Bryce v Steinberg & Commissioner of Police
[2006] SADC 133
•19 December 2006
DISTRICT COURT OF SOUTH AUSTRALIA
(Civil: Appeal Against a Master's Decision)
BRYCE v STEINBERG & COMMISSIONER OF POLICE
[2006] SADC 133
Reasons for Decision of His Honour Judge Clayton
19 December 2006
PROCEDURE
Appeal from decision of District Court Master dismisisng action pursuant to 1987 Rule 3.01.
HELD: Appeal dismissed
District Court Rules r3.01, 46.18; Whistleblowers Protection Act 1993 s9, referred to.
Chapman v ABC (2000) 77 SASR 181 @ 184-7; Egan v Commonwealth Minister for Transport (1976) 14 SASR 445 @ 448 per Bray CJ; General Steel Industries v Commissioner for Railways [1964] 112 CLR 125 @ 129-130; Attorney-General of the Duchy of Lancaster v London & North Western Railway Co [1892] 3 Chancery Division 274; Wall v Bank of Victoria Ltd [1890] 16 VLR 2 @ 4; Republic of Peru v Peruvian Guano Co [1887] 36 Chancery Division 489 @ 496; Hill v Chief Constable of West Yorkshire [1989] AC per Lord Keith of Kinkel @ paragraph 63; Wilson v State of New South Wales (2001) 53 NSWLR 407; Tame v State of New South Wales (2002) 211 CLR 317 @ 418; Rigby v Chief Constable of Northamptonshire [1985] 2 All ER 985; Knightley v Johns [1982] 1 WLR 349; Swinney & Anor v Chief Constable of the Northumbria Police Force [1996] 3 WLR 968; Zalewski v Turcarolo [1995] 2 VR 562; Home Office v Dorset Yacht Co Ltd [1970] 2 All ER 294; X v State of South Australia (No 2) (2005) 91 SASR 258; Cran v State of New South Wales (2004) Aust Tort Reports 81-737; Martin v Watson (1996) 1 AC 74; Porter v OAMPS Ltd (No 2) [2005] FCA 729, considered.
BRYCE v STEINBERG & COMMISSIONER OF POLICE
[2006] SADC 133
Ms Bryce has commenced proceedings against Mr Steinberg (her former defacto partner) and the Commissioner of Police. The current edition of the Statement of Claim is a document amended by leave granted by a master on 21 November 2005. The document extends to 108 paragraphs. There are separate claims against Mr Steinberg and the Commissioner.
By a Notice for Specific Directions dated 1 February 2005 the Commissioner applied for an order that the action be dismissed or in the alternative that the pleadings be struck out. The application invoked Rules 3.01, 3.04, 46.18 and 67.01 of the 1987 District Court Rules and was supported by the affidavit of a solicitor employed within the Crown Solicitor’s Office which set out the history of the matter. The deponent referred to two other actions involving the plaintiff and the first defendant. The affidavit complained:
9.The second defendant is unable to ascertain from the Statement of Claim all of the legal causes of action upon which the plaintiff purports to rely. It appears that the plaintiff is purporting to frame actions in negligence and malicious prosecution, however, it is not clear whether additional causes of action are also intended.
10.In any event the plaintiff has not pleaded material facts which would give rise to actions in negligence or malicious prosecution. The plaintiff’s statement of claim does not plead sufficient facts with sufficient particularity to give rise to either negligence or malicious prosecution or any other cause of action.
The Commissioner’s application was heard by a master who had the benefit of detailed written submissions from each of the parties and lengthy oral submissions.
The plaintiff swore an affidavit in response to the solicitor’s affidavit on 12 October 2005 (FDN 33). The plaintiff’s affidavit sets out some factual matters and makes a number of general assertions such as the allegation that from 27 September 2001 the plaintiff has been victimised by members of the South Australian Police Department and the first defendant (paragraph 22), but does not particularise the factual basis for the general assertions.
On 4 August 2006 the reasons of the Master were posted to the parties. I will refer to the reasons in more detail below. The Master came to the conclusion that the plaintiff’s claim should be dismissed as against the Commissioner and ordered accordingly.
