Bayliss v Cassidy

[1993] QCA 491

IN THE COURT OF APPEAL	[1993] QCA 491
QUEENSLAND

Appeal No. 96 of 1993

Brisbane
[Bayliss v. Cassidy & Ors.]

BETWEEN:

PETER JOHN BAYLISS

(Plaintiff) Respondent

- and -

ROBERT JOHN CASSIDY

(First Defendant)

- and -

NEVILLE JOHN HARPER

(Second Defendant)

- and -

DESMOND GORDON STURGESS

(Third Defendant)

- and -

THE STATE OF QUEENSLAND

(Fourth Defendant) Appellant

JUDGMENT OF THE COURT
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The Chief Justice
Mr Justice Davies
Mr Justice Cullinane
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Judgment delivered 06/12/93

JUDGMENT OF THE COURT
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APPEAL DISMISSED. THE COSTS OF THE APPEAL AND THOSE
INCURRED IN AMENDING THE STATEMENT OF CLAIM ARE TO BE COSTS
IN THE CAUSE.
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CATCHWORDS:	PROCEDURE - Appeal against order to answer interrogatories - wh statement of claim adequately pleaded claim against appellant (4th defendant) - whether interrogatories oppressive - wh appellant liable
Counsel:	Mr P.A. Keane Q.C. with him Ms. R. Atkinson for the appellant (fourth defendant)
Mr G. Brandis for the respondent
Solicitors:	Crown Law Office for the appellant (fourth defendant) Bayliss Rodgers for the respondent
Hearing dates:	21, 22 and 23 September, 1993

IN THE COURT OF APPEAL

QUEENSLAND

Appeal No. 96 of 1993

Brisbane

Before Chief Justice
Mr Justice Davies
Mr Justice Cullinane

[State of Queensland v. Bayliss]

BETWEEN:

PETER JOHN BAYLISS

(Plaintiff) Respondent

- and -

ROBERT JOHN CASSIDY

(First Defendant)

- and -

NEVILLE JOHN HARPER

(Second Defendant)

- and -

DESMOND GORDON STURGESS

(Third Defendant)

- and -

THE STATE OF QUEENSLAND

(Fourth Defendant) Appellant

JUDGMENT OF THE COURT

Judgment delivered 06/12/93

This appeal is brought against an order made by a judge in chambers to answer interrogatories.

The plaintiff, who at material times has been a duly qualified and registered medical practitioner, sues because of his arrest in 1985 by the first defendant and his subsequent prosecution initially by the first defendant in the Magistrates' Court and subsequently by the third defendant who, as Director of Prosecutions, took over the conduct of proceedings against the plaintiff. In the course of those proceedings, the plaintiff had been arrested and taken into custody and his patient records, instruments and equipment were seized.

The plaintiff's action claims damages for false imprisonment, malicious process, malicious prosecution and trespass to goods. The claim against the first defendant arises because, as a Detective Sergeant in the Queensland Police Force, he took certain actions in the performance or purported performance of his duties as a member of the Force. As against the fourth defendant, reliance is placed by the plaintiff upon ss. 8 and 9 of the Crown Proceedings Act 1980 and s. 69B of the Police Act 1937.

The claim against the second and third defendants is made on the basis that they were respectively the Minister for Justice and Attorney-General for the State of Queensland and the Director of Prosecutions. It is said that they acted in their respective capacities in the matters referred to in the statement of claim.

The claim is that the first defendant, in the matters alleged, acted either on his own motion or on the instructions and on behalf of the second defendant or the third defendant or upon their joint instructions. By an amendment allowed to be made to the statement of claim during the hearing of the present appeal, the allegation is specifically made that the conduct and state of mind of each of the second and third defendants were the conduct and state of mind of the fourth defendant and, as well, it is alleged that the fourth defendant is vicariously liable for the conduct of the second and third defendants.

The charge on which the plaintiff was arrested in 1985 was one that between April, 1983 and May, 1985, he conspired with persons unknown unlawfully to use force with intent to procure the miscarriage of women. The plaintiff contends that the respective actions of the first three defendants were done maliciously and without reasonable and probable cause.

