Caterina Raso v Mark Ronald Bayliss - [2005] ACTSC 94

CATERINA RASO & ANOR v MARK RONALD BAYLISS & ORS [2005] ACTSC 94 (29 September 2005)

PROCEDURE – dismissal of proceedings for want of prosecution - Supreme Court Rules 1937 (ACT), O 33A – whether there has been ‘due cause’ for the delay – nature and degree of prejudice alleged by applicants – matters to be considered – application allowed.

Supreme Court Rules 1937 (ACT), O 33A
Crimes Act 1900 (NSW), s 352A
Service & Execution of Process Act 1901 (Cth)

Birkett v James [1978] AC 297
Lenijamar Pty Ltd v AGC Limited (1990) 27 FCR 388
Hill v Nuttall [2000] ACTSC 103
Ulowski v Miller [1968] SASR 277
Witten v Lombard Australia [1968] 88 WN (Part 1) (NSW) 405
Stollznow v Calvert [1980] 2 NSWLR 749
Micallef v ICI Australia Operations Pty Limited [2001] NSWCA 274
McKenna v McKenna [1984] VR 665
Vidler v Merit Engineering Pty Ltd (1987) 86 FLR 213
McKanna v Aspect Homes (1983) 51 ALR 603
Tyler v Custom Credit Corp Ltd [2000] QCA 178
Raso v NRMA Insurance Ltd (unreported, New South Wales Court of Appeal, Mahoney CJ, Priestley and Handley JJA, 14 December 1992)
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541

Law Book Company, Laws of Australia, vol 33 (at 15 August 2002) 33 Torts, ‘33.8 Intentional Torts’ [96]

No. SC 203 of 1988

Judge: Gray J
Supreme Court of the ACT

Date: 29 September 2005

IN THE SUPREME COURT OF THE  )
  )  No. SC 203 of 1988
AUSTRALIAN CAPITAL TERRITORY  )

BETWEEN:CATERINA RASO
First Plaintiff

AND:ANTONIO RASO
Second Plaintiff

AND:MARK RONALD BAYLISS
First Defendant

AND:KENNETH DAVID LLEWELLYN
Second Defendant

AND:MICHAEL PATRICK McGANN
Third Defendant

AND:MARK ANTHONY KIMBER
Fourth Defendant

ORDER

Judge:  Gray J
Date:  29 September 2005
Place:  Canberra

THE COURT ORDERS THAT:

The proceedings in this matter be dismissed.

The first defendant, Mark Ronald Bayliss, by notice of motion dated 5 July 2004 and the second defendant, Kenneth David Llewellyn, the third defendant, Michael Patrick McGann and the fourth defendant, Mark Anthony Kimber by a separate notice of motion dated 9 August 2004, seek that the plaintiffs’ claim in this matter be dismissed.

The statement of claim

The plaintiffs’ claim by writ and statement of claim attached, is for wrongful arrest and imprisonment which is alleged to have taken place on 3 July 1986 in the Australian Capital Territory. The writ was filed in this court on 19 February 1988.

The four defendants are police officers, the first defendant being a member of the Australian Federal Police (AFP) and the other three defendants members of the New South Wales Police Force.

Paragraph 2 of the statement of claim alleges:

On or about the 3^rd day of July 1986 at 4 Tanumbirni Street Hawker in the Australian Capital Territory the defendants and each of them wrongfully and without reasonable cause arrested the plaintiffs and each of them and took them and each of them to the Canberra City Police…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2005] ACTSC 94
Decision Date

CaseChat Overview and Summary

In the Supreme Court of the Australian Capital Territory, the case of Caterina Raso and Antonio Raso versus Mark Ronald Bayliss, Kenneth David Llewellyn, Michael Patrick McGann, and Mark Anthony Kimber was dismissed. The plaintiffs alleged wrongful arrest and imprisonment by the defendants, who were police officers, on 3 July 1986. The case was filed on 19 February 1988, and no defense was filed, despite requests for particulars and an outline of facts. The defendants sought dismissal under Supreme Court Rules 1937 (ACT), O 33A for delay without due cause.

The court considered whether the plaintiffs had delayed prosecution without just cause and if such delay prejudiced the defendants' ability to have a fair trial. The plaintiffs argued they had not abandoned the proceedings, but the court noted the significant delay of nearly fourteen years. The court examined the length of the delay, the explanation for it, the prejudice to the defendants, and other relevant factors. The plaintiffs provided limited explanations for the delay, and the court found the explanations unsatisfactory.

The defendants argued that the passage of time and loss of documents severely prejudiced their ability to defend the claim. The court acknowledged the potential prejudice to the defendants' ability to justify the arrest and the risk of injustice due to the delay. Despite the serious consequences for the plaintiffs, the court concluded that the plaintiffs had delayed prosecution without just cause and dismissed the proceedings.

Orders