By a Notice of Appeal filed on 18 August 2006 the plaintiff appealed against that order. Rather than take the risk of misstating the grounds of appeal, I set them out hereunder:
1.The Appellant is a self represented litigant and at the time of filing of her original statement of claim on 13 May 2004 she had no legal training or experience and believed that she was following the rules as to pleadings by setting out an outline of facts relying on her belief that the numerous evidence presented within a trial would validate and support her claim.
2.The Appellant’s first and second attempt to amend the pleadings and build her case around the original pleadings proved to be extremely difficult due to the complex and convoluted nature of the facts surrounding the relationship between the parties of this action which led to the sustaining of the damage and loss.
3.The Appellant by her acts in the Public Interest on the night of the 27 September 2001 and continuing thereafter as an informant and a witness was protected by the Whistleblowers Protection Act 1993 and still remains to be protected by the Act.
4.The first defendant Mr Steinberg (a public servant), employed by the State Government within Tafe was not a petty thief but rather a calculating criminal and a dangerous manipulative individual responsible for diverse criminal activity undetected spanning over numerous years including theft of public service equipment to alter identity of vehicles the theft of which he was also responsible for along with numerous other acts of theft and other criminal behaviour evidence of which was all on the premises on the night of 27 September 2001.
5.The Whistleblowers Protection Act 1993 itself does not indicate that it measures the degree of criminal activity, malfeasance, public danger and then chooses as to whom should be or not be protected by the Act according to the degree of the criminal activity as this within itself would discriminate against those individuals whom make public interest disclosures thus placing them at risk.
6.The Appellant’s statement of Claim is factual in every account supported by evidence with sufficient facts and evidence for this matter to proceed to trial.
7.The Interim Restraining Order was illegal and has never been confirmed. It was illegal as it was founded on false and misleading statements and was deliberate in its intent to victimize and discredit the plaintiff and its issue was concurrent at a time that the plaintiff as an informant was protected by the Whistleblowers Protection Act 1993 and was providing the evidence and statements to members of SAPOL which eventually led to charges being made against the first defendant.
8.The Appellant’s submissions support her claim both in fact and in law and for this action to be dismissed on the grounds of the Police being immune from public prosecution in this case would be a grave injustice as how has the Public Interest been served when the criminal has escaped to Queensland without adequate prosecution in fact a $300.00 fine this being less than a fine for shoplifting a chocolate bar whilst the plaintiff, the informant and witness has suffered post traumatic stress disorder stemming from the antecedent events of the 27 September 2001 as is evidenced by medical report, has lost her business as a real estate agent and continues to suffer discrimination and persecution.
9.How has the Public Interest been served when it is submitted by the Crown and accepted within reasons for decisions of the 4th August 2006 that S.A.P.O.L. in effect can discriminate as to whom or whom not to investigate and that in fact they could forego their statutory duty and walk away from a crime scene without numerous evidence being seized which in the public interest had been protected by the plaintiff by the blocking of the driveway on the evening of the 27 September 2001 and by this discriminatory decision place the plaintiff at risk of reprisal.
10.And how has the Public Interest been served by wasting public monies and resources in investigating and persecuting the plaintiff, informant and witness concurrently whilst she is providing evidence and witness statements against a criminal who due to Police negligence has escaped adequate penalty and conviction.
11.The Action against the Commissioner of Police is neither frivolous nor vexatious. It is a serious matter of unique complex and convoluted facts and the issues of negligence, malicious prosecution, false imprisonment can only be exposed fully by the production of evidence at trial for determination.
12.The Appellant submits that her action against the Police Commissioner is supported as summarized as per paragraph 104 of Reasons for Decision:
“In some circumstances a special relationship may arise as between plaintiff and defendant based on the idiosyncrasies of an individual relationship. Special knowledge on the part of a defendant or vulnerability or reliance by the plaintiff on the defendant may elevate a relationship to the status of requiring the imposition of duty of care …..” and
paragraph 112 whereby it is stated:
“These cases demonstrate that the public policy issues previously discussed, which remain paramount, are only overridden by factual scenarios which are striking in their particular circumstances and where there are conflicting public policy considerations”.
