Bayliss v Cassidy, Harper, Sturgess & State of Qld
[1996] QSC 199
•24 October 1996
IN THE SUPREME COURT
OF QUEENSLAND No. 4786 of 1988
Brisbane
[Bayliss v Cassidy, Harper, Sturgess & State of Qld]
BETWEEN:
PETER JOHN BAYLISS
Plaintiff
AND:
ROBERT BERNARD CASSIDY
First Defendant
AND:
NEVILLE JOHN HARPER
Second Defendant
AND:
DESMOND GORDON STURGESS
Third Defendant
AND:
STATE OF QUEENSLAND
Fourth Defendant
REASONS FOR JUDGMENT - MOYNIHAN J.
Judgment delivered 24 October 1996
CATCHWORDS: O. 32 r. 1, Application for leave to amend statement of claim - relevant considerations including whether limitation period expired, prejudicial and delay
Counsel:R. Hanson Q.C. and G. Brandis for the plaintiff
R. Atkinson for the defendants
Solicitors:Gadens Ridgeway for the plaintiff
Crown Solicitor for the defendants
Hearing Date: 10 September 1996
IN THE SUPREME COURT
OF QUEENSLAND No. 4786 of 1988
Brisbane
BETWEEN:
PETER JOHN BAYLISS
Plaintiff
AND:
ROBERT BERNARD CASSIDY
First Defendant
AND:
NEVILLE JOHN HARPER
Second Defendant
AND:
DESMOND GORDON STURGESS
Third Defendant
AND:
STATE OF QUEENSLAND
Fourth Defendant
REASONS FOR JUDGMENT - MOYNIHAN J.
Judgment delivered 24 October 1996
There are applications by the plaintiff in action 4786/1988 (the writ was issued on 22 December 1988) for leave to deliver a further amended statement of claim ("the proposed pleading") and the defendants in action 7060/1996 to have that writ struck out. As will emerge the applications are interrelated.
Both of the actions arise out of the arrest of the plaintiff in each action (Bayliss) on 20 May 1985 on a charge of conspiring to unlawfully use force with intent to procure the miscarriage of women. At the same time, search warrants, subsequently held to be invalid by the Full Court, were executed and records and medical equipment were seized.
The defendant in the 1988 action is the police officer in charge of the operation (Cassidy), who obtained the warrants and made the arrest. The other defendants are the Attorney-General (Harper), and Director of Public Prosecutions (Sturgess) of the day. The State of Queensland is the remaining defendant. Harper and the State of Queensland are the defendants in the 1996 action.
The causes of action presently pleaded in action 4786/1986 are false imprisonment, malicious process, malicious prosecution, and trespass to goods. The statement of claim in that action as it presently stands ("the current pleading") was amended as a consequence of leave given by the Court of Appeal on 24 September 1993 in disposing of an application by Bayliss for further answers to interrogatories. The causes of action endorsed on the 1996 writ are misfeasance in public office and collateral abuse of process; no statement of claim has been delivered in that action. The amendments in the proposed pleading in the 1988 action are designed to raise and found those causes of action against Harper and the State of Queensland - the defendants in the 1996 action.
The tort of collateral abuse of process was canvassed by the High Court in Williams v. Spautz (1991-92) 174 C.L.R. 509. Although the proposed statement of claim has been criticised as a pleading, it may be accepted, at least for the moment, that it pleads the elements identified by the High Court as constituting the tort. The tort of misfeasance in public office was considered by the House of Lords in Racz v. Home Office [1994] 2 A.C. 45, see also Bourgoin S.A. & Ors v. Ministry of Agriculture, Fisheries and Food (1986) 1 Q.B. 716. It may again be accepted for the moment that the proposed statement of claim pleads the elements of that tort.
Broadly speaking and relevantly for present purposes, the case raised by the proposed pleading (indeed it is that raised to found the causes of action dealt with by the current pleading) is to the effect that Harper's conduct and state of mind was the conduct and state of mind of the State or alternatively that the State is vicariously liable for the misconduct pleaded against Harper.
