, would establish that the conduct of the LIV was not consistent with innocence or honest incompetence. …
The plaintiff’s contention … rose no higher than a general, or broad-brush, allegation and failed to identify precisely how it will be said that the [the defendant’s act] was deliberately calculated to injure the plaintiff or recklessly indifferent to that prospect. The pleading failed to identify the primary facts that could support the alleged state of mind.”
[51]Sheehan v Brett-Young & Ors (No. 4) (supra) at paragraphs [28]-[29]
68Again, Justice Dixon’s reasoning is apposite to the present case. Ms Austin makes seven separate claims for misfeasance in public office. All suffer from the same fatal defect – they do not plead specific primary facts from which actual malice (in the relevant sense) can be inferred. Numerous intemperate and broad-brush allegations of malice on the part of Detective Dwyer are made;[52] however, they amount to no more than conclusory assertions. Where specific primary facts are alleged, they are consistent with an innocent state of mind. The pleadings of misfeasance in public office do not disclose a cause of action and should be struck out.
[52]See paragraphs 80, 81, 87, 97, 111, 112, 113, 124, 125, 128-130, 146, 147, 149, 150, 152, 160, 161, 169, 171, 172. See further below under “Particular paragraphs”.
69The pleading of each of the seven claims is also vague and confusing. It leapfrogs the pleading of primary facts (such as the alleged unauthorised or unlawful act) to argumentative assertions of malice and harm. Although some detail is belatedly provided in each section under the heading “Particulars”, that detail falls well short of justifying or explaining the intemperate and broad-brush allegations made in the preceding paragraphs.
70I accept the State of Victoria’s submission that each of the seven sections alleging misfeasance in public office should be struck out.
Particular paragraphs
71The following table addresses the most scandalous, frivolous or vexatious[53] paragraphs in the Statement of Claim. It does not contain an exhaustive list of the paragraphs of the Statement of Claim which are objectionable. The fact that a particular allegation or paragraph is not explicitly addressed below should not be taken as an endorsement of that allegation or paragraph.
[53]For an explanation of the meaning of these terms, see Hoh and Ors v Frosthollow Pty Ltd and Ors (supra) at paragraph [12]
72The paragraphs below appear throughout the Statement of Claim and cannot be easily excised. They provide a further basis for the striking out of the Statement of Claim.
Paragraph
Finding
5
States that the tort of malicious prosecution is not included in this Statement of Claim because the appeal has not yet taken place. The claim should either be made or not made. If the tort is not yet complete, it cannot be made.
False imprisonment
10
Alleges the remand application is “infected with lies, misstatements of truth, unfairness and intimation from the beginning to the end”. No details of the alleged lies or misstatements are provided nor any primary facts to support these allegations.
Also alleges a failure to consider bail criteria (presumably by a Magistrate) which is both irrelevant to the claims made in this proceeding and unsupported by detail or primary facts.
13
Alleges that Detective Dwyer used Ms Austin’s imprisonment to “imply to judicial officers that I am a dangerous person and incontestably guilty of criminal acts”. No details of the alleged use are provided nor are any primary facts alleged to support the assertion of Detective Dwyer’s purpose. The relevance of these allegations to the claim for false imprisonment is not apparent.
41
Alleges “malicious persecution”, unsupported by details or allegations of primary fact. The relevance of this allegation to the claim for false imprisonment is not apparent.
46
Alleges that a decision was “unlawful and/or arbitrary” without any details or supportive primary facts. The allegation is not relevant to the claim for false imprisonment.
Collateral abuse of process
54
Alleges that the sole purpose of the arrest warrant
was to “humiliate, harass and intimidate me”. No primary facts are pleaded.75
Alleges that the prosecution worked “in collusion” with her lawyers and two magistrates. Not supported by any allegations of primary fact or particulars.
77
An allegation is made that a statement was “perjured”. Also appears to allege that a Judge was influenced by Detective Dwyer’s “backgrounding”. No details are provided of the alleged perjury or backgrounding and no primary facts are pleaded which would establish the perjury or backgrounding. The relevance to pleaded claims is not clear.