13.The Appellant further submits that her Outline of Argument in support of her claim dated 26 October 2006 competently negates the Crown’s Argument to have her claim struck out and dismissed and demonstrates that S.A.P.O.L. cannot rely on blanket immunity against public prosecution, particularly in cases where other public policy such as the Whistleblowers Protection Act 1993 can be taken into consideration and where public policy issues “are only overridden by factual scenarios which are striking in their particular circumstances and where there are conflicting public policy considerations.”
With some minor exceptions the document does not articulate grounds of appeal at all. Many of the matters set out in the so-called grounds are irrelevant to the appeal. Most importantly, the grounds do not point to any basis upon which the decision of the master should be set aside.
On 4 February 2005 the plaintiff made an application for one master to disqualify himself from hearing the Commissioner’s application because of bias. That application and its consequences have delayed the resolution of the strike out application.
The argument for the Commissioner was set out in a written outline. The outline asserted that no viable causes of action are shown in the Statement of Claim and that the deficiency could not be rectified by amendment. As to the possibility of a claim in negligence it was asserted that no duty of care arises on the part of the Commissioner for reasons of public policy with respect to police investigations, conflicting duties for police and the demand for coherence in the law. There is no claim against the Commissioner personally and any liability on his part must be vicarious liability for the conduct of other police officers.
So far as malicious prosecution is concerned the written argument on behalf of the Commissioner asserted that essential elements of the tort, namely the termination of proceedings in the plaintiff’s favour and the identity of the prosecutor could not be made out.
Insofar as the Statement of Claim raises the tort of false imprisonment it was asserted by the Commissioner that the essential element of unlawfulness on the part of the tort feasor was not pleaded and cannot be made out because the plaintiff had pleaded guilty to the breach of the restraining order which was the basis of her detention.
As to the Whistleblowers Protection Act 1993 the Commissioner argued that the Act does not apply to the circumstances of the case and the plaintiff could not make out the tort of victimisation under section 9.
The Commissioner complained that either no or insufficient facts were pleaded with respect to the necessary elements of each of the causes of action and that the plaintiff had not shown any link between any damage suffered by her and her reporting incidents to the police.
In his reasons, the learned Master summarised the incidents and communications between the plaintiff and SAPOL which are referred to in the Statement of Claim as follows:
27.09.01
Attendance by police at 73 Victoria Street, Prospect as a result of which it is alleged that the police failed to seize property and the plaintiff subsequently contacted the rightful owners of the property.
04.11.01
Attendance by police on the plaintiff for a witness interview.
15.11.01
Restraining order obtained by Mr Steinberg against the plaintiff.
31.12.01 & 29.01.02
Mr Steinberg’s breach of a restraining order.
02.04.02
Breach of restraining order by the plaintiff followed by her arrest and prosecution.
28.08.02
Assault by Mr Steinberg on the plaintiff reported to the police.
11.01.04
Verbal attack by Mr Steinberg on the plaintiff reported to the police and plaintiff requested a restraining order.
No date
Plaintiff charged with breaches of restraining order in January and March 2002.
Those events occurred in the context of a defacto relationship between the plaintiff and Mr Steinberg which had broken down and become very bitter.
In addition, the master extracted the following facts from the Defence:
1. Police officers investigated the reported break and entry and theft of goods from premises of a Mrs McCracken at 2/36 Provost Street, North Adelaide;
2. A telephone call was received by SAPOL on 27 September 2001 by a person alleging they were about to be bashed;
3. Constables Pengilly and Kempster attended 73 Victoria Street Prospect where the plaintiff made allegations that Mr Steinberg was involved in the theft of two motor vehicles situated at that address. The details of these motor vehicles were noted;
4. Constables Curyer and Hoffmann interviewed the plaintiff at Fulham Gardens on 4 November 2001 during which interview she made allegations to them in relation to Mr Steinberg about the theft of motor vehicles, theft of property from TAFE and the process of re-branding car engines. During this interview she told them that she had contacted the victims of the various alleged thefts telling them that he was the perpetrator thereof, and documents and photographs were received from the plaintiff;
5. The plaintiff made a report alleging that Mr Steinberg had breached a restraining order to which he was subject;
6. On 31 December 2001 the plaintiff made a report to police alleging that Mr Steinberg had intentionally rammed her vehicle with his bicycle, a further report was made alleging that the plaintiff had driven his car into her bicycle, and she had attended at Holden Hill Police where photographs of her vehicle were taken;
7. On 2 April 2002 the plaintiff was arrested for breach of a Domestic Violence Restraining Order and charged with a breach of that order and property damage, that was refused bail, but subsequently she was granted bail on a bond and conditions;
8. Mr Steinberg pleaded guilty in August 2002 to a charge of unlawful possession;
9. On 28 August 2002 the plaintiff made a report to SAPOL alleging she was being stalked by Mr Steinberg;
10. In November 2003 the applicant laid a complaint and summons against the plaintiff charging her with three counts of breaching a Domestic Violence Restraining Order.