The application to amend the statement of claim relies on O.32 rr.1(1) and 1(5) of the Rules of the Supreme Court. The plaintiff did not persist in reliance on s.38(1)(b) of the Limitations of Action Act 1974 ("the Act").
It seems material to determine the limitation period applicable to the proposed causes of action. A cause of action is simply a factual situation, the existence of which enables a person to obtain from the court a remedy against another person: Leetang v. Cooper (1965) 1 Q.B. 232 at 342, Do Como v. Ford Excavations Pty Ltd (1984) 154 C.L.R. 234 at 245. It was accepted before me that the cause of action in respect of the proposed causes of action had arisen prior to the events of 20 May 1985 which gave rise to the causes of action presently the subject of the 1988 action. That would seem to be so; the plaintiff's case founding the proposed causes of action may be summarised as that his arrest and prosecution were directed in bad faith at Ministerial level. This, it is contended, was first revealed as a consequence of the discovery of notes or minutes concerning cabinet meetings ("the cabinet minutes") prior to May 1985 by an affidavit of further discovery filed by the State of Queensland on 28 August 1990. The accrual of a cause of action however does not appear to depend on the plaintiff's knowledge: Do Como v. Ford Excavations Pty Ltd (ante) at 241, Cartledge v. E. Jopling & Sons Ltd (1960) A.C. 758 and Hawkins v. Clayton (1988) 164 C.L.R. 539 particularly at 561.
The torts of misfeasance in public office and of collateral abuse of process found actions for breach of duty; as to the former see Northern Territory v. Mengel (1995) 129 A.L.R. 1 at 37; and as to the latter see Williams v. Spautz (ante) at 522.
In both the current and the proposed pleading there is a claim for "significant and considerable pain and mental anguish" and "anxiety". Section 5 of the Act defines "personal injury" to include "an impairment of a person's . . mental condition". Personal injury has been construed to include mental disturbance Wright v. Borzi [1979] Qd.R. 179 at 187.
Section 10(1)(a) of the Act provides for a limitation period of six years from the date on which the cause of action arose in respect of an action founded on tort where the damages claimed "do not consist of or include damages in respect of personal injury to any person." Section 11 of the Act relevantly provides that in the case of an action for breach of duty (whether by virtue of contract or statutory provision or independently of a contract or statute) in which the damages claimed include damages in respect of personal injuries the limitation period is three years. It would therefore seem that the limitations period applicable to the proposed causes of action is three years and that it had expired prior to 20 May 1988.
I turn to the provisions of O.32 relied on for the application to amend. Order 32 r.1 relatively provides:
"1.(1) The Court or a Judge may, in any cause or matter, at any stage of the proceedings, allow or direct either party to alter or amend the writ of summons, or any endorsement thereon, or any pleadings or other proceedings, in such manner and on such terms as may be just.
(2) Where an application to the Court or a Judge for leave to make the amendment mentioned in subrule (3), (4) or (5) is made after any relevant period of limitation current at the date of the issue of the writ has expired, the Court or a Judge may nevertheless grant such leave in the circumstances mentioned in that subrule if the Court or Judge thinks it just to do so.
. . . . .
(5) An amendment may be allowed under subrule (2) notwithstanding that the effect of the amendment will be to add or substitute a new cause of action if the new cause of action arises out of the same facts or substantially the same facts as a cause of action in respect of which relief has already been claimed in the action by the party applying for leave to make the amendment.
. . . . ."
The proposed pleading alleges to the effect that the first defendant (Cassidy) acted on the instructions of the second defendant (Harper) concerning the events of 20 May 1985. It then alleges that those instructions were given:
"(i)for the purpose (or alternatively, for the predominant purpose) of causing harm to the reputation of the Plaintiff;
(ii)for the purpose (or alternatively, for the predominant purpose) of securing a political advantage for the political party then constituting the Government of Queensland;
(iii)without a belief that any offence had been committed by the Plaintiff against the law of Queensland, or that there was any or any sufficient evidence to establish that such an offence had been committed"
It seems to me that the causes of action raised by the proposed pleading arise out of substantially the same facts as those founding the causes of action in the current pleading. These facts essentially are the conduct of the defendants' (notably Harper and the State of Queensland) leading up to the events of 20 May 1985, those events, and the subsequent detention and charging of the plaintiff.
