Calabro v The State of Western Australia [No 3]
[2014] WASC 84
•19 MARCH 2014
CALABRO -v- THE STATE OF WESTERN [No 3] [2014] WASC 84
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2014] WASC 84 | |
| Case No: | CIV:1622/2012 | 12 DECEMBER 2013 | |
| Coram: | KENNETH MARTIN J | 19/03/14 | |
| 21 | Judgment Part: | 1 of 1 | |
| Result: | Application allowed | ||
| B | |||
| PDF Version |
| Parties: | DOMINIC CALABRO THE STATE OF WESTERN AUSTRALIA BRIAN CONNOLLY PAUL STEWART BRUNINI |
Catchwords: | Practice and procedure Amended writ Substituted statement of claim Strike out application by defendants Application to disallow amendments Turns on own facts |
Legislation: | Criminal Investigation Act 2006 (WA), s 128(1), s 128(2) Police Act 1892 (WA), s 137(3), s 137(5) Rules of the Supreme Court 1971 (WA), O 20, O 21 |
Case References: | A v State of New South Wales [2007] HCA 10; (2007) 230 CLR 500 Beckett v State of New South Wales [2013] HCA 17; (2013) 248 CLR 482 Calabro v The State of Western Australia [No 2] [2013] WASC 367 Dunlop v Woollahra Municipal Council [1982] AC 158 Kable v State of New South Wales [2012] NSWCA 243; (2012) 268 FLR 1 McFadzean v Construction, Forestry, Mining & Energy Union [2007] VSCA 289; (2007) 20 VR 250 Morton v Mitchell Products Pty Ltd [1996] FCA 828; (1996) 21 ACSR 497 New South Wales v Kable [2013] HCA 26; (2013) 87 ALJR 737 Northern Territory of Australia v Mengel [1995] HCA 65; (1995) 185 CLR 307 Noye v Robbins [2010] WASCA 83 Opperman v The State of Western Australia [2011] WASC 25 Rajski v Scitec Corporation Pty Ltd (Unreported, NSWCA, 16 June 1986) The Balmain New Ferry Company Ltd v Robertson [1906] HCA 83; (1906) 4 CLR 379 Tobin v Dodd [2004] WASCA 288 Williams v Spautz [1992] HCA 34; (1992) 174 CLR 509 Young v Cooke [2013] NSWCA 79 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Plaintiff
AND
THE STATE OF WESTERN AUSTRALIA
First Defendant
BRIAN CONNOLLY
Second Defendant
PAUL STEWART BRUNINI
Third Defendant
Catchwords:
Practice and procedure - Amended writ - Substituted statement of claim - Strike out application by defendants - Application to disallow amendments - Turns on own facts
Legislation:
Criminal Investigation Act 2006 (WA), s 128(1), s 128(2)
Police Act 1892 (WA), s 137(3), s 137(5)
Rules of the Supreme Court 1971 (WA), O 20, O 21
Result:
Application allowed
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
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
Case(s) referred to in judgment(s):
A v State of New South Wales [2007] HCA 10; (2007) 230 CLR 500
Beckett v State of New South Wales [2013] HCA 17; (2013) 248 CLR 482
Calabro v The State of Western Australia [No 2] [2013] WASC 367
Dunlop v Woollahra Municipal Council [1982] AC 158
Kable v State of New South Wales [2012] NSWCA 243; (2012) 268 FLR 1
McFadzean v Construction, Forestry, Mining & Energy Union [2007] VSCA 289; (2007) 20 VR 250
Morton v Mitchell Products Pty Ltd [1996] FCA 828; (1996) 21 ACSR 497
New South Wales v Kable [2013] HCA 26; (2013) 87 ALJR 737
Northern Territory of Australia v Mengel [1995] HCA 65; (1995) 185 CLR 307
Noye v Robbins [2010] WASCA 83
Opperman v The State of Western Australia [2011] WASC 25
Rajski v Scitec Corporation Pty Ltd (Unreported, NSWCA, 16 June 1986)
The Balmain New Ferry Company Ltd v Robertson [1906] HCA 83; (1906) 4 CLR 379
Tobin v Dodd [2004] WASCA 288
Williams v Spautz [1992] HCA 34; (1992) 174 CLR 509
Young v Cooke [2013] NSWCA 79
- KENNETH MARTIN J:
Introduction
1 My reasons for decision of 11 October 2013 in Calabro v The State of Western Australia [No 2] [2013] WASC 367 provide background to this application brought by the defendants.
2 Subsequent to those October 2013 reasons, Mr Calabro, who acts in person, filed a 'Minute of Ammended [sic] Substituted Writ of Summons' (MASWS) and a further document which is labelled a 'Substituted Statement of Claim' (SSOC), both were filed on 5 November 2013.
