Calabro v The State of Western Australia
[2012] WASC 418
•14 NOVEMBER 2012
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: CALABRO -v- THE STATE OF WESTERN AUSTRALIA [2012] WASC 418
CORAM: BEECH J
HEARD: 7 NOVEMBER 2012
DELIVERED : 14 NOVEMBER 2012
FILE NO/S: CIV 1622 of 2012
BETWEEN: DOMINIC CALABRO
Plaintiff
AND
THE STATE OF WESTERN AUSTRALIA
First DefendantTHE COMMISSIONER OF POLICE
Second DefendantPAUL McKENNER
Third DefendantPAUL STEWART BRUNINI
Fourth DefendantBRIAN CONNOLLY
Fifth DefendantTANYA LYNETTE McKENZIE
Sixth DefendantKYLIE NICOLE SEMPLE
Proposed Seventh Defendant
Catchwords:
Practice and procedure - Whether indorsement of claim on writ should be struck out - Turns on own facts
Legislation:
Rules of the Supreme Court 1971 (WA), O 6 r 1, O 20 r 19(1)
Result:
Some paragraphs of indorsement struck out
Category: B
Representation:
Counsel:
Plaintiff: In person
First Defendant : Ms K E McDonald
Second Defendant : Ms K E McDonald
Third Defendant : Ms K E McDonald
Fourth Defendant : Ms K E McDonald
Fifth Defendant : Ms K E McDonald
Sixth Defendant : Ms K E McDonald
Proposed Seventh Defendant : Mr H J Paiker
Solicitors:
Plaintiff: In person
First Defendant : State Solicitor for Western Australia
Second Defendant : State Solicitor for Western Australia
Third Defendant : State Solicitor for Western Australia
Fourth Defendant : State Solicitor for Western Australia
Fifth Defendant : State Solicitor for Western Australia
Sixth Defendant : State Solicitor for Western Australia
Proposed Seventh Defendant : Paiker & Overmeire Solicitors
Case(s) referred to in judgment(s):
A v State of New South Wales [2007] HCA 10; (2007) 230 CLR 500
ABB Service Pty Ltd v Hetherington [2001] WASCA 235
Agar v Hyde [2000] HCA 41; (2000) 201 CLR 552
Anderson v Effexseven (1998) 10 ANZ Ins Cas 61 ‑ 424
Batistatos v Roads and Traffic Authority of NSW [2006] HCA 27; (2006) 226 CLR 256
Bonney v Ngunytju Tjitji Pirni Aboriginal Corporation [2009] WASC 209
Diamond v Minter [1941] 1 KB 656
Fancourt v Mercantile Credits Ltd [1983] HCA 25; (1983) 154 CLR 87
Geldert v The State of Western Australia [2012] WASCA 226
Glendinning v Cuzens [2009] WASCA 21
Glew v Frank Jasper Pty Ltd [2010] WASCA 87
Lock v Ashton (1848) 12 QB 871
Mickelberg v The State of Western Australia [2007] WASC 140
Neil v Nott [1994] HCA 23; (1994) 121 ALR 148
State of New South Wales v Eade [2006] NSWSC 84
Tobin v Dodd [2004] WASCA 288
Wentworth v Rogers (No 5) (1986) 6 NSWLR 534
BEECH J:
Introduction
The plaintiff was charged with criminal offences in July 2010. In February 2012, less than a week before the trial, the State discontinued the charges. In this action, the plaintiff makes a number of claims against a number of parties arising out of those circumstances. The defendants have applied to strike out the indorsement of writ and for an order that the proceedings be dismissed.
I will begin by outlining the procedural history, before turning to the principles relevant to applications of this kind.
Background
There have been many iterations of the writ.
On 9 March 2012 the plaintiff filed an originating summons annexing a minute of a writ with an endorsed statement of claim.
On 12 April 2012 the plaintiff filed and served a substituted minute of a writ of summons with an indorsement of claim listing nine defendants.
On 22 June 2012 the plaintiff filed and served an amended substituted writ of summons in these proceedings. The indorsement named 19 causes of action without any further detailed information.
On 28 June 2012 at a directions hearing, I stated that the indorsement was inadequate and granted the plaintiff leave to file and serve an amended writ of summons with a proper indorsement.
On 18 July 2012 the plaintiff filed and served a further amended substituted writ of summons.