The master gave careful consideration to the detailed arguments that had been put to him by both parties. He took into account the principle that in the case of an unrepresented party the court should err on the side of caution in considering whether to allow the plaintiff an opportunity to replead the claim. The master also took into account the principle that the power to dismiss a claim or strike out pleadings is to be used sparingly and that a claim should not be dismissed if there is some prospect of success, including by amendment to the pleadings. He referred to the well-known decisions in Chapman v ABC[1], Egan v Commonwealth Minister for Transport[2] and General Steel Industries v Commissioner for Railways[3].
[1] (2000) 77 SASR 181 @ 184-7
[2] (1976) 14 SASR 445 @ 448 per Bray CJ
[3] [1964] 112 CLR 125 @ 129-130
The master considered each of the four possible causes of action separately. He accepted the submission on behalf of the Commissioner that the plaintiff had not pleaded any or sufficient facts to allow a cause of action to be made out against the Commissioner. The master observed that no amendment to the pleadings could rectify the defect, as the various elements of each cause of action could not be made out. In this context it is important that the plaintiff did not make any application to amend the Statement of Claim in order to cure the defects. Nor has the plaintiff suggested on this appeal that the defects could be remedied by amendment.
Rule 3.01 of the District Court Rules provided that the court can dismiss proceedings which disclose no cause of action known to the law or cannot by amendment be made to disclose such a cause of action, which are frivolous, vexatious or an abuse of the process of the court. Rule 46.18 provided that the court may order that the whole or any part of the pleadings in an action be struck out where the pleading discloses no reasonable cause of action or defence.
The master took into account the principles that for there to be “no cause of action” the claim must be obviously unsustainable, that the claim must be so manifestly faulty that it does not permit an argument and that the pleading must be so bad that no legitimate amendment could cure the defect; Attorney-General of the Duchy of Lancaster v London & North Western Railway Co[4], Wall v Bank of Victoria Ltd[5] and Republic of Peru v Peruvian Guano Co[6].
[4] [1892] 3 Chancery Division 274
[5] [1890] 16 VLR 2 @ 4
[6] [1887] 36 Chancery Division 489 @ 496
The master observed that it was difficult to ascertain from the Statement of Claim all of the causes of action upon which the plaintiff purports to rely. He concluded that the plaintiff purports to frame actions in negligence, malicious prosecution, false imprisonment and pursuant to the Whistleblowers Protection Act 1993. The master observed that it was not clear whether any additional causes of action were intended. For present purposes it can be noted that the plaintiff has not appealed from that finding and has not suggested that she does have further causes of action.
The master took into account the fact that the plaintiff had two previous opportunities to amend her pleadings.
Negligence
So far as the claim was based in negligence the master referred to cases dealing with the liability of police for damages for negligence in relation to their investigations of criminal conduct. The purpose of police investigations is to ascertain whether there has been a breach of the criminal law and whether charges should follow. Such investigations and decisions require the exercise of discretion. There are strong public policy reasons why the exercise of the discretion should not be the subject of review. The master referred to Hill v Chief Constable of West Yorkshire[7], Wilson v State of New South Wales[8] and Tame v State of New South Wales[9]. In Wilson (supra) the court observed:
An action for negligence under the Common Law does not lie in respect of the exercise by police of their investigative functions on the basis that the investigations conducted were inadequate and that no action for negligence under the common law lies in respect of the performance of police prosecutorial functions, whether in the initiation of the prosecution, in its conduct or in respect of its continuance to the time of decision by a curial body.