3 The indorsement of claim now seen upon the MASWS excises all reference to formerly proposed fourth and fifth defendants - that issue being resolved against Mr Calabro in the October 2013 reasons.
Overview of three civil claims
4 Mr Calabro seeks to ventilate civil claims arising out of three distinct but related events. Mr Calabro categorises his grievances respectively as his claims number 1, 2 and 3.
5 The remaining three defendants to the action comprise the State of Western Australia (the State) as first defendant and two serving West Australian police officers, Detective Senior Constable Brian Connolly, who is the second defendant, and Detective Sergeant Paul Stewart Brunini, who is the third defendant.
6 Claim number 1 is advanced as against all three defendants. By par 1 of the SSOC it appears to be grounded on the asserted acts of the defendants by reason of them:
(a) inviting [Mr Calabro] to the police station known as Curtin House for 'a chat' at 3 pm on 20 July 2010; then
(b) taking [Mr Calabro] into custody at Curtin House;
(c) arresting and unlawfully detaining [Mr Calabro] until approximately 3 pm on 21 July 2010 …
(d) this false imprisonment was undertaken by Police officers; who were purporting to do their duty; whilst they were abusing their powers which also constitutes Misfeasance in public office by the second and third defendants.
7 The SSOC then displays paragraphs provided under a heading, 'Particulars of False Imprisonment and Misfeasance in Public Office'. The assertion as to false imprisonment put against the defendants by claim 1 is not new. However, an assertion of 'misfeasance in public office' is newly asserted against the second and third defendants under the current SSOC.
8 There follows in the SSOC pars 2 through 51 all appearing under the heading I mentioned. The heading 'Particulars of Loss and Damages' precedes par 52. Paragraph 54 of the SSOC asserts:
If it is found that in instituting the proceedings, either or both of the [police officers] did not act maliciously then in the premises and by reasons of s 137(5)(a) of the Police Act 1892 (as amended) the [State] is liable for the loss and damages arising from the false imprisonment committed by the [police officers].
9 Mr Calabro's claim number 2 by the SSOC would appear to be concerned with a distinct civil grievance arising out of the institution and continuation against him of charges brought on 21 July 2010, that event occurring subsequent to Mr Calabro's arrest and detention the previous day. As now seen articulated by the SSOC, claim number 2 presents at par 55 and reads:
The institution and continuation of the prosecution dated 21 July 2010 at approximately 3 pm against [Mr Calabro] by [Detective Senior Constable Brian Connolly] for the charge of intent to extort Diploma Group Ltd by demanding property by oral threat to Nicola Domenico DiLatte and Domenico Buonaventura Dilatte under section 397(2) of the Criminal Code Act 1913 was an act of Abuse of Process or Malicious Prosecution and Misfeasance in Public Office by [Detective Senior Constable Brian Connolly].
10 Following SSOC par 55, there appears a heading 'Particulars of Abuse of Process or Malicious Prosecution and Misfeasance in Public Office'. There follows pars 56 through 81 - which present under that heading.
11 As formulated par 56 repeats and confirms preceding pars 1 through 51. Accordingly, pars 57 to 81 proceed from that edifice.
12 Mr Calabro's contentions manifesting between pars 57 to 81 appear to be directed solely at the second defendant, Detective Connolly. I note in that respect particularly pars 81 and 82. Notwithstanding par 85 presents as directed towards both the second and third defendants and then as against the State.
13 Paragraph 85 reads:
If it is found that in instituting the proceedings, either of the [police officers] herein did not act maliciously then in the premises and by reason of s 137(5)(a) of the Police Act 1892 (as amended) and s 33(b) of the Director of Public Prosecutions Act 1991 the [State] is liable for the loss and damages arising from the Abuse of Process committed by [Detective Senior Constable Connolly].
14 There appears no dispute that criminal charges laid in 2010 against Mr Calabro were discontinued by the DPP on 9 February 2012. This happened very shortly before Mr Calabro was due to stand his trial in the District Court of Western Australia, on 13 February 2012.
15 Mr Calabro's claim number 3, in a temporal sense seeks to raise further grievances by reference to further events occurring only after the criminal charges against Mr Calabro were discontinued in February 2012. Claim number 3 relates to alleged circumstances by which Detective Connolly on 7 March 2012 had obtained, ex parte, three violence restraining orders (VROs) against Mr Calabro. Claim number 3 is articulated at par 86 of Mr Calabro's SSOC, in terms:
The institution of the proceedings dated 7 March 2012 against [Mr Calabro] by [Detective Senior Constable Connolly] for the grant of 3 Violence Restraining Orders pursuant to section 25(1) of the Violence Restraining Orders Act 1997 on behalf of Domenico DiLatte, Nicola DiLatte, and Philip Schober was an act of abuse of process and misfeasance in public office by [Detective Senior Constable Connolly].