Misfeasance in Public Office – False data recorded in LEAP database
79-85
Very vague and confusing. An allegation is made in paragraph 79 that between 18 August 2017 and 18 September 2017 Detective Trent Dwyer recorded false data in the LEAP database, however, it is not stated what that false data was nor are primary facts alleged supporting the allegation that it was false. Possibly the false data is the sentence “Orders that a chronology be produced by the respondent (Victoria Police)” but this is insufficiently clear.
82
Alleges that an invalid PSIO is on Ms Austin’s record which “has been used, and will forever be used, as a justification to inflict abuse and harm of every, and any kind on me”. No details or primary facts of these allegations are provided.
Misfeasance in Public Office – Destruction of Evidence/Property
88
Alleges “destructive use” of Ms Austin’s laptop, but does not provide details of the nature of the alleged damage to the laptop nor how it amounts to an invalid or unauthorised act.
Misfeasance in Public Office – Obtaining and Distributing Documents
95-109
Very vague and confusing. The acts constituting the alleged obtaining and distributing of documents are not identified. Possibly it is the sending of the documents referred to in paragraph 109, but it is not clear why sending these documents is unlawful and unauthorised nor how their sending caused harm.
96
Alleges that Detective Dwyer “misrepresented himself” without providing any details or pleading primary facts or providing particulars.
102
Alleges “false allegations made about me” and a “viciously nasty and malicious prosecution”. No details or primary facts are provided.
104-107
Makes allegations concerning Judges and Court staff (including an allegation, unsupported by any particulars or primary facts, of private conversations between Detective Dwyer and a Judge, registrars and associates) which have no apparent relevance to the claims made in the proceeding.
Misfeasance in Public Office – Perjury
110
An allegation is made that Detective Dwyer committed perjury on numerous occasions, without any details of the alleged perjury, pleading of primary facts or provision of particulars.
111
Alleges Detective Dwyer spoke and wrote lies without any details of the alleged lie, pleading of primary facts or provision of particulars.
112
Alleges Detective Dwyer told lies to Courts without any details of the alleged lies, pleading of primary facts or provision of particulars.
113
States that alleged lies are not an exhaustive list. Any allegation of a lie must be distinctly alleged, supported by the pleading of primary facts and sufficiently particularised.
114
Alleges Detective Trent Dwyer “and his legal representatives” told lies to judicial officers without any details of the alleged lies, pleading of primary facts or provision of particulars.
118-122
Alleges Detective Dwyer told lies while giving evidence. Witness immunity applies.
Misfeasance in Public Office – Influence of Judicial Officers
124
Alleges Detective Dwyer used his position and contacts within the justice system to influence and change the outcome and progress of proceedings. No details are provided, no pleading of primary facts or provision of particulars.
127
Alleges “backgrounding” between Detective Dwyer, his lawyers and judicial officers, associates and other court employees. There are no details of this alleged backgrounding, nor pleading of primary facts nor provision of particulars.
128
Alleges Detective Dwyer, his lawyers, and the judicial officers “who supported them” made the justice process unjustifiably oppressive for her and brought the administration of justice into disrepute. No details are provided, no pleading of primary facts nor provision of particulars.
130
Alleges “malevolent and strategic backgrounding”. No details are provided, no pleading of primary facts nor provision of particulars.
131-144
No primary facts are pleaded in these paragraphs which would support the allegations made in paragraphs 124-130.
Misfeasance in Public Office – Application for replacement PSIO, 6 June 2019
149
Alleges use of “invalid orders” to “discredit me, to generate hatred and abuse towards me, and to justify the creation of additional orders negatively impacting on the defence of criminal charges”. It is not stated why the orders were invalid or who, when or how the alleged invalid orders were used in this way, there is no pleading of primary facts nor provision of particulars.
152
Alleges “lies and misinformation” by Detective Dwyer without details of the alleged lies and misinformation, pleading of primary facts or provision of particulars.
154
Alleges that Detective Dwyer’s PSIO application “contained false and misleading information” without details of the alleged false and misleading information, pleading of primary facts of provision of particulars.
155
Alleges Detective Dwyer made false and misleading statements in an application without details of the alleged false and misleading statements, pleading of primary facts of provision of particulars.