[7] [1989] AC 53 per Lord Keith of Kinkel @ paragraph 63
[8] (2001) 53 NSWLR 407
[9] (2002) 211 CLR 317 @ 418
The Master considered the provisions of the Police Act 1998 and decided that there was no statutorily created duty of care.
The master acknowledged that in special circumstances a duty may arise because of the idiosyncrasies of the particular relationship between the plaintiff and the defendant and referred to Hill (supra) where Lord Keith said at 59 that:
There is no question that a police officer, like anyone else, may be liable in tort to a person who was injured as a direct result of his acts or omissions. So he may be liable in damages for assault, unlawful arrest, wrongful imprisonment and malicious prosecution and also for negligence. Instances where liability for negligence has been established are Knightley v Johns [1982] 1 WLR 349 and Rigby v Chief Constable of Northamptonshire [1985] 1 WLR 1242.
In her written submissions the plaintiff had referred to Rigby v Chief Constable of Northamptonshire[10]; Knightley v Johns[11]; Swinney & Anor v Chief Constable of the Northumbria Police Force[12]; Zalewski v Turcarolo[13]; and Home Office v Dorset Yacht Co Ltd[14]. The master held that the cases referred to by the plaintiff demonstrate that public policy issues remain paramount and are only overridden by factual scenarios which are striking in their particular circumstances and where there are conflicting public policy considerations. He noted that by and large the courts have consistently declined to find the existence of a duty of care. He referred to X v State of South Australia (No. 2)[15] where it was held that knowledge on the part of the Parole Board that a convicted paedophile released on licence was giving computer lessons to groups of children was not sufficient to impose a duty of care with respect to children who might be subsequently molested and Cran v State of New South Wales[16] where there was held to be no duty in respect of a delay by the police and the DPP in supplying a report to the court. The master concluded that there was nothing raised in the Statement of Claim that brought the present case within the principles in Swinney, Zalewski and Rigby (supra).
[10] [1985] 2 All ER 985; [1985] 1 WLR 1242
[11] [1982] 1 WLR 349
[12] [1996] 3 WLR 968
[13] [1995] 2 VR 562
[14] [1970] 2 All ER 294
[15] (2005) 91 SASR 258
[16] (2004) Aust Tort Reports 81-737
The master noted that Mr Steinberg, the person most likely to bear a grudge against an informant, was actually present when the police attended on 27 September 2001 and the plaintiff made the relevant disclosures.
He accepted the submission that no duty of care can be imposed on the applicant for reasons of public policy, inconsistency of duties, and coherency of the law. He observed that there are no facts pleaded which could support a finding of a special relationship between the plaintiff and the Commissioner such as to put the case in the special category where a duty of care should be imposed and he concluded that the plaintiff would not on any view succeed in a claim for negligence.
I agree with the reasoning of the learned Master. The plaintiff has not pleaded circumstances which could give rise to a special relationship, nor has she pleaded facts which could establish the breach of a duty.
Nothing has been brought forward on the hearing of the appeal which would require the decision of the master as to a cause of action in negligence to be upset.
Malicious Prosecution
Paragraphs 67, 68, 102, 103 and 106 of the Statement of Claim relate to the granting of a restraining order for twelve months in favour of Mr Steinberg against the plaintiff. Paragraph 67 acknowledges that Mr Steinberg was granted the interim restraining order against her. Accordingly, that prosecution could not give rise to a claim for malicious prosecution for the simple reason that the proceedings were not terminated in the plaintiff’s favour.
The allegations in paragraphs 83 to 85, 87, 103 and 106 of the Statement of Claim relate to a charge against the plaintiff for the breach of the restraining order which is referred to in paragraph 68. The plaintiff pleaded guilty to that charge. That is acknowledged in paragraph 87 of the Statement of Claim. Again the plaintiff could not succeed in an action for malicious prosecution because the proceedings were not terminated in her favour.