16 There follows in the SSOC after par 86, pars 87 through 104. Then follows, under the heading 'Particulars of Loss and Damages' par 105. Once again the thrust of these grievances appears directed at Detective Connolly as second defendant, rather than Detective Brunini, as the third defendant. By par 107 Mr Calabro completes claim 3, contending:
If it is found that in instituting the proceedings [Detective Senior Constable Connolly] did not act maliciously then in the premises and by reason of s 137(5)(a) of the Police Act 1892 (as amended), the [State] is liable for the loss and damage arising from the abuse of process committed by [Detective Senior Constable Connolly].
17 Mr Calabro rounds off the SSOC claiming at par 108 a permanent stay of execution on all charges, asserting:
(a) section 76(1) of the Criminal Procedures Act 2004, as the charges constituted an abuse of process.
18 In overall context of a civil proceeding commenced after charges against Mr Calabro have been discontinued, par 108 is wholly unintelligible.
What is changing?
19 In terms of assessing what is altering and what is remaining it is first necessary to scrutinise Mr Calabro's amended indorsement to his MASWS in respect of his three civil claims. This is necessary as the SSOC does not, despite previous directions, mark up and show the changes as between the previous iteration of the pleading and the current SSOC iteration filed 5 November 2013.
20 It would appear that as regards claim 1, which presently raises the tort of false imprisonment as against all three defendants, Mr Calabro is now seeking to augment his subsisting pleas by further invoking the tortious cause of action of misfeasance in public office as against the two police officers and then as well (SSOC par 54), attributing vicarious responsibility for that misfeasance tort to the State.
21 As regards the events underlying claim 2, the amended indorsement on the MASWS shows Mr Calabro would seek to add two further tortious causes of action to the subsisting claim 2 grievance of alleged malicious prosecution. It appears Mr Calabro seeks to add fresh causes of action grounded on (asserted) collateral abuse of process and (asserted) misfeasance in public office - as against the two police officers. Concerning collateral abuse of process as a civil wrong, see Williams v Spautz [1992] HCA 34; (1992) 174 CLR 509, 523 and also Kable v State of New South Wales [2012] NSWCA 243; (2012) 268 FLR 1, [115] - [116] (Basten JA) making the point that the tort of collateral abuse of process requires proof of malice in the sense of the showing of an improper purpose in the proceeding (which may be civil or criminal in character). The appeal proceeded further to the High Court: see New South Wales v Kable [2013] HCA 26; (2013) 87 ALJR 737. However, the successful appeal does not bear upon my observations concerning collateral abuse of process as a tort.
22 Concerning claim number 3, it is apparent from the indorsement to the MASWS that Mr Calabro, as against Detective Connolly and the State now seeks to abandon his former reliance upon the tort of malicious prosecution - but substitute reliance upon the torts of collateral abuse of process and as well, the tort of misfeasance in public office.
Contentions of the defendants
23 The defendants contend upon the present application that leave should not be granted to Mr Calabro for any of his presently proposed amendments to the indorsement to his writ, seen on the MASWS, submitting that they are all conceptually misconceived. The defendants submit, quite correctly, that leave is required for Mr Calabro to amend the indorsement to his writ, if the proposed amendments would add additional causes of action: see Rules of the Supreme Court 1971 (WA) (RSC) O 21 r 1(3)(b). The defendants further contend leave ought not be granted where additionally proposed causes of action are assessed, as here, as conceptually flawed and ultimately bound to fail.
24 Concerning Mr Calabro's SSOC, the defendants correlatively contend leave is also required in order for his proposed amendments to be allowed. That is so notwithstanding Mr Calabro's SSOC does not describe itself as a minute - rather as a substituted pleading.
25 The SSOC now filed by Mr Calabro on 5 November 2013, must be assessed by reference to observations made in my October 2013 reasons at [20] and [37]. At that time, I afforded Mr Calabro an option of either relying upon his subsisting pleading, which I had eventually ascertained to be his amended statement of claim (ASOC) of 12 June 2013, or alternatively to file a further iteration of a 'minute' of amended statement of claim (within 14 days from the publication of those October 2013 reasons). Bearing in mind the difficulties I had encountered to that point, at [37] I said:
Any changes should be marked up to show what Mr Calabro is altering by deletion or addition in any further indorsement or statement of claim.
26 Subsequently, it appears Mr Calabro marked up the proposed alterations to his indorsement on the MASWS. However, he did not mark up changes and deletions upon his SSOC. There are some considerable variations as between Mr Calabro's 12 June 2013 ASOC and his SSOC of 5 November 2013, which I have had to winkle out myself by way of an analysis as between Mr Calabro's two pleadings.