On 10 August 2012 the first to sixth defendants filed and served an application to strike out the indorsement of claim.
That application was made returnable on 16 August 2012. On that date I made directions providing the plaintiff with a further opportunity to amend the writ of summons in response to submissions made by the defendants.
On 3 September 2012 the plaintiff filed a chamber summons seeking to discontinue his action against a number of the defendants. There is no opposition to leave to discontinue against the current third and sixth defendants.
On 8 October 2012 the plaintiff filed a minute of amended substituted writ of summons against four defendants:
(a)the State of Western Australia;
(b)the Commissioner of Police;
(c)Detective Senior Constable Brian Connolly and a proposed new defendant Kylie Semple.
On 19 October 2012 the plaintiff filed another minute of amended substituted writ of summons in the same terms, but reinstating Detective Sergeant Paul Brunini as the fourth defendant.
In the circumstances, it is appropriate to address the defendants' strike out application to the most current form of the plaintiff's writ, namely the minute of amended substituted writ of summons filed on 19 October 2012.
Legal principles
An indorsement of claim must be a concise statement of the nature of the claim made, and of the relief or remedy required in the action: O 6 r 1 Rules of the Supreme Court 1971 (WA).
An indorsement serves three important functions:
1.it informs the defendant of the nature of the claim made and the relief sought so as to enable the defendant to determine whether he or she should enter an appearance and, if so, whether it should be a conditional or unconditional appearance;
2.it enables the determination, for the purposes of the relevant Limitation Act, of whether a cause of action is contained in the writ, as the Limitation Act is concerned with the date upon which an action is commenced. A cause of action in this context means a factual situation which will entitle a person to approach a court for relief: Morgan v Banning (1999) 20 WAR 474, 475; and
3.it sets out the metes and bounds within which the statement of claim must be framed; O 20 r 2(2) provides that a statement of claim must not contain any allegation or claim in respect of a cause of action unless that cause of action is mentioned in the writ or arises from facts which are the same as, or include or form part of, facts giving rise to a cause of action so mentioned.
Glendinning v Cuzens [2009] WASCA 21 [29]; ABB Service Pty Ltd v Hetherington [2001] WASCA 235 [7] ‑ [10].
As McLure J explained in ABB Service Pty Ltd v Hetherington [11], the nature and extent of the information necessary to meet the requirement that the indorsement contain a concise statement of the nature of the claim made and the relief or remedy required does not depend upon a rigid formula. Relevant information can be conveyed in different way and adequacy is to be determined from the indorsement as a whole.
In that case, McLure J held (Wheeler J agreeing) that the indorsement was inadequate in that it did not put the facts in a recognisable legal framework showing how the plaintiff's claim arose and the relationship between the claim and the loss referred to in the indorsement [14]. Further, it was held that there needs to be sufficient factual information in the indorsement to enable an assessment of limitation questions to be made [16] ‑ [17].
When, on an application by a defendant, it is established that an indorsement is defective, there are four courses that may (depending upon the nature of the defendant's application) be open to the court. A court may:
(a)set aside the writ (O 6 r 1(2));
(b)strike out the indorsement in whole or in part (O 20 r 19);
(c)grant leave to the plaintiff to amend the indorsement (O 6 r 1(2), O 20 r 19); or
(d)order the plaintiff to provide further particulars of the indorsement (O 6 r 1(2)); Glendinning v Cuzens [31].
The defendants in this case also apply to strike out the indorsement on the grounds that it reveals no cause of action, is scandalous, frivolous or vexatious, may prejudice, embarrass or delay the fair trial, or is otherwise an abuse of process, under O 20 r 19(1).
The caution with which the power to grant summary disposal is to be exercised is well known. In an application by a defendant, the defendant bears the onus of showing that there is no serious question to be tried on any cause of action raised by the plaintiff: Anderson v Effexseven (1998) 10 ANZ Ins Cas 61 ‑ 424, 74, 756. The power to order summary disposal should never be exercised unless it is clear there is no real question to be tried: Fancourt v Mercantile Credits Ltd [1983] HCA 25; (1983) 154 CLR 87, 99. It is only in the clearest of cases, when there is a high degree of certainty about the ultimate outcome of the proceeding if it went to trial, that summary disposal ought be ordered: Agar v Hyde [2000] HCA 41; (2000) 201 CLR 552 [57]; Batistatos v Roads and Traffic Authority of NSW [2006] HCA 27; (2006) 226 CLR 256 [46].
