Ea v Diaconu

[2019] NSWSC 795

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Ea v Diaconu [2019] NSWSC 795
Hearing dates:	7 June 2019
Decision date:	03 July 2019
Jurisdiction:	Common Law
Before:	R A Hulme J
Decision:	1. Pursuant to r 13.4(1) of the Uniform Civil Procedure Rules 2005 (NSW), the proceedings are summarily dismissed. 2. The Plaintiff is to pay the Defendants’ costs of this application and of the proceedings.
Catchwords:	CIVIL PROCEDURE — summary disposal — dismissal of proceedings — no reasonable cause of action disclosed – fundamentally flawed case – defects and deficiencies in pleadings – allegation of misfeasance in public office – absence of allegations that establish elements of the tort – failure to identify any public power or duty, or to plead any casually linked actual temporal loss – allegation of malicious prosecution – failure to plead relevant facts to show that first defendant instigated or maintained proceedings, to identify any person to whom elements of tort can be imputed, or plead facts to establish factual basis for absence of reasonable and probable case – discretion to re-plead refused – plaintiff’s failure to re-plead case despite opportunity indicative of appreciation of lack of viability of claim
Legislation Cited:	Australian Citizenship Act 2007 (Cth), s 25 Australian Federal Police Act 1979 (Cth), ss 4(1), 8(1)(b)(i) Criminal Code (Cth), ss 270.6(2), 271.2(1B) Migration Act 1958 (Cth), ss 245AC(1), 245AC(2) Uniform Civil Procedure Rules 2005 (NSW), rr 13.4(1)(a), 13.4(1)(b), 14.28(1)(a), 14.28(1)(b), 15.4
Cases Cited:	A v State of New South Wales (2007) 230 CLR 500; [2007] HCA 10 Bailey v Director General, Department of Natural Resources [2014] NSWSC 1012 Clark v State of New South Wales [2016] NSWSC 808 Clarke v State of New South Wales (No 4) [2015] NSWSC 1054 Edward Moses Obeid Snr v David Andrew Ipp [2016] NSWSC 1376; (2016) 338 ALR 234 Federal Commissioner of Taxation v Futuris Corporation Ltd (2008) 237 CLR 146; [2008] HCA 32 Golden v Littleproud [2019] NSWSC 120 Grass v Slattery [2018] FCA 1719 Kazal v Independent Commission Against Corruption [2019] NSWSC 556 Leerdam v Noori (2009) 227 FLR 210; [2009] NSWCA 90 Leinenga v Logan City Council [2006] QSC 294 Lock v Australian Securities and Investments Commission (2016) 248 FCR 547; [2016] FCA 31 McGuirk v The University of NSW [2009] NSWSC 1424 Northern Territory of Australia v Mengel (1995) 185 CLR 307; [1995] HCA 65 Nyoni v Shire of Kellerberrin (2017) 248 FCR 311; [2017] FCAFC 59 Obeid v Lockley [2018] NSWCA 71; (2018) 355 ALR 615 O'Brien v Bank of Western Australia Ltd [2013] NSWCA 71 Sahade v Bischoff [2015] NSWCA 418 Sanders v Snell (1998) 196 CLR 329; [1998] HCA 64 Shaw v New South Wales [2012] NSWCA 102 Shelton v National Roads and Motorists Association Ltd [2004] FCA 1393 Simmons v New South Wales Trustee and Guardian [2014] NSWCA 405 Spencer v Commonwealth of Australia (2010) 241 CLR 118; [2010] HCA 28 State of New South Wales v Landini [2010] NSWCA 157 Wood v State of New South Wales [2018] NSWSC 1247
Category:	Principal judgment
Parties:	Song Ea (Plaintiff) Dana Diaconu (First defendant) Commonwealth Director of Public Prosecutions (Second defendant) Commonwealth of Australia (Third defendant)
Representation:	Counsel: Mr A C Canceri (Plaintiff) Mr N Williams SC with Ms T Phillips and Ms G Westgarth (First, second and third defendants)   Solicitors: O’Brien Criminal & Civil Solicitors (Plaintiff) Australian Government Solicitor (First, second and third defendants)
File Number(s):	2018/170562

Judgment

1. HIS HONOUR: The plaintiff, Mr Song Ea, commenced proceedings on 31 May 2018 by filing a Statement of Claim against Ms Dana Diaconu, the Director of Public Prosecutions of the Commonwealth of Australia, and the Commonwealth of Australia, the first to third defendants respectively.