27 Mr Calabro's SSOC does not label itself as a minute. Nevertheless it must be so assessed. Normally, there is unlimited leave to amend under the RSC up until seven weeks before the commencement of a trial. After that time leave to amend is required. Here, however, there is an unfortunate history of unsuccessful and deficient multiple pleading iterations from Mr Calabro. In consequence, the October 2013 reasons directed that should Mr Calabro elect to file a further pleading, this should first be submitted as a minute. My direction to that end was an effort at attempted case management to try to ensure that what might emerge would be compliant with the rules of court and would manifest some levels of coherence as regards content.
28 As regards the SSOC, the defendants contend that all the freshly proposed additional tortious causes of action must be refused leave by RSC O 20 r 19(1)(a) as failing to disclose any arguable causes of action. Save only for the subsisting pleas of false imprisonment seen only under claim 1, the defendants essentially contend that all Mr Calabro's pleas should be struck out as failing to disclose arguable causes of action under RSC O 20 r 19(1)(a).
29 Even as regards the false imprisonment averments under claim 1, the second and third defendants contend that Mr Calabro's SSOC is unsatisfactorily confusing and ought be struck out on the basis of embarrassment under RSC O 20 r 19(1)(c) and that in any event, as a subsidiary argument, an asserted basis by reference to some of the pleaded facts would not be arguable.
30 Alternatively, the defendants move under RSC O 21 r 3(3) for a disallowance of the entirety of the SSOC, had I assessed the SSOC document to be a pleading rather than a minute requiring leave. Since I do assess the SSOC document as only a minute which requires leave, it is not necessary to address the defendants' alternate contentions - although the underlying conceptual grievances are essentially common.
Discussion
31 The plenary point of challenge advanced by the State in respect of new causes of action Mr Calabro would seek to pursue under his claims 1, 2 and 3 is that the three torts - malicious prosecution, collateral abuse of process and misfeasance in public office - all require an establishment of malice, or an improper motive on the part of the alleged tortfeasor. It is then contended that all Mr Calabro's pleas are plainly deficient in that respect - insofar as he directs grievances at Detective Connolly or Detective Brunini.
32 The State says that nothing has emerged now or from Mr Calabro's multiple prior attempted iterations of indorsements to his writ and his prior pleadings to show there is any prospect of him identifying any legitimate or proper basis in underlying material fact to show he might hold an arguable basis to make good any contention of improper motive or improper purpose on the part of the two detectives as regards these freshly proposed tortious causes of action.
33 It remains the case that Mr Calabro acts alone and in person and demonstrably without benefit of any meaningful legal assistance. Nevertheless, the State points to well-known observations in the New South Wales Court of Appeal in Rajski v Scitec Corporation Pty Ltd (Unreported, NSWCA, 16 June 1986) contending essentially that sometimes even for an unrepresented party, enough is enough. In that decision, Samuels JA said:
[T]he advice and assistance which a litigant in person ought to receive from the court should be limited to that which is necessary to diminish, so far as this is possible, the disadvantage which he or she will ordinarily suffer when faced by a lawyer, and to prevent destruction from the traps which our adversary procedure offers to the unwary and untutored. But the court should be astute to see that it does not extend its auxiliary role so as to confer upon a litigant in person a positive advantage over the represented opponent … At all events, the absence of legal representation on one side ought not to induce a court to deprive the other side of one jot of its lawful entitlement … An unrepresented party is as much subject to the rules as any other litigant. The court must be patient in explaining them and may be lenient in the standard of compliance which it exacts. But it must see that the rules are obeyed, subject to any proper exceptions. To do otherwise, or to regard a litigant in person as enjoying a privileged status would be quite unfair to the represented opponent (27).
34 See also the observations of Mahoney JA (55 - 56), and as well Morton v Mitchell Products Pty Ltd [1996] FCA 828; (1996) 21 ACSR 497, 513 – 514; Tobin v Dodd [2004] WASCA 288 [14] - [15] and Opperman v The State of Western Australia [2011] WASC 25.
Some legal principles: malicious prosecution, collateral abuse of process and misfeasance in public office
35 I observe as regards the torts of malicious prosecution, collateral abuse of process and misfeasance in public office, that a holding of a wrongful intention by the alleged tortfeasor is a significant and required element in the establishment of each tort. The High Court of Australia, as regards the tort of malicious prosecution, explained in A v State of New South Wales [2007] HCA 10; (2007) 230 CLR 500 [1] it was necessary to show a defendant in initiating or maintaining proceedings acted 'maliciously': see as well the October 2013 reasons in Calabro [No 2] [25].
36 Regarding the tort of collateral abuse of process, high level case authority establishes it is necessary to prove that proceedings have been wrongfully instituted in order to achieve a purpose or effect an object, which purpose or object is beyond that which the legal process offers: see Williams v Spautz (523) and Calabro [No 2] [35] and Kable v State of New South Wales [116] referring to malice in the sense of an improper purpose.