A large number of interrogatories were delivered for answer by the fourth defendant and the learned chamber judge, having considered a number of grounds of objection, ordered that very many of them should be answered by that defendant. This Court does not lightly interfere with an exercise of discretion by a chamber judge when interlocutory orders are made in matters involving practice and procedure:

Kirkup v. British Rail Engineering

see, for example, (1983) statement of Sir Frederick Jordan in Re Gilbert (deceased) (1946) 46 S.R.(N.S.W.) 318 at 323. The argument for the appellant on the hearing acknowledged this difficulty but contended nevertheless that a matter of a fundamental kind in this case justified the bringing of the appeal. It was claimed that a large number of the interrogatories were irrelevant for the reason that the statement of claim raised a liability issue against the fourth defendant only by reason of that defendant's alleged responsibility for the actions of the first defendant and raised no further claim against the fourth defendant because of the actions, knowledge and state of mind of the second and third defendants. The interrogatories in this case were delivered for answer only by the fourth defendant. To the extent that the pleading raised issues against the second and third defendants, the appellant's argument was that it attributed no liability to the appellant, the fourth defendant, on that account. Since the interrogatories dealt to a considerable extent with the actions of the second and third defendants as well as of a number of State public servants in a way which investigated their knowledge and involvement, the questions would have no relevance if it was true that the statement of claim, properly construed, alleged no liability on the part of the fourth defendant other than through the actions of the first defendant where the Crown Proceedings Act and the Police Act were relied upon. This general objection to answering was canvassed before the learned chamber judge who, however, decided the question favourably to the plaintiff, saying that it was clear that the pleading alleged that the fourth defendant was liable also because the second and third defendants had acted in the way alleged against them.

1 W.L.R. 1165 at 1171 and Adam P. Brown Male Fashions v.

After argument on the appeal had proceeded at some length, this Court indicated that in debate about the relevance of interrogatories it was unsatisfactory that there should be continuing dispute about what the statement of claim actually contended for. Counsel for the respondent plaintiff, without conceding that the statement of claim was insufficient to convey what was intended to be alleged, offered to amend and provide additional clarification if the Court considered that should occur. Without finally deciding whether the primary judge was right in thinking that what was expressed and implied by the pleading as it then stood was sufficient to raise the intended case, the Court indicated to counsel for the plaintiff that further clarity was desirable and then allowed the amendments which were sought. For present purposes the most significant of the amendments were those which now appear in paragraphs 1A and 1B alleging that the conduct and state of mind of the second and third defendants respectively were the conduct and state of mind of the fourth defendant or alternatively that the fourth defendant was vicariously liable for the conduct of the second and third defendants. The amendments sought were allowed on a condition which the respondent plaintiff accepted that he would promptly provide particulars of the facts and circumstances on which reliance was placed for the allegations in paragraphs 1A and 1B.

It is true that the appellant may wish to make some objection to the allegations which now appear in the pleadings and to those originally appearing insofar as it is claimed that the fourth defendant is involved in liability by reasons of the actions of the second and third defendants but any such issue will have to be debated at an appropriate time. In the judgment of Aickin J. in R v. Toohey; Ex parte Northern Land Council (1981) 151 C.L.R. 170 at 265 it is contemplated that the Crown can be liable for the acts of a Minister of the Crown. Whatever may be the fate subsequently of any such objection to the pleading, the fact is that the substantial challenge raised on the appeal to the chamber judge's order to answer the interrogatories has now been met. The subsidiary objections to the interrogatories advanced below, including the objection that the detail and extent of the questions placed an oppressive burden upon the fourth defendant, amongst other things because of the requirement that would arise for that defendant to make enquiries of persons who were no longer Crown servants, were carefully considered by the primary judge. No sufficient reason has been shown to interfere with her conclusions. The requirement is after all only to make "reasonable" enquiry of former servants: Stanfield Properties v. National Westminster Bank (1983) 1 W.L.R. 568 at 570. One particular objection was expressly mentioned when the Court indicated that it was disposed to allow the clarifying amendment which was sought. This was that putting to one side the position of the second and third defendants, the actions and knowledge of numerous Crown servants to whom questions related were not shown to be relevant. However, the pleading alleges, amongst other things, that the fourth defendant, the State of Queensland, is liable by reason of the actions of the second defendant in his capacity as Minister for Justice and Attorney- General. It should not be concluded that the actions of other public servants of the State acting in the area in respect of which the plaintiff's complaints lie will constitute activity which has no relevance. Somewhat similar, although more restricted, observations will apply in respect of the part allegedly played by the third defendant. The decision of the primary judge to allow interrogatories in this area should not be interfered with.

The costs of the appeal should now be considered. No direct challenge was made to the statement of claim on the basis of any lack of clarity nor was any assertion made that it was embarrassing to plead to before the objection to answering interrogatories was raised. Prior to this time, a full discovery of documents had been made by the defendants.

It was only when the interrogatories were delivered that objection to relevance was made, the contention being that the allegations in the pleadings were limited in the way which has already been mentioned, but the primary judge, for her part, was not persuaded of the soundness of this contention. Up to this point, there is still no direct challenge which has been made to the pleading as such, that is on the basis of its alleged inadequacy or lack of clarity. Now that amendments have been made to the statement of claim contributing to any necessary further extent to its clarity, the consequence is that the substantial point of the appeal against the order to answer has been disposed of. Orders permitting amendment of the statement of claim and dismissing the appeal should be made on the basis that the costs associated with them are costs in the cause.