As the master observed there is a further consideration, namely who was the prosecutor. He referred to Martin v Watson[17], where Lord Keith of Kinkel wrote at 86-87:
Where an individual falsely and maliciously gives a police officer information indicating that some person is guilty of a criminal offence and states that he is willing to give evidence in court of the matters in question, it is properly to be inferred that he desires and intends that the person he named should be prosecuted. Where the circumstances are such that the facts relating to the alleged offence can be within the knowledge only of the complainant….. then it becomes virtually impossible for the police officer to exercise any independent discretion or judgment, and if a prosecution is instituted by the police officer the proper view of the matter is that the prosecution has been procured by the complainant.
[17] (1996) 1 AC 74
It is a question of identifying the “moving force” behind the prosecution: see Porter v OAMPS Ltd (No. 2)[18].
[18] [2005] FCA 729
No facts are pleaded which establish that the Commissioner was the “moving force” behind the prosecution.
The thrust of paragraph 101.1 appears to be negligence. The “detrimental defamation; damage to her (the plaintiff’s) real estate business, psychological injury, damage and financial loss” which are alleged are not particularised.
The master noted that the plaintiff had not pleaded facts on which the court could make findings of malice or lack of reasonable cause. They are essential elements in the tort of malicious prosecution.
The master said that he was satisfied that the plaintiff would not be able to amend her pleadings to satisfy the necessary requirements or to establish that the Commissioner was a prosecutor for the purpose of the tort.
The master concluded that the plaintiff could not substantiate a cause of action for malicious prosecution even if she was given an opportunity to amend. I agree. Again I note that there is no application by the plaintiff to amend to cure this defect.
False Imprisonment
This cause of action is raised by paragraph 83 of the Statement of Claim which alleges that the plaintiff was “arrested and jailed for breach of a restraining order”. The plaintiff pleaded guilty to the breach of the restraining order which was the basis for her detention. Accordingly, no claim for false imprisonment can arise.
The master found that the plaintiff had not pleaded any facts on which a finding could be made that she had been unlawfully detained. He also found that there would be public policy considerations preventing her from suing for false imprisonment.
In my opinion the plaintiff’s plea of guilty to the charge of breaching the restraining order is conclusive of this alleged cause of action. In addition, there is no reason to upset the finding of the master that the plaintiff had pleaded no facts on which the court could make a finding that she had been unlawfully detained.
I agree that the plaintiff cannot succeed on a cause of action for false imprisonment.
The Whistleblowers Protection Act 1993
Section 9 of the Whistleblowers Protection Act 1993 creates the statutory tort of victimisation.
The Master held that the plaintiff cannot establish the necessary threshold in that she cannot establish that because of her disclosure of information she has suffered detriment or has been victimised. If there was to be any reprisal as a consequence of the suggested whistle blowing by the plaintiff, it would come from Mr Steinert, who was the subject of the whistle blowing.
The master was not satisfied that the plaintiff had any cause of action pursuant to the Whistleblowers Protection Act 1993. Again, I agree with the conclusions of the master. The Statement of Claim does not allege any facts which establish the tort of victimisation.
Other Observations
The plaintiff’s Reasons for Appeal raise many general complaints. I have read the written outline provided by the Commissioner on the application to strike out. I have also read the Appeal Book prepared by the appellant, including her Reasons for Appeal which extend to 22 pages and the Outline of Argument presented by the plaintiff to the master which extends to 55 paragraphs and contains quotations from and observations about many cases.
In paragraph 4 of her written submissions to the master the plaintiff argued that authorities establish that a duty of care can exist when a special relationship or close proximity exists between the plaintiff and the police. I have already decided that this is not such a case. There is nothing about the relationship between the plaintiff and SAPOL which would give rise to a special relationship.
Paragraph 12 and following of the Outline contain a detailed discussion of the claim under the Whistleblowers Protection Act 1993. In my opinion that claim is answered by the fact that Mr Steinberg was actually present on 27 September 2001 when the plaintiff made disclosure of the relevant information.
The plaintiff asserts that the interim restraining order against her was illegal for two reasons which she describes in paragraph 27. Whether those reasons are valid or not, the fact remains that the order was in existence and the plaintiff did plead guilty to a breach of the order. The plaintiff has not attempted to set aside the order or the conviction.