37 Concerning misfeasance in public office, yet again an existence of malice in the alleged defendant tortfeasor is a key ingredient which needs to be shown to make good that cause of action.
38 In Northern Territory of Australia v Mengel [1995] HCA 65; (1995) 185 CLR 307 Deane J, referring to an earlier judgment of the Privy Council in Dunlop v Woollahra Municipal Council [1982] AC 158, 172, observed:
As Lord Diplock observed, in delivering the judgment of the Privy Council in Dunlop v Woollahra Municipal Council (339), the tort of misfeasance in public office is 'well-established'. Its elements are:
(i) an invalid or unauthorised act;
(ii) done maliciously;
(iii) by a public officer;
(iv) in the purported discharge of his or her public duties;
(v) which causes loss or harm to the plaintiff (370). (emphasis added)
39 Any plea of malice put against the defendant is a very serious matter. Malice in a defendant is not a condition to be casually tossed around. It is a grave allegation requiring a supporting basis in underlying facts which are identified. Because of this, the rules of court enact specific provisions requiring the supply of proper particulars of any underlying facts put forward to establish malice. As to that see RSC O 20 r 13(1)(b). Of course, malice in an alleged tortfeasor is capable of being inferred from objective facts. However, the facts need to be stated and seen in order for the grave inference to be arguably drawn.
40 For the tort of malicious prosecution, an improper purpose in the prosecutor in instituting criminal proceedings must be shown. The improper purpose must be the sole or dominant purpose of the prosecutor: again see A v State of New South Wales [55], [91]. Whilst malice can be proven by inference, its proof as a condition of the mind, is not a matter of conjecture or suspicion: see A v State of New South Wales [93].
41 With the tort of collateral abuse of process it is also necessary to show that the proceedings have been wrongfully instituted with a purpose, or to effect an object, which purpose or object is beyond that which the legal process offers: see Williams v Spautz (523), referred to in my previous reasons of 11 October 2013 [35].
Legal principles: false imprisonment
42 The tort of false imprisonment is contended for by Mr Calabro only as regards his claim 1 and, it would seem, concerning the series of events prior to Mr Calabro actually being charged with committing the crime of extortion, contrary to s 397(2) of the Criminal Code on 21 July 2010. Different considerations apply as regards establishing this tortious cause of action in contrast to the intent torts I have just canvassed. In The Balmain New Ferry Company Ltd v Robertson [1906] HCA 83; (1906) 4 CLR 379, O'Connor J (Griffith CJ and Barton J concurring) said:
Prima facie, no doubt, any restraint of a person's liberty without his consent is actionable. But, when the restraint is referable to the terms on which the person entered the premises in which he complains he was imprisoned, we must examine those terms before we can determine whether there has been an imprisonment which is actionable (389 - 390).
43 That case concerned a dispute over Mr Robertson being denied egress from a private wharf he had entered in order to board a ferry. Having found he missed the ferry, Mr Robertson sought to exit but was refused egress, unless he paid a further penny to turnstile operators of the private wharf owners. A standoff ensued. Mr Robertson's action for false imprisonment ultimately failed - on the basis that it was ascertained he had another means of egress from the wharf, namely, over the water. The consequence was that Mr Robertson had sustained no wrongful imprisonment.
44 Recently the New South Wales Court of Appeal in Young v Cooke [2013] NSWCA 79 [11] has endorsed observations by the Victorian Court of Appeal in McFadzean v Construction, Forestry, Mining & Energy Union [2007] VSCA 289; (2007) 20 VR 250. The McFadzean decisionidentified principles applicable to a contention of false imprisonment, in terms:
[T]he essence of the action of false imprisonment is the compelling of a person to stay at a particular place against his or her will. Accordingly, where a plaintiff has full knowledge and comprehension of the defendant's coercive conduct amounting to total restraint, the action depends upon proof that, were it not for the defendant's conduct, the plaintiff would not have submitted to the restraint. Consequently, it is not sufficient in law that conduct of the defendant has contributed to or influenced the plaintiff's decision to remain unless the conduct has overborne the plaintiff's will. It must be shown that, but for the defendant's conduct, the plaintiff would not have yielded to the total restraint …
[A]lthough the idea of false imprisonment is sometimes expressed in terms of a restriction on liberty which must be total, that does not mean that a restriction short of lock and key may not be actionable. In each case, it is a question of fact as to whether a restriction is so severe as to be characterised as false imprisonment. For example, if a victim is confined to an island, and the only means of egress is by swimming through dangerous waters to the mainland, there is no reasonable means of egress and the victim's confinement to the island is likely to amount to false imprisonment. If, however, there is reasonable means of egress or escape from detention, the restriction may not be enough. So, if a victim is confined to a room, and there is a reasonable means of egress through a door, the victim is in effect free to leave the room and there is no false imprisonment [41] - [42].