It is true of the proposed pleading that:
subparagraphs 1AA(i), (ii) and (iii) and 1AB(i), (ii) and (iii) introduce allegations of purpose;
paragraph 1AC pleads a decision by "the Government of Queensland" as distinct from the "State of Queensland" although there have not been any similar allegations previously made;
paragraph 1AF pleads an intention not previously alleged.
For this, if not other reasons, the new causes of action do not arise out of the same as distinct as substantially the same facts as the causes of action presently pleaded.
The fact that the pleading of the new causes of action raises separate issues for determination does not mean that the issues do not arise substantially out of the same facts; Adam v. Shiavon (1985) 1 Qd.R. 1 at 8. The role of Harper and the State of Queensland in the events of 20 May 1985, including in the decisions leading up to or founding them, will have to be examined if the action proceeds to trial on the current pleading ie. substantially the same facts fall to be investigated in relation to causes of action presently pleaded and those it is proposed to plead; cf. Brickfield Properties Ltd v. Newton (1971) 1 W.L.R. 862 at 873 per Sachs L.J. at 80 per Cross L.J. where it is said:
"It is no objection to an amendment under Order 20 Rule 5(5) that some of the fact out of which the new cause of action arises are peculiar to it and that some of the facts out of which the old cause of actions arises are superior to it. It is enough if the overlap is so great that the new cause of action can fairly be said to arise out of substantially the same fact as the old cause of action."
See also McGhee v. Yeomans (1977) 1 N.S.W.L.R. 273 at 284.
In any event there is, as I understand it, authority binding on me to the effect that there is a general unfettered discretion to amend given by O.32 r.1 if I think it is just to do so. Adams v. Shiavon (supra), Archie v. Archie; Smyth Third Party (1980) Qd.R. 456 and see Neilson v. Bundaberg Sugar Company Limited (1985) 1 Qd.R. 313.
It is relevant to, but not determinative of, the exercise of that discretion that the limitation period has expired. The statutory provision of limitation periods is driven by the perception that delay may diminish or defeat justice and may cause prejudice which is not identified; Brisbane South Regional Health Authority v. Taylor (High Court unreported judgment, 2 October 1996, 96/028). Other relevant considerations include any prejudice to the parties by allowing or refusing to allow the amendment and the explanation for and the effect of delay.
It seems right to say that the plaintiff became aware of the prospect of pursuing the causes of action it now seeks to plead as a consequence of a further affidavit of documents by the fourth defendant filed on 28 August 1990. As I mentioned earlier, this disclosed cabinet minutes of events prior to May 1985. I should mention that some of this material is handwritten and apparently not easily decipherable. Paradoxically, the plaintiff may not have been entitled to that discovery had the law then been as decided in Commonwealth v. Northern Land Council (1993) 176 C.L.R. 606 but that seems to me to be little to the point. The minutes having been discovered, the plaintiff was entitled to deliver interrogatories about them, arguably it was prudent it do so before deciding to pursue the causes of action raised by the proposed pleading.
The State of Queensland filed answers to interrogatories on 20 August 1991 and 7 March 1994 and the second defendant on 16 May 1994. Originally the plaintiff's interrogatories, including in relation to cabinet minutes met with a refusal to answer. In a contested chamber application the plaintiff substantially succeeded in obtaining orders that the interrogatories be answered, a decision which was upheld by the Court of Appeal in the decision of 24 September 1993 leading to the amendment of the statement of claim to which I have previously referred.