2. This is an application to have the proceedings summarily dismissed or to have the Statement of Claim struck out pursuant, respectively, to r 13.4(1)(a) and/or (b), or r 14.28(1)(a) and/or (b) of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR).

3. The proceedings arise from the plaintiff having been charged in 2012 with offences of conducting a business of sexual servitude and trafficking foreign sex workers contrary to the Criminal Code (Cth), s 270.6(2) and s 271.2(1B) respectively (the Criminal Code offences) and two offences of allowing a non-citizen to work in breach of a visa condition, contrary to the Migration Act 1958 (Cth), s 245AC(1) (the Migration Act offences) .

4. Mr Ea was tried for those offences in 2013 in the District Court of New South Wales before Zahra SC DCJ and a jury (although the Migration Act offences were in their aggravated form under s 245AC(2), as it then was). The jury was unable to agree upon any verdicts and was discharged.

5. Mr Ea was further tried in 2014 before Frearson SC DCJ and a new jury for substantially the same alleged conduct. The jury returned verdicts of not guilty for the Criminal Code offences. In relation to the Migration Act offences they returned verdicts of guilty for the statutory alternative offences in their basic form under s 245AC(1). Mr Ea was sentenced on 27 March 2015 to concurrent terms of imprisonment for 16 months but was released on recognisance forthwith.

The pleadings

6. The first defendant, Ms Diaconu, is a Federal Agent and member of the Australian Federal Police. The Statement of Claim alleges that she committed the tort of misfeasance in public office by reason of the manner in which she conducted herself whilst seated in the public gallery of the court room during the first trial.

7. The Statement of Claim also alleges the tort of malicious prosecution. It is pleaded that the proceedings in respect of the Criminal Code offences (but not the Migration Act offences) on the indictment at the second trial were instituted and maintained by Ms Diaconu without reasonable and probable cause (no honest belief in the case, or no sufficient basis for such a belief) and with malice. Particulars allege that she instituted the proceedings out of personal animus against Mr Ea based on him being the proprietor of a lawful brothel, and that she persisted in the prosecution to justify the public resources that had been expended in prosecuting him.

8. Malicious prosecution is also alleged in respect of the second defendant, the Director of Public Prosecutions for the Commonwealth of Australia, in maintaining the proceedings against Mr Ea without reasonable and probably cause (no honest belief in the case, or no sufficient basis for such a belief) and with malice (to justify the public resources that had been expended in prosecuting Mr Ea).

9. In respect of the third defendant, the Commonwealth of Australia, there is a pleading of vicarious liability in respect of the torts committed by Ms Diaconu.

Further and better particulars sought

10. The Australian Government Solicitor (AGS) acts for each defendant. Further and better particulars were requested by letter dated 16 August 2018. O'Brien Criminal and Civil Solicitors (O'Brien) replied by letter dated 10 October 2018. AGS wrote again on 31 October 2018 to seek further particularisation. The letter included information obviously intended to assist with pleading causes of action of the type involved. O'Brien replied by letter dated 4 January 2019. The reply responded to some of the specific requests made, but in respect of many of them, it simply referred to "as pleaded".

11. The AGS filed a Defence on 8 February 2019. The Notice of Motion whereby summary dismissal or striking out is sought was filed on 11 February 2019.

Principles in relation to summary dismissal and striking out

12. The defendants claim under both r 13.4(1) and r 14.28(1) that no reasonable cause of action has been disclosed. In addition, under r 14.28(1), they contend that the pleadings are embarrassing. There was no controversy as to the principles that apply and they are reasonably well known.