156
Describes a Court order as “pernicious and prejudicial”.
Misfeasance in Public Office – Inciting others to Mistreat and Harm me
164
Alleges that she was abused and harassed by a security manager, without pleading primary facts of abuse and harassment or provision of particulars.
170
Alleges that the conduct of a criminal trial was unfair and the verdict unsafe and unreasonable.
171
Alleges, without providing any details of the acts relied upon (other than the broadbrush in “committing the various torts set out above”), that Detective Dwyer acted in a “malicious, intentional, reckless, cruel, oppressive and contumelious manner, in disregard of my interests and legal and human rights, over a prolonged period of time”.
Application to remove first and second defendants as parties
73The State of Victoria relies upon s75(1) of the Police Act, which states that a police tort claim must be made against the State of Victoria and not against the police officer who allegedly committed the police tort.
74Sub-section 75(2) permits a police officer to be joined to the proceeding only if the State of Victoria pleads certain matters in its defence. The State of Victoria submits that the requirements of ss75(2) cannot have been met as it has not yet filed a defence. Accordingly, it submits, Detective Dwyer is not a necessary or proper party to the proceeding.
75In relation to Victoria Police, the State of Victoria further submits that it is not a body corporate capable of being sued and, even if it were, the proper party to a police tort claim under s74(1) of the Police Act is the State of Victoria.
76In written submissions dated 5 May 2023, Ms Austin states that she is “more than happy” for Victoria Police to be removed as a party (subject to not having to pay the costs of its removal); however, objects to Detective Dwyer being removed as a party.
77Ms Austin relies upon s74(2) of the Police Act. She submits that the State has not accepted liability for all of Detective Dwyer’s actions and inactions, regardless of their nature. She submits that the Victorian Government Solicitor’s Office is in a position of conflict of interest in representing all defendants. She submits that the nature of Detective Dwyer’s actions and inactions require that he be a party to this proceeding and that having him removed now and added later would not further the overarching purpose under the CPA.
78For the following reasons, I have concluded that neither Detective Dwyer nor Victoria Police are necessary or proper parties to the proceeding.
79Section 74 provides that:
“Liability of the State for police torts
(1) Subject to this section, the State is liable for a police tort.
(2)Subject to subsection (5), the State is not liable for a police tort if the State establishes on a police tort claim that the conduct giving rise to the police tort was serious and wilful misconduct by the police officer or protective services officer who committed the police tort.
(3)If a police officer or protective services officer commits a police tort for which the State is liable, the officer—
(a) is not liable to any person for the police tort; and
(b)is not liable to indemnify, or to pay any contribution to, the State in respect of the liability incurred by the State.
(4)Subject to subsection (5), the State is not liable for a tort committed by a police officer or protective services officer that is not a police tort.
(5)Subsections (2) and (4) do not apply to a claim brought in reliance on Part XIII of the Wrongs Act 1958.”[54]
[54]Part XIII of the Wrongs Act 1958 concerns organisational liability for child abuse and has no application in the current proceeding
80The term “police tort” is broadly defined in ss72(1) as “a tort committed by a police officer … in the performance or purported performance of the officer’s duties [Emphasis added].”
81Section 75 provides that:
“How can police torts be made?
(1)Except as otherwise provided by this Division, if a person wishes to make a police tort claim, the person must make it against the State and not against the police officer or protective services officer who allegedly committed the police tort.
(2)A person who makes a police tort claim (other than a counterclaim) against the State may seek to have the police officer or protective services officer who allegedly committed the police tort joined to the proceeding only if the State pleads in its defence to the claim that—
(a)the State would not be liable for the alleged tort, if proven, because of section 74(2); or
(b) the alleged tort, if proven, would not be a police tort.
(3)If the court permits the person to have the police officer or protective services officer joined—
(a)the person is not required to file a new originating process, but may instead amend the existing originating process; and
(b) the court may make any orders it considers appropriate to enable the existing originating process to be amended.
(4) Nothing in the Limitation of Actions Act 1958 prevents the making of a claim in the amended originating process against the police officer or protective services officer in respect of the alleged tort if the amendment to the originating process is made within 2 months after the State's defence is served on the person making the claim.”