These proceedings are remarkable for the disputes and interlocutory applications particularly in respect of discovery (including interrogatories). The history of interlocutory disputes particularly in relation to discovery, inspection and interrogatories is summarised in the affidavit of Gregory Wayne Rodgers (the plaintiff's solicitor) filed on 6 September 1996 as follows:
"(a)order for discovery 1 November 1989;
(b)first affidavit of documents by first defendant sworn 22 November 1989;
(c)first affidavit by second defendant sworn 22 November 1989;
(d)first affidavit of third defendant sworn 22 November 1989;
(e)first affidavit of fourth defendants sworn 22 November 1989;
(f)affidavit of Police Commissioner Newnham sworn 22 November 1989;
(g)summons for further discovery filed 10 April 1990;
(h)second affidavit by first defendant sworn 19 April 1990;
(i)abovementioned summons dismissed on 23 April 1990;
(j)third affidavit by first defendant sworn 26 April 1990;
(k)second affidavit by fourth defendant sworn 2 April 1990;
(l)order for further discovery made on 16 May 1990;
(m)third affidavit by fourth defendant sworn 5 June 1990;
(n)second affidavit by first defendant sworn 7 August 1990;
(o)fourth affidavit by first defendant sworn 28 August 1990;
(p)fourth affidavit by fourth defendant sworn 28 August 1990;
(q)second affidavit by third defendant sworn 7 September 1990;
(r)interrogatories delivered to fourth defendant 4 July 1991;
(s)fifth affidavit of documents sworn by fourth defendant on 22 July 1991;
(t)fourth defendant's answers to interrogatories sworn 20 August 1991;
(u)sixth affidavit of documents of fourth defendant sworn 6 November 1991;
(v)third affidavit by second defendant sworn 11 November 1991;
(w)summons for further and better answers to interrogatories filed 24 February 1992;
(x)summons for further and better answers to interrogatories heard on 27 February 1992 and 5 March 1992;
(y)judgment on summons given on 21 May 1993;
(z)notice of appeal lodged on 28 May 1993;
(aa)appeal heard on 21, 22 and 23 September 1993;
(bb)judgment of court of appeal given on 6 December 1993;
(cc)further answers of fourth defendant sworn 7 March 1994;
(dd)interrogatories delivered to second defendant on 29 April 1994;
(ee)second defendant's answers to interrogatories sworn 16 May 1994."
In his affidavit Mr Rodgers deposes:
"Following completion of discovery and interrogatories, counsel was briefed to review the discovered material and answers to interrogatories. Consequent upon counsel's advice received earlier this year, a summons was filed on 28 May 1996, listed for hearing on 30 May 1996, seeking leave to amend the plaintiff's amended statement of claim. On 30 May 1996, as the defendants' application for further and better answers to interrogatories from the plaintiff was also listed and estimated to take a considerable period of time, the matter was adjourned to the call over list on the following day. On 31 May 1996, the matter was called over and listed for hearing on 30 and 31 July 1996. The proposed amended statement of claim which is exhibited to my affidavit filed herein on 27 August 1996 was provided by the plaintiff's counsel to the defendant's counsel on 19 July 1996."
In fact, at the date of my hearing of this application the defendant's application for further and better answers to interrogatories had not been heard but this was through no fault of the parties. It seems to me a fair enough overall summary of the interlocutory disputes that they have largely involved the plaintiff successfully pursuing further discovery and answers to interrogatories from the various defendants.
The defendants are and have been represented by the one solicitor and have briefed the same counsel. The submission made on behalf of the plaintiff that he is an individual pursuing claims against the State of Queensland and various members of the executive government of the State allegedly acting in the course of their duty and the implication that the defendants are better resourced than is the plaintiff is, in the circumstances, a fair comment and a relevant consideration in the exercise of my discretion under consideration here.
It is probably arguable that the plaintiff (more accurately his legal advisers) ought to have appreciated sooner than they apparently did, the implications of the cabinet minutes. It is, however, difficult to conclude when that should have occurred and to say, having regard to all the circumstances, that the lapse of time between the discovery of the note and the ultimate realisation of its implication was unreasonable or excessive. Put another way, the delay is explained by the circumstances, particularly the disputes about discovery.
Those conclusions seem to me to have two implications. First, although I appreciate that this is not an application under s.31 of the Act, it seems that the fact is that the plaintiff could not have been aware of the matters founding the proposed causes of action sooner than 28 August 1990. The limitation period had expired more than two years previously. It is in my view not unreasonable that the plaintiff did not immediately appreciate the significance of the discovered material. I have dealt with the explanation for the delay above.