13. As to the claim of no reasonable cause of action being disclosed, the question is whether the claims are so obviously untenable or groundless that there is a high degree of certainty that they will fail if allowed to go to trial, and whether the case is one of the clearest in which the court may intervene to prevent the claims being litigated: Shaw v New South Wales [2012] NSWCA 102 at [32]. There is a more detailed summary of relevant propositions in Simmons v New South Wales Trustee and Guardian [2014] NSWCA 405 at [196]-[200], including as to the need to take the plaintiff's case at its highest, accepting the truth of all allegations in the claim, and the ranges of meaning which the assertions of fact are capable of bearing.

14. There is a need for "great care" or "exceptional caution" in order to ensure that a plaintiff is not improperly deprived of his opportunity to pursue litigation in the ordinary way: Spencer v Commonwealth of Australia (2010) 241 CLR 118; [2010] HCA 28 at [24] (French CJ and Gummow J); [55] (Hayne, Crennan, Kiefel and Bell JJ). Other aspects derived from this case were summarised by Beazley P in O'Brien v Bank of Western Australia Ltd [2013] NSWCA 71 at [3]:

"The High Court decision in Spencer v The Commonwealth [2010] HCA 28; 241 CLR 118 was concerned with s 31A(2) of the Federal Court Act 1976 (Cth) but the following principles stated in it are of general application:

(a) On a summary judgment application, the real issue is whether there is an underlying cause of action or defence, not simply whether one is pleaded (at [23]).

(b) The critical question can be expressed as whether there is more than a "fanciful" prospect of success (at [25]) per French CJ and Gummow J) or whether the outcome is so certain that it would be an abuse of the process of the Court to allow the action to go forward (at [54] in the judgment of the plurality). Demonstration of the outcome of the litigation is required, not an assessment of the prospect of its success (ibid).

(c) Powers to summarily terminate proceedings must be exercised with exceptional caution (ibid at [55]; see also French CJ and Gummow J at [24])."

15. As to pleadings generally, a number of propositions relevant to the present matter were helpfully set out in the defendants' written submissions. Reference will be confined to those which appear most pertinent.

16. Johnson J observed in McGuirk v The University of NSW [2009] NSWSC 1424 at [24] that "[p]roper pleading is of fundamental importance in assisting courts to achieve the overriding purpose of facilitating the just, quick and cheap resolution of the real issues in proceedings".

17. There must be sufficient particularity to enable any eventual trial to be conducted fairly to all parties. Vague allegations on significant matters may conceal claims which are merely speculative: Clarke v State of New South Wales (No 4) [2015] NSWSC 1054 at [39] (Garling J).

18. If allegations are made at such a level of generality that the defendant does not know in advance the case it has to meet, the pleading will be embarrassing. The appropriate remedy is to strike out rather than to order the provision of particulars, as it is not the function of particulars to take the place of the necessary averments in a pleading: McGuirk v University of NSW at [33]

19. A pleading will be embarrassing where it is "unintelligible, ambiguous, too vague or too general, so as to embarrass the opposite party who does not know what is alleged against him": Golden v Littleproud [2019] NSWSC 120 (Harrison AsJ). See also the more expansive description of ”embarrassment" in Shelton v National Roads and Motorists Association Ltd [2004] FCA 1393 (Tamberlin J).

Misfeasance in public office claim

Principles in relation to the tort of misfeasance in public office

20. In the joint judgment in Sanders v Snell (1998) 196 CLR 329; [1998] HCA 64 at [37], the tort of misfeasance in public office was described as being concerned with misuse of public power. It is designed to provide redress for acts done by public officers in the abuse or misuse of powers conferred on them for the purpose of their public duties; the rationale for the tort being that executive and administrative power may be exercised only for the public good, and not for ulterior or improper purposes: Obeid v Lockley [2018] NSWCA 71; (2018) 355 ALR 615 at [100], [113] (Bathurst CJ).