In the case of litigants in person, on an application for summary disposal, the court must be astute to ensure that, in a poorly expressed or unstructured statement setting out the claim, there is no viable cause of action which, with appropriate amendment or permissible assistance from the court, could be put into proper form: Wentworth v Rogers (No 5) (1986) 6 NSWLR 534, 536 ‑ 537; Tobin v Dodd [2004] WASCA 288 [15]. A court should be careful to see that the rights of an unrepresented litigant have not been 'obfuscated by their own advocacy': Neil v Nott [1994] HCA 23; (1994) 121 ALR 148, 150; Glew v Frank Jasper Pty Ltd [2010] WASCA 87 [10].
The indorsement of claim contains six paragraphs, each making a separate claim. I will deal with the claims in turn.
Before doing so, it is convenient to deal with the question of the vicarious liability of the first and second defendants, respectively the State of Western Australia and the Commissioner of Police.
Vicarious liability for police officers' conduct
The plaintiff's claims against the State and the Commissioner of Police are based on vicarious liability. There is no claim of the direct commission of any tort by the State or the Commissioner of Police. The plaintiff claims that both the State and the Commissioner of Police are vicariously liable for torts committed by police officers.
The defendants submit that:
(a)at common law, neither the State nor the Commissioner of Police is vicariously liable for the acts of a police officer;
(b)such vicarious liability on the part of the State can arise, if at all, under s 137 of the Police Act 1892 (WA);
(c)section 137 makes the State vicariously liable for the acts of police officers done without corruption or malice;
(d)the Police Act does not create any vicarious liability on the part of the Commissioner of Police.
For the reasons that follow, I accept these submissions of the defendants, and, in my view, the contrary is not arguable.
In Mickelberg v The State of Western Australia [2007] WASC 140 [115] ‑ [145], Newnes J summarily dismissed a claim that the State of Western Australia was vicariously liable for acts of a police officer. As his Honour's analysis of the cases demonstrates, it is authoritatively established that at common law the doctrine of vicarious liability does not attach to acts committed in the exercise of an independent function vested personally in an individual, and a police officer's conduct is of that character. I respectfully adopt his Honour's analysis, and reach the same conclusion here.
The plaintiff invited attention to the statutory regime for management of police officers by the Commissioner of Police, referring, among others, to s 5, s 6 and s 9 of the Police Act. He submits that that statutory regime, combined with general principles regarding vicarious liability of employers, make it at least arguable that the Commissioner of Police and the State of Western Australia are vicariously liable at common law for the acts of individual police officers. I do not accept that submission. In my view, the position has been authoritatively established in the way explained by Newnes J in Mickelberg.
Further, the plaintiff pointed to decisions in New South Wales in which the State of New South Wales was held vicariously liable for malicious prosecution by an individual police officer. However, that does not assist the plaintiff. That is because the statutory regime concerning vicarious liability for police officers in New South Wales is quite different to the regime in Western Australia. As to the position in New South Wales under s 8 of the Law Reform (Vicarious Liability) Act 1983 (NSW), see State of New South Wales v Eade [2006] NSWSC 84.
The plaintiff also referred to the Crown Suits Act 1947 (WA). That Act does not create vicarious liability on the part of the State of Western Australia where it otherwise does not exist. The absence of vicarious liability on the part of the State for the acts of an individual police officer does not arise from any immunity on the part of the State. Rather, it arises from the peculiar character of the function exercised by a police officer.
Paragraph 1 - invasion of privacy
Paragraph 1 of the indorsement is in the following terms:
1.Invasion of privacy
a)Detectives of a senior police unit applied for warrants against the plaintiff for phone taps, wire taps, and other covert surveillance. Warrants were available from 3 March 2010 to 31 May 2010. The basis lacked reasonable and probable cause and the investigative unit operated outside of its jurisdiction and under false pretences in pursuit of a false charge based on assumed associations. Police conducted the surveillance and recorded the personal and professional life of the plaintiff. Later the evidence collected from this investigation was made available to others. Allegations made against the plaintiff in order to procure the warrant were false. These actions caused the plaintiff's privacy to be invaded, humiliation, mistrust, paranoia and sleeping problems. [Detective Connolly] is liable and the first and second defendants are vicariously liable and are all responsible for the plaintiff's injuries and the plaintiff is entitled to compensation from the defendants. The plaintiff claims general damages and aggravated damages.