[F]alse imprisonment is the complete deprivation of liberty although … something short of confinement under lock and key may constitute false imprisonment. All that may be required is that the victim be constrained to remain at the will of the wrongdoer. But, a mere partial interference with freedom to travel by one route as opposed to another does not compel a person to remain. He or she is free to leave by the other route [85].
45 In Young v Cooke Emmett JA (with whom Meagher JA agreed) added:
Some circumstances clearly do not constitute false imprisonment. Other circumstances will cause reasonable minds to differ as to whether they constitute false imprisonment. At the other end of the spectrum, there are yet other circumstances that clearly constitute false imprisonment. The question is whether the circumstances of the present case fall between the two extremes, where reasonable minds may differ, or are at the extremity where one can say that the facts clearly do not constitute false imprisonment [12].
46 It is apparent from these case authorities that a cause of action for false imprisonment may be established by a plaintiff without needing to establish malice or, for that matter, establishing any improper motive or purpose on the part of an alleged defendant tortfeasor.
Evaluations
47 Close analysis of the SSOC with the indorsement to the MASWS reveals that their content amounts to no more than rather repetitive assertions or declarations by Mr Calabro of his complete innocence in respect of all charges against him. Mr Calabro then says that because the extortion charges first preferred against him in 2010 were, in the end, discontinued in 2012 by the DPP shortly before his trial there could not have ever been any grounds for a suspicion against him held by the two detectives when Mr Calabro was first arrested, then charged. The underlying reasoning is erroneous and must be rejected.
48 As the defendants contend, an examination of the question as to whether a 2010 prosecution was commenced or maintained without reasonable and probable cause directs attention to the state of affairs in 2010, when charges were preferred or when it is contended the prosecutor is alleged to have wrongfully maintained the prosecution. The nature of the enquiry necessarily directs scrutiny towards materials which a prosecutor had under consideration at that time. The enquiry is not directed at materials which might subsequently have come to light after charges were laid: see A v State of New South Wales [59] and Beckett v State of New South Wales [2013] HCA 17; (2013) 248 CLR 482 [4]. That a prosecution is subsequently discontinued in time on a basis that at that time it becomes accepted there is no reasonable prospect of a conviction - does not necessarily dictate that at the time proceedings were commenced or continued there was no reasonable or probable cause for commencement or continued prosecution: see Noye v Robbins [2010] WASCA 83 [205].
49 Bare assertions as to 'recklessness' and lack of proper foundation on the part of the second and third defendants, deliver no legitimate factual foundation for a pursuit of causes of action dependent upon showing an existence of malice, or the improper intent or wrongful purpose in police officers.
50 There manifestly presents a gaping conceptual deficiency in this respect in Mr Calabro's materials which no amount of repetition and assertions as to innocence will fill. A fundamental and essential ingredient for the tortious causes of action sought to be raised by Mr Calabro by his claims 1, 2 and 3, as regards malicious prosecution, collateral abuse of process or misfeasance in public office is wholly absent. This is fatal.
51 The previous reasons Calabro [No 2] at [16] catalogued what is a long and wholly unsatisfactory interlocutory history in this litigation, manifesting the repeated failure of Mr Calabro to deliver an acceptable pleading over almost a two-year period. Not only are the present attempted formulations of an indorsement of claim and a statement of claim still deficient as regards the absence of the essential intent element for these causes of action, it is also apparent that this conceptual deficiency has been manifested over a long period and that repeated attempts by Mr Calabro to draft around what is a terminal conceptual deficiency have failed.
52 I must in the end accept the defendant's submission that, as regards intent causes of action in tort sought to be raised by Mr Calabro, enough is now more than enough and these pleas must not only be struck out, but dismissed permanently.
53 That conclusion effectively ends all of claims 2 and 3. As regards claim 1, the conclusion leaves surviving only a cause of action grounded upon the tort of false imprisonment.
Further argument of the State as first defendant
54 Tortious causes of action predicated upon malicious prosecution, misfeasance in public office and collateral abuse of process, as regards claims 1, 2 or 3 necessarily also fail conceptually against the State, in any event.
55 This is because their hypothetical successful establishment as against one or other of the second or third defendants would necessarily involve proving that those police officers acted with malice in performing or purporting to perform their functions as members of the police force. Towards such assumed circumstances, s 137(5)(a) of the Police Act 1892(WA) inhibits an action against the State, on the basis of vicarious liability. The section debars responsibility in the State for corrupt actions by police officers.
56 As a matter of concept, therefore, the claims against the State, other than under claim 1 in respect of asserted false imprisonment, are flawed for this additional reason.