21. In Kazal v Independent Commission Against Corruption [2019] NSWSC 556, N Adams J set out the legal principles relevant to a claim for damages for the tort of misfeasance in public office by referring to the judgment of Hammerschlag J in Edward Moses Obeid Snr v David Andrew Ipp [2016] NSWSC 1376; (2016) 338 ALR 234. Hammerschlag J described the tort (at [235]-[236]) in the following way:

"Misfeasance in public office is an intentional tort, committed when damage is suffered as a result of an act done by a public officer in excess of authority, with the intention of causing harm to a plaintiff, or which the officer knows, or ought to know is beyond power, and which involves a foreseeable risk of harm. The mental element in the tort is satisfied when the public officer engages in the impugned conduct with the intention of inflicting injury, or with the knowledge that there is no power to engage in that conduct and it is calculated to produce injury, or where the officer acts with reckless indifference as to the existence of power to support the impugned conduct: Northern Territory v Mengel (1995) 185 CLR 307 (“Mengel”) at 345–348 (Mason CJ, Dawson, Toohey, Gaudron and McHugh JJ), 356–360 (Brennan J) and 370–371 (Deane J).

The essence of the tort is bad faith in the exercise of public powers: Three Rivers District Council v Governor and Company of the Bank of England (No 3) [2003] 2 AC 1 at 137 (Auld LJ citing Steyn LJ in Elguzouli-Daf v Commissioner of Police of the Metropolis [1995] QB 335 at 347B)."

22. The elements of the tort were described in Northern Territory of Australia v Mengel (1995) 185 CLR 307; [1995] HCA 65 at 370 as being: (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.

23. In that case, in the joint judgment of Mason CJ, Dawson, Toohey, Gaudron and McHugh J at 345, the tort was described as being "a deliberate tort in the sense that there is no liability unless there is an intention to cause harm or the officer concerned knowingly acts in excess of his or her power".

24. One of the issues for determination in Obeid v Lockley was whether the two investigators with the Independent Commission Against Corruption who executed a search warrant were "public officers". In consideration of this issue, Bathurst CJ quoted (at [91]) from the judgment of Spigelman CJ in Leerdam v Noori (2009) 227 FLR 210; [2009] NSWCA 90 at [3]-[7] which included the following as to the importance of identifying the power that the asserted "public officer" was exercising (or not):

"[6] … The identification of a power to act, which has or has not been exercised, is a necessary step in determining whether the conduct complained of occurred in purported performance of the functions of a public office. The relevant consideration is the link.

[7] As Lord Bridge put it in Calveley v Chief Constable of Merseyside [1989] AC 1228 at 1240:

‘ … the tort of misfeasance in public office … must … involve an act done in the exercise or purported exercise by the police officer of some power or authority with which he is clothed by virtue of the office he holds …’”

25. In Grass v Slattery [2018] FCA 1719 at [158], Bromwich J considered the authorities relevant to the element of the tort that the tortfeasor be the holder of a "public office":

"An essential element of the tort is that the alleged tortfeasor must be the holder of a public office. In this context, the concept of an “office” connotes an official position to which continuing functions or duties of a public nature are assigned: Leerdam v Noori [2009] NSWCA 90; 227 FLR 210 per Spigelman CJ at [16]. There is no authoritative statement of a test for determining what constitutes a public office for the purposes of the tort, and in many cases the answer will be obvious. It is essential, however, to identify a relevant power attached to the public office: Canon v Tahche [2002] VSCA 84; 5 VR 317 at [28]; Leerdam at [6] per Spigelman CJ and at [48] per Allsop P. As Spigelman CJ observed in Leerdam at [6], the identification of a power to act, which has or has not been exercised, is a necessary step in determining whether the conduct complained of occurred in purported performance of the functions of a public office."

26. In the course of considering the element that the defendant must have engaged in conduct that involves the exercise, or purported exercise, of a public power or duty, Bromwich J said:

"[163] Not everything that a public officer does during the course of carrying out the functions of his or her office will amount to a relevant exercise of a public power or duty. The following authorities identified by the respondents indicate certain practical limitations on what constitutes the exercise of a public power:

(1)   in Leinenga at [75], Mullins J found that a council employee providing information to an applicant as to what was required to obtain final approval of construction works was not purporting to exercise any public power;

(2)   in Calveley at 1240C-F, the House of Lords found that it did not involve any exercise or purported exercise of public power for a police officer to make an allegedly inaccurate report to the deputy chief constable, that report having resulted in the suspension of another officer (but that if the deputy chief constable had acted maliciously when he suspended the officer, that would have been capable of constituting the tort); and

(3)   in Emanuele v Hedley (1998) 179 FCR 290 at [34], the Full Court of this Court found that the making of an internal report by an official to his superior officers did not involve the exercise or purported exercise of a power or authority of his public office – “[t]hey were simply the actions of an employee reporting an alleged event to superior officers”.