In Australian law, there is no tort of invasion of privacy. See, for example, Fleming's The Law of Torts (10th ed) ch 26. The common law does not recognise a general right to privacy, or a more limited right to privacy for telephone communications: Geldert v The State of Western Australia [2012] WASCA 226 [44].
Paragraph 1 of the indorsement complains that warrants were obtained without reasonable and probable cause based on false allegations and under false pretences. It asserts that the investigation unit acted outside its jurisdiction.
In my view the nature of the claim is not revealed in par 1.
Paragraph 1 of the indorsement does not reveal a claim for misfeasance in a public office or for the tort of collateral abuse of process. As to the elements of those torts, see Bonney v Ngunytju Tjitji Pirni Aboriginal Corporation [2009] WASC 209 [38], [63] (misfeasance in a public office) [64] ‑ [65] (collateral abuse of process).
For these reasons, in my view, par 1 of the indorsement does not contain a concise statement of the nature of the claim made. It should be struck out.
There should be leave to amend. It cannot be said, with sufficient certainty to justify refusal of leave to amend, that there may not be a viable claim of some (yet to be identified) kind against Detective Connolly and the State.
For the reasons given under the heading 'Vicarious liability for police officers' conduct':
(1)no claim can be made against the Commissioner of Police; and
(2)the State of Western Australia is vicariously liable for a police officer's tort only if it is committed without malice or corruption.
Paragraph 2 - false imprisonment from 20 July 2010 to 21 July 2010
In the course of argument the plaintiff proposed to amend par 2 of the indorsement. The amendments are shown in marked up form:
2.False Imprisonment
a)At approximately 10 am the morning of 20 July 2010 Plaintiff was asked to attend police headquarters Curtin House via phone by Detective Brunini for the purpose of a 'chat'. The appointment was made for 3 pm and that was when the plaintiff arrived. The Plaintiff accompanied Detective Brunini to his floor which was secure. Immediately the plaintiff was ordered by Detective Brunini to remove his shoes and the contents of his pockets, which remained outside of a holding cell that he was immediately locked in. The plaintiff was unaware that he would be locked up upon his arrival. The plaintiff felt an assertion of authority and submission to imprisonment. The Plaintiff was not informed of being under arrest until several hours later during an official recorded interview. The charge was false and without any reasonable basis causing the plaintiff to be wrongfully arrested. When en‑route to other holding facilities and the Perth Magistrates court, the plaintiff was escorted by several law enforcement officers. The plaintiff was falsely imprisoned by ministerial actions until approximately 3 pm on 21 July 2010 by at which point a judicial order was made by a Magistrate at the Perth Magistrates Court. Detective Connolly was in charge of the investigation and signed the charge sheet. It is to be inferred that these actions occurred with Detective Connolly's concurrence and under his direction. [Detectives Connolly and Brunini] are liable and the first and second defendants are vicariously liable and are responsible for the plaintiff's injuries and the plaintiff is entitled to compensation from the defendants. The plaintiff seeks general and aggravated damages.
With those amendments, the defendants did not press their application to strike out par 2 of the indorsement, apart from against the Commissioner of Police. For the reasons already given, the Commissioner of Police is not arguably vicariously liable for the torts of a police officer. I strike out the indorsement against the Commissioner of Police, the second defendant.
Paragraph 3 - false imprisonment from 21 July 2010 to 9 February 2012
In this paragraph, the plaintiff complains that he was placed on bail on 21 July 2010 and remained on bail until 9 February 2012. He complains that the bail conditions imposed caused him embarrassment and humiliation.
In my view, this claim for false imprisonment is doomed to fail and should be struck out.
First, in the period of which he complains, the plaintiff was not imprisoned. He was on bail.
Secondly, and in any event, to the extent that his liberty was constrained by the bail conditions imposed in this period, that constraint arose by judicial order. Once a person's liberty is constrained by judicial order, there is no room for a claim for false imprisonment. Any complaint in that regard must be made, if at all, through the tort of malicious prosecution. See Fleming's The Law of Torts (10th ed) [2.90]; Balkin RP, Davis LR, Law of Torts (4th ed, 2009) [3.36]; Diamond v Minter [1941] 1 KB 656, 663; Lock v Ashton (1848) 12 QB 871.