It is convenient to consider the issues of prejudice and the consequences of delay together. The events of May 1985 are now more than 11 years old. The cabinet meetings were earlier than that. Harper was not the Attorney-General during the whole of the period to which the minutes refer and the members of the cabinet are now long retired from public life or are deceased. By the time the matter comes to trial, witnesses giving evidence in respect of the matters arising as a consequence of the proposed pleading will be speaking of events which took place 12 or more years ago. They will have been required to direct their attention to those events only subsequent to the notice of amendment given this year. The events relevant to the proposed pleading were far from being the only concern of such witnesses at the time. They were Ministers of the Crown and members of parliament. The events the subject of the minutes were far from being their only concern. It is extremely unlikely that any potential witness would have an independent recollection of the events associated with cabinet meetings prior to May 1985 or of the subsequent significance or developments matters dealt with at those meetings. A case conducted on the basis of the proposed pleadings would not be a case in which the evidence would be confined to contemporaneous written records. The minutes are what the description minutes and notes implies.
Harper retired from public life on 19 September 1992 and is now 70 years of age. I bear in mind that he is a defendant in the action as currently pleaded and must be given instructions in respect of it and can be expected to participate in any trials. Nevertheless he will not have had occasion to turn his mind to the issues raised by the proposed statement of claim earlier than 19 July 1996.
As McHugh J. points out in Brisbane South Regional Health Authority v. Taylor (ante) given the lapse of time between the relevant events and any trial, in this case prejudice may exist without the parties or anybody else realising it exists. Important or decisive evidence may have disappeared without anybody now "knowing" that it ever existed and the significance of a known fact or circumstance may be lost sight of because its relationship to other circumstance has been lost.
It seems to me that there is a further consideration. The 1988 action as it is presently pleaded is approaching the stage where it could be said to be ready for trial and allocated trial dates. At a review on 2 March 1995, directions were given with a view to facilitating the final resolution of the matter. These in effect went into abeyance when the need for the application I am dealing with arose and because of the application for further answers to interrogatories. Directions of the kind contemplated by Practice Direction 15 of 1996 will have to be considered but any directions given should, all else being equal, be capable of being complied with reasonably promptly. To allow the matter to proceed on the basis of the proposed pleading would almost inevitably retard the resolution of an action which is crying out for resolution without avoidable further delay.
So far as prejudice to the plaintiff is concerned, if leave to amend is refused he is still free to pursue the relief sought by the current pleadings and so he will not be deprived of an opportunity for redress in respect of the events of 28 May 1985.
It is submitted for the defendants that the proposed pleading is insufficiently particularised as to the contents and time of the giving of the alleged instructions by Harper to Cassidy and as to the decisions made by the State of Queensland founding the events of 28 May 1985 and that in spite of extensive interrogatories there is no evidence to support this. There is some point to those submissions. It is true of course that the plaintiff cannot know of these things but is dependent on the process of discovery (including interrogatories) to provide it with the information and evidence to make out a case. This among other things points up the difficulties about delay to which I have already adverted.
The defendants are rightly critical of para.1AA(ii) of the proposed pleading in particular, it set out earlier. The subparagraph introduces the concept of "the Government of Queensland" which is not previously appeared in the pleadings. It is in any event difficult to conceive what these allegations are related to. The pleading does not say what is meant by the "Government of Queensland" nor specify the political advantage referred to is. It does little more than provide a basis for speculation. I would not in any event be inclined to permit the delivery of a statement of claim containing para.1AA(ii) or the allegations founded on it.
The combined effect of the considerations canvassed is that I decline to grant leave to amend the statement of claim.
The plaintiff also seeks an order for the consolidation of the 1988 and 1996 actions but acknowledged that this would not be necessary if the amendment was allowed. The amendment having been refused I do not think it is right to consolidate the actions since to do so would be fraught with the undesirable consequences to which I have already adverted as founding the refusal of leave to amend.
The defendant seeks to have the 1996 action struck out. As I understand it that is essentially on the basis that it is statute-barred although there have as yet been no pleadings. I will therefore, subject to further submissions, leave that issue open.
0
0
0