[164] In Nyoni, North and Rares JJ noted at [112] that in cases such as Calveley and Emanuele, the principle appears to be that:

... the action of making or furnishing internal communications or reports by employees to superiors within a governmental institution may not amount to an act done in the exercise of the author’s public office. That is, such an act, whatever may be its ultimate influence or impact on those who are the superiors of the actor, does not have an immediate or direct consequence on the person who is, or in due course comes to be, injured by it. ... "

27. The defendants submitted that the facts in Grass v Slattery were illustrative of the need to carefully delimit the conduct of public servants which is, and is not, capable of giving rise to misfeasance. Mr and Ms Grass brought a claim for misfeasance in public office against seven Commonwealth public servants employed by the Department of Immigration and Border Protection. The claim related to the cancellation of Ms Grass' approval for citizenship on the basis of a finding that she had provided false and misleading information. The issues, and the findings of Bromwich J, included the following.

1. One aspect of the claim concerned Ms Slattery's conduct in making an entry in the departmental electronic record-keeping system that had the effect of delaying Ms Grass from being allocated to a citizenship ceremony while Ms Slattery investigated her case. It was contended that Ms Slattery had no lawful authority for making the entry and she knowingly acted contrary to the Australian Citizenship Act 2007 (Cth). His Honour found that there was no exercise or purported exercise of the formal delay power under the relevant statutory provision, or exercise of a power distinct from that provision. He said it followed that there was no use, let alone misuse, of a public power ([191]).

1. Ms Slattery made another entry on the departmental record-keeping system that recorded a cancellation of Ms Grass' application for citizenship. It was contended that this amounted to a decision made by Ms Slattery under s 25 of the Australian Citizenship Act. Bromwich J did not accept that characterisation. The mere fact of making the entry in the record-keeping system was not an exercise or purported exercise of public power ([198]).

2. Another aspect of the claim of misfeasance was an assertion that Ms Slattery directed other departmental staff to lie to the applicants about the delay in Ms Grass' citizenship ceremony to conceal the fact of an investigation into her citizenship approval. Bromwich J determined that this conduct did not involve any exercise or purported exercise of a public power or duty; it was no more than the communication of information, whether accurate, inaccurate or misleading ([208](1)).

3. Another public servant sent an email to another public servant which was contended to contain a false assertion of dishonesty on the part of Ms Grass. Bromwich J characterised it as no more than a comment exchanged in internal email correspondence with no evidence it was ever taken into account by any person exercising any public power in relation to Ms Grass. He was not satisfied that it constituted conduct involving the exercise or purported exercise of public power for the purposes of the tort ([254]).

28. These examples are useful in the context of the present case because they illustrate the point made by the defendants that the plaintiff needs to establish more than just that Ms Diaconu was in the court room carrying out her role as case officer at the time that she conducted herself in the manner alleged in paragraphs 11 to 13 and 19 of the Statement of Claim (as to which, see below).

29. In Lock v Australian Securities and Investments Commission (2016) 248 FCR 547; [2016] FCA 31 at [124], Gleeson J cited Federal Commissioner of Taxation v Futuris Corporation Ltd (2008) 237 CLR 146; [2008] HCA 32 at [60] for the proposition that "allegations that statutory powers have been exercised corruptly or with deliberate disregard to the scope of those powers are not lightly to be made or upheld". She then quoted Mullins J in Leinenga v Logan City Council [2006] QSC 294 at [64] having stated:

"… misfeasance in public office … is a very serious allegation to be made against a person who holds public office. It cannot be made in a broad brush way. It requires particularity in setting out the facts that can, if proven, establish the cause of action."