Paragraphs 4 and 5 - malicious prosecution
In par 4, the plaintiff makes complaints about a charge of extortion laid against him. In par 5, the plaintiff complains about restraining order applications pursued by Detective Connelly. In both paragraphs he alleges vicarious liability on the part of the State and the Commissioner of Police.
The elements of malicious prosecution are:
(1)that proceedings of the kind to which the tort applies were initiated against the plaintiff by the defendant;
(2)that the proceedings were terminated in favour of the plaintiff;
(3)that the defendant, in initiating or maintaining the proceedings, acted maliciously; and
(4)that the defendant acted without reasonable and probable cause; A v State of New South Wales [2007] HCA 10; (2007) 230 CLR 500 [1].
In the course of argument the plaintiff amended par 4 to insert 'Detective Connolly acted maliciously in laying, and or alternatively maintaining, the charge'. A similar addition was made to par 5. With those amendments, the defendants did not pursue their application to strike out pars 4 and 5 as they relate to Detective Connolly. The defendants do not accept that the tort of malicious prosecution applies to an application for a restraining order, but will pursue that objection after the statement of claim is filed.
For the reasons already explained, there is no room for a claim that the first or second defendants are vicariously liable for the tort of malicious prosecution. In short, that is because:
(a)at common law, there is no vicarious liability in respect of the acts of police officers;
(b)the statutory qualification to that, in s 137 of the Police Act, specifically excludes acts done with corruption or malice; and
(c)further, s 137 does not make the Commissioner of Police vicariously liable.
Consequently, the claim in pars 4 and 5 against the first and second defendants will be struck out.
Claim of breach of duty against the proposed seventh defendant
In this paragraph the plaintiff complains that the proposed additional defendant, Ms Semple, owed and breached a duty of care arising from her status as surety for the plaintiff. He complains that she was aware of the consequences of withdrawing her surety. Further, the plaintiff complains that as a consequence he was in custody for 19 hours.
In my view, it is not arguable that a surety owes a duty of care to an accused person in deciding whether to withdraw the surety.
A surety undertakes in writing to forfeit a specified amount of money if the accused fails to comply with a requirement of his bail undertaking, including the requirement to appear in court: s 35 of the Bail Act 1982 (WA). By its nature, the role of surety arises through the voluntary act of the proposed surety.
A surety must be approved under s 40.
A surety can apply under s 48 for cancellation of his or her undertaking. The application can be made at any time before the time specified for the accused's appearance in court. The accused must appear on any such application, failing which a warrant can be issued: s 48(3). By s 48(4), upon the appearance of the accused, the court shall cancel the surety undertaking. The court does not have a discretionary decision to make about cancellation. A surety need not provide any reason to the court for applying to cancel the surety undertaking. On such an application, the court can revoke bail and remand the accused in custody, or grant fresh bail to the accused: s 48(4), s 55(1)(d), (e).
Thus by an application under s 48 a surety can bring to an end the obligation which he or she had voluntarily undertaken. I do not accept that it is arguable that, by voluntarily becoming a surety, the surety owes a duty of care to the accused.
A surety is entitled to act in his or her own interests in deciding to apply and in applying for cancellation of their surety undertaking. For example, a surety may decide that there has become an unacceptable risk that the accused will fail to appear, or will breach some other bail condition. A surety owes no duty to an accused to act in the accused's interests, or to consider the accused's interests, in deciding to apply for cancellation.
For these reasons, there is no arguable case against the proposed seventh defendant and I would not grant leave to add the proposed seventh defendant.
Conclusion
For these reasons, I would:
(1)grant leave to discontinue the action against the third and sixth defendants;
(2)strike out par 1 of the indorsement with leave to amend;
(3)strike out the claim in par 2 against the second defendant;
(4)strike out pars 3 and 6;
(5)strike out the claims in pars 4 and 5 against the first and second defendants;
(6)otherwise dismiss the first to sixth defendants' application; and
(7)dismiss the plaintiff's application for leave to add Ms Semple as a defendant.
Costs
The plaintiff does not oppose an order that he pay Ms Semple's costs fixed in the sum of $1,000.
I will otherwise hear from the parties as to the costs of the application.
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