57 For convenience, at this point I set out the entirety of s 137. Its provisions are relevant not only as regards a protection afforded the State under s 137(5)(a), but also in respect of a further argument concerning the protection against personal liability delivered under s 137(3), and enjoyed by the second and third defendants as serving police officers in respect of Mr Calabro's grievance of false imprisonment by his claim number 1.
137. Protection from personal liability
(1) This section -
(a) is in addition to section 5 of the Criminal Code Act 1913; and
(b) does not affect any right to recover damages from the owner or driver of a motor vehicle in respect of the death of or bodily injury to a person directly caused by, or by the driving of, the motor vehicle,
but otherwise applies despite any other written law.
(2) This section applies to and in respect of anything done after the commencement of the Acts Amendment (Police Immunity) Act 1999.
(3) An action in tort does not lie against a member of the Police Force for anything that the member has done, without corruption or malice, while performing or purporting to perform the functions of a member of the Police Force, whether or not under a written or other law.
(4) An action in tort does not lie against a person for anything that the person has done, without corruption or malice, in assisting a member of the Police Force who is performing or purporting to perform the functions of a member of the Police Force, whether or not under a written or other law.
(5) The Crown is liable for a tort that results from -
(a) anything done by a member of the Police Force, without corruption or malice, while performing or purporting to perform the functions of a member of the Police Force, whether or not under a written or other law;
(b) anything done by a person, without corruption or malice, in assisting a member of the Police Force who is performing or purporting to perform the functions of a member of the Police Force, whether or not under a written or other law.
(6) The Crown's liability under subsection (5) does not extend to exemplary or punitive damages.
(7) If a person to whom subsection (3) or (4) applies does not cooperate fully with the Crown in the defence of an action in tort against the Crown in respect of anything done by the person, the Crown may recover from the person the Crown's costs of defending the action and any damages and costs awarded against the Crown in the action.
(8) For the purposes of subsection (7), a person does not cooperate fully with the Crown if the person refuses -
(a) to answer any question, including a question the answer to which is or may be self-incriminating; or
(b) to produce any object or recorded information in the person's possession or control,
that is relevant to the defence of the action.
(9) If a person, in cooperating with the Crown in the defence of an action referred to in subsection (8), gives an answer that is or may be self-incriminating, the answer is not admissible in any criminal or disciplinary proceedings against the person except proceedings for a criminal or disciplinary offence arising from the giving of a false answer.
False imprisonment under claim number 1: surviving aspects and asserted embarrassment
58 The defendants contend that what Mr Calabro has said between pars 1 and 54 in the SSOC is still unsatisfactorily unclear and hence from a pleading perspective it is embarrassing and can be struck out on that basis. Essentially, the defendants say that Mr Calabro has failed to distinguish between whether he is aggrieved over possibly three distinct matters as regards his arrest and imprisonment in 2010, namely:
(a) Alleged failure of the two detectives to advise Mr Calabro in the period between 3.00 pm and 8.00 pm on 20 July 2010 that he was under arrest.
(b) That there were no grounds on which the second and third defendants on 20 July 2010 might reasonably have suspected Mr Calabro of the extortion offences in respect of which he was arrested and detained at Curtin House that day, after Mr Calabro voluntarily attended around 3.00 pm after receiving a telephone call from Detective Sergeant Brunini, who had asked him to 'come in for a chat'.
By implication, Mr Calabro appears to be challenging the basis of his arrest by reference to the arrest powers of a police officer as conferred under s 128(2) of the Criminal Investigation Act 2006 (WA) as amended. Section 128(2) provides:
A police officer or a public officer may arrest a person for a serious offence if the officer reasonably suspects that the person has committed, or is committing, or is just about to commit, the offence.
The crime of extortion contrary to s 397 of the Criminal Code carries a statutory penalty of greater than 5 years' imprisonment. Hence it meets the definition of a 'serious offence' for the purposes of s 128(1) of the Criminal Investigation Act.
(c) Failing to bring Mr Calabro before a magistrate more timeously in order to allow Mr Calabro to seek and be granted bail upon the extortion charges preferred (ie, before 3.00 pm on 21 July 2010).
59 What manifests between pars 1 and 54 of the SSOC seems to embody a litany of irrational material, much of it in the way of bare assertion or conclusion culminating in the contention at par 51 that 'the plaintiff was treated no differently to criminals'.