82Section 73(1) defines a “police tort claim” as “a claim for damages or other relief in respect of an alleged police tort”.
83The claims against Detective Dwyer and Victoria Police are police tort claims. In her Statement of Claim, Ms Austin claims damages for tort arising from acts alleged to be committed by Detective Dwyer (and others). It is apparent from the very nature of the torts relied upon by Ms Austin (false imprisonment, collateral abuse of process and misfeasance in public office) that the acts alleged to be committed by Detective Dwyer were done in the performance or purported performance of his duties as a police officer.
84Accordingly:
(a) Sub-Section 75(1) prohibits Ms Austin from making the claim against Detective Dwyer;
(b) Sub-Section 75(2) states that Detective Dwyer may only be joined if the State of Victoria pleads certain matters in its defence (one of which is that the State is not liable by reason of ss74(2)). As the State of Victoria has not yet filed a defence, the requirements of ss74(2) cannot have been met and Detective Dwyer cannot be joined to the proceeding;
(c) unless the State of Victoria establishes the matters in ss74(2), namely that the conduct giving rise to the police tort was serious and wilful misconduct by Detective Dwyer or another police officer:
(ii)the State of Victoria will be liable under ss74(1) for any police tort to have been committed by Detective Dwyer; and
(ii)Detective Dwyer will not be liable for any such police tort (ss74(3)); and
(d) the words “if the State establishes” in ss74(2) cannot be ignored or treated as superfluous. Section 74 works hand-in-glove with ss75(2). It does not suffice for a plaintiff to establish that a police officer has committed serious and wilful misconduct. Sub-section 74(2) and ss74(3) will only apply to a tort committed by Detective Dwyer if the State of Victoria pleads and proves that the conduct giving rise to the tort was serious and wilful misconduct by Detective Dwyer.
85In relation to Victoria Police, even if it were a body corporate capable of being sued, its joinder adds nothing so long as the State of Victoria is made liable for police torts by the Police Act.
86I am satisfied that neither Detective Dwyer not Victoria Police are necessary or proper proceedings and will order that they be removed as parties.
Self-executing orders
87In oral submissions, the State of Victoria contended that I ought to strike out not just the Statement of Claim, but the entire proceeding, and require Ms Austin to make application to reinstate the proceeding on proper material. I am not satisfied that it is appropriate that I do so on a summons to strike out Ms Austin’s Statement of Claim.
88However, Ms Austin has demonstrated a concerning disregard for Court process and an unwillingness to accept the authority of the Court. The Court has endeavoured to accommodate her preferences for an in person hearing and grant reasonable adjournments. But it is not for her to demand a particular mode or date of Court hearing and refuse to participate further if her demand is not met.
89In seeking to further the overarching purpose under the CPA, the Court must balance not only Ms Austin’s interests and the interests of the defendants, but also the resources of the Court and the interests of other parties who might have otherwise been allocated a judge or a courtroom. The right to a hearing in civil proceedings is subject to compliance with the rules of civil procedure (and the Orders of the Court). Through the provisions of the CPA, Parliament has made it “emphatically clear” that the Court may impose strict discipline on its proceedings in order to further the overarching purpose.[55] In the circumstances, it is reasonable to make ongoing access to the Court’s processes by Ms Austin conditional upon a demonstrated willingness to comply with Court Orders and appear at listed hearings.
[55] National Builders Group IP Holdings Pty Ltd v ACN 092 675 164 Pty Ltd (In Liq) & Anor [2015] VSCA 260 at [40]-[43]
90Accordingly, I have made the Orders for provision of a draft Statement of Claim and appearance at the next directions hearing self-executing. If Ms Austin fails to comply with those Orders by or on the date specified in the Orders, the proceeding will be dismissed with costs.
91For the avoidance of doubt, unless stayed, my Orders will remain self-executing even if an appeal against those Orders is lodged with the Court of Appeal.
- - -
Certificate
I certify that these 32 pages are a true copy of the judgment of Her Honour Judge Tran delivered on 5 June 2023.
Dated: 5 June 2023
Beini Wu
Associate to Her Honour Judge Tran
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