In paragraph 45 of her Reasons for Appeal the plaintiff says with respect to the master’s finding:
...that she pleaded guilty to an illegal charge because she had no choice, she was suffering severe post traumatic stress related condition, mental breakdown and at that time in 2002 had no legal knowledge or training, she was financial (sic) destitute as she was unable to work or secure her rightful defacto relationship entitlements and could not afford the services of a solicitor to defend her rights on an ongoing basis.
Whether those reasons are correct or not is inconsequential for present purposes. The fact of her plea of guilty is by itself sufficient.
To the extent that the plaintiff complains that members of SAPOL failed to seize “vital material evidence” on 27 September 2001, the plaintiff has not established that the members of SAPOL were under a duty to seize such evidence. Also she has not pointed to any loss flowing from the alleged failure to seize the evidence.
In paragraph 46 of her Reasons for Appeal the plaintiff claims that the negligence of SAPOL contributed to the victimisation of the plaintiff. The alleged victimisation is not particularised and the way in which negligence resulted in victimisation of the plaintiff is unexplained.
In paragraph 47 of her Reasons for Appeal the plaintiff argued that her claim against the Commissioner should be reinstated:
Because of the unique factual circumstances of this case and conflicting public policy namely the Whistleblowers Protection Act 1993 as opposed to that of police immunity against public prosecution and the complexity of the convoluted nature of the facts of this present case and the severity of the negligence that triggered to elevate the plaintiff’s status to that of victim and being wrongly accused can only be exposed at trial by the evidence as is supported by the observations of Kirby, J in Thorpe v Commonwealth (No. 3) [1947] 147 ALR 677 as referred to in paragraphs 84 and 85.
That contention is no answer to the reasons which motivated the learned Master to dismiss the action.
The plaintiff has had two opportunities to bring forward a Statement of Claim which satisfied the pleading requirements, but has not been able to do that. The current edition of the Statement of Claim does not disclose facts which would make out a cause of action known to the law. In my opinion the Statement of Claim could not, on the factual scenario which has been revealed, be made by amendment to disclose any cause of action and the master was correct to dismiss the proceedings pursuant to Rule 3.01. There is no application to make any further amendment.
Paragraphs 48 and 49 of the plaintiff’s Reasons for Appeal ask rhetorically how have the interests of justice and the interests of the public been served? Those questions are irrelevant to a determination of the appeal.
Rule 3.01 exists for good reason. It avoids the cost of proceedings which are doomed to fail. It is as much in the interests of the plaintiff as it is in the interests of the defendant that the parties should not incur the expense of proceedings which disclose no cause of action and cannot be made to disclose such a cause of action. I allow for the fact that the plaintiff is unrepresented.
In my opinion the claim is unsustainable and so manifestly faulty that it does not admit of argument. Attorney-General of the Duchy of Lancaster v London and North Western Railway Co and Wall v Bank of Victoria Ltd (supra).
I have not dealt with the Grounds of Appeal which are set out in the Notice of Appeal seriatim. Many of the statements made in the document are not grounds of appeal at all. The fact that the plaintiff was self-represented and the pleadings difficult is a reason to give the plaintiff some latitude, but is not a reason for not complying with the most basic requirements of a Statement of Claim. In fact the circumstances surrounding the relationship between the parties are unlikely to be complex or convoluted as the plaintiff asserts in paragraph 2 of the Grounds of Appeal; it is the plaintiff’s manner of pleading that causes the complexity. Even if the surrounding circumstances were complex, that may be a basis for leniency, but it does not cure the defects and would not be a basis for allowing the appeal.
Ground 7 of the Grounds of Appeal raises the legality of the interim restraining order and asserts that the order has never been confirmed. There is no requirement that the order should be confirmed. As I have already observed the decisive fact is that the plaintiff pleaded guilty to a breach of the order.
The Grounds of Appeal raise no basis on which the appeal might be allowed. The facts disclosed by the plaintiff do not establish a cause of action and there is no reason to believe that the deficiency could be cured by amendment.
The appeal is dismissed.
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