60 In written submissions (par 11) the defendants contend that by reference to the content of what Mr Calabro has now assembled between pars 1 and 54 it is possible to glean at least:
(a) there was a significant police 'investigation into alleged extortion' (par 2 of the SSOC);
(b) the alleged extortion was in respect of parties with whom Mr Calabro accepted he had been involved in a commercial dispute (par 3 of the SSOC);
(c) Mr Calabro contended that the parties with whom he was in commercial dispute owed him several hundred thousand dollars on 'outstanding contractual entitlements' (par 4 of the SSOC);
(d) there had been a termination of Mr Calabro's contract in controversial circumstances by complainants who refused to pay Mr Calabro $600,000 which Mr Calabro claimed he was owed (par 8 of the SSOC);
(e) complainants alleged they had received threats against their lives unless they paid the money which was owed to Mr Calabro (par 21(d) of the SSOC);
(f) search warrants and telephone intercepts had been obtained of Mr Calabro's premises (pars 35 - 36 of the SSOC) with Mr Calabro challenging the lawfulness of the warrants or intercepts (par 38) albeit this not being within the scope of his proceedings; and
(g) complainants alleged that they were owed sums by Mr Calabro in respect of graffiti damage, arson and uncompleted work (par 6 of the SSOC).
61 Upon what is extractable as morsels above, the basis upon which Mr Calabro contends the second and third defendants, as serving detectives lacked reasonable grounds in 2010 for suspecting him of an extortion offence, in order to effect a lawful arrest, remains something of a mystery.
62 Repetitive assertions by Mr Calabro to the effect that no grounds existed or, that judged objectively, any grounds held were not reasonable - are bereft of a meaningful content. They assert the conclusion, but do not provide required underlying material facts to support the conclusion.
63 The SSOC in respect of claim 1 and Mr Calabro's contentions as to his false imprisonment by one or other of the two detectives does not clearly set out why, as at 20 July 2010, there was no basis to suspect Mr Calabro of extortion offences of which he was then charged next day and to effect his arrest upon the detectives holding a suspicion on reasonable grounds as to Mr Calabro having committed a serious offence. On this basis alone, claim 1 would be struck out as embarrassing, had it been filed as a pleading. But because these assertions are embodied within what is only a minute requiring leave, it is axiomatic leave should be refused.
64 Subject to what follows, the defendants do not oppose Mr Calabro having one further opportunity to properly formulate his contentions as to his 2010 false imprisonment under his claim 1.
65 That concession, however, is made on the basis the defendants would submit that, unlike with the intent founded torts I have earlier discussed, the tort of false imprisonment does not require any malign intent to be proved. However, from that premise it is then submitted that s 137(3) of the Police Act as amended, must thereby be a complete answer to Mr Calabro's cause of action in tort for false imprisonment against the police officers presently - so that the claim 1 action against them must fail.
66 That submission as to the State's ultimate position as it being the only correct defendant under claim 1 must, in my view, be stood over - until Mr Calabro has received one further opportunity to reformulate a claim 1 in respect of his contentions of false imprisonment by reference to the alleged acts or omissions of the second and third defendants. Whilst it is not necessary for Mr Calabro to prove malice or improper motive or intent in going about establishing the tortious cause of action of false imprisonment, nevertheless, it is possible, depending upon the precise underlying circumstances, that such a conclusion could be drawn. Hypothetically speaking, any future possible conclusion as to corruption or malice on the part of the second or third defendants in a context of conduct on their part which was assessed as causing the false imprisonment of Mr Calabro could then trigger an application of s 137(5) - on which scenario the State as first defendant would then be excluded from liability and correlatively by s 137(3) deliver a disqualification of the defendants from protection.
67 I reach a similar finding as regards the residual argument advanced by the defendants to the effect that insofar as the false imprisonment plea is grounded upon the alleged absence of reasonable grounds for the suspicion that Mr Calabro committed an offence, the cause of action would not be arguable. As discussed, the false imprisonment claim as currently formulated is too confused and prolix to tease out the specific basis or bases in terms of material facts. Given that I have found that it is, for precisely that reason, embarrassing, it is not strictly necessary to deal with other arguments addressed to a particular facet of the false imprisonment claim. However, it would be open to the defendants to ventilate such a complaint in future, if or when Mr Calabro's indorsement and statement of claim reach a point where the false imprisonment plea does clearly set out a factual basis or bases which can then be assessed from a perspective of potential arguability at trial.
68 At present in a pragmatic sense, it is simply impossible to render the required evaluations in circumstances where Mr Calabro's cause of action for asserted false imprisonment as put against all three defendants, is obfuscated by irrelevant, scandalous or conclusionary material which inhibits any reliable evaluation towards what Mr Calabro is actually complaining about under claim 1.
69 Accordingly, claim 1 will also be struck out on the basis that as formulated it is embarrassing contrary to RSC O 20 r 19(1)(c).
70 Claims 2 and 3 are to be wholly dismissed on the basis they fail to disclose arguable causes of action.
71 Mr Calabro may now bring in another marked-up minute of a proposed statement of claim within 28 days (and which requires my leave to become a pleading) so that any further attempts by him to advance the remaining allegation of false imprisonment under claim 1 can be evaluated in, hopefully, a less obscure context.
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