30. Although Gleeson J prefaced the next proposition to which she referred (at [126]) by relating it to fraud or dishonesty, the proposition is apposite generally to the need for particularity in pleadings in relation to the tort:

"As for fraud or dishonesty, the tort of misfeasance in public office must be distinctly alleged and sufficiently particularised, and it is not sufficiently particularised if the facts pleaded are consistent with innocence or honest incompetence: [citations omitted]. It is not sufficient to allege unlawful conduct: it is necessary to plead the primary facts that will be relied upon to justify any inference of unlawfulness." (Citations omitted)

The pleadings in the present case

31. A number of asserted deficiencies in the misfeasance in public office claim are identified in the Defence. Examples include that there is a failure to identify any public power or duty that Ms Diaconu was allegedly or purportedly exercising when conducting herself within the court room in the manner alleged. It is contended that there is a failure to identify the foreign purpose she is alleged to have been motivated by when conducting herself in the manner alleged. It is contended that there is a failure to identify the facts, matters, or circumstances pertaining to her alleged intention of harming the plaintiff, or pertaining to her knowing that the alleged conduct was likely to harm the plaintiff, or pertaining to her being recklessly indifferent to harm that was likely to ensue.

32. Although the defendants contend in the Defence that there are a number of deficiencies in the pleaded claim for misfeasance in public office, their submissions on the present application were based upon the pleadings concerning two elements of the tort: a failure to identify any public power or duty, and a lack of any pleading of actual temporal loss causally linked to the first defendant's acts or omissions.

33. The pleadings in respect of the alleged behaviour of the first defendant are:

“11.   During the course of the plaintiff’s cross-examination, the first defendant, who was seated behind the prosecutor and in view of members of the jury:

(a)   On several occasions laughed and shook her head in response to answers given by the plaintiff to the prosecutor;

(b)   On several occasions threw her head back, gestured as if she were laughing and when so gesturing covered her mouth; and

(c)   On several occasions rolled her eyes and grinned in response to answers given by the plaintiff to the prosecutor’s questions.

12.   Further, when counsel for the plaintiff provided an opening of the plaintiff’s defence to the jury the first defendant, in view of members of the jury, shook her head from side to side as if to indicate her disagreement with what was being said by counsel for the plaintiff.

13.   Further, on several occasions during the trial the first defendant made eye contact with members of the jury and smiled.”

34. It is then pleaded (in par 14) that by conducting herself in this manner, Ms Diaconu was:

" … motivated by a purpose foreign to that for which her powers and duties had been bestowed and the alleged conduct was undertaken by her with the intention of harming the plaintiff."

35. In the alternative, it is pleaded (in par 15) that the alleged conduct was undertaken with Ms Diaconu "knowing that the conduct was beyond power and likely to harm the plaintiff".

36. Further in the alternative, it is pleaded (in par 16) that the alleged conduct was carried out by Ms Diaconu "with the intention of harming the plaintiff or with reckless indifference to the harm that was likely to ensue".

37. The judge at the first trial was asked to discharge the jury by reason of the asserted misbehaviour of Ms Diaconu. He accepted that there had been misbehaviour, but resolved to deal with the issue by way of directions to the jury rather than discharging them. The plaintiff pleads the following in relation to his Honour's judgment:

“19.   In the course of his written reasons refusing the plaintiff’s application for a discharge of the jury, Zahra DCJ found that the first defendant:

(a)   Had engaged in improper conduct in that she responded to answers given by the plaintiff in cross-examination and that in doing so she intended to convey an opinion to jurors about the veracity of the plaintiff’s evidence;

(b)   The first defendant conveyed her opinion about the veracity of the plaintiff’s evidence by shaking her head, smiling, grinning and rolling her eyes;

(c)   That in engaging in the conduct referred to at (a) and (b) above, the first defendant intended to influence the jury in the assessment of the plaintiff’s evidence;

(d)   The first defendant attempted to influence the jury by engaging jurors by her facial expression as they entered to court room.”

38. The concluding pleading as to the commission of the tort is in par 20:

“20.   By reason of the conduct of the first defendant referred to in paragraphs 11 to 13 and 19, and by reason of the matters pleaded in paragraphs 14 to 16, the first defendant committed the tort of misfeasance in public office.”

39. In the AGS letter dated 16 August 2018, the first request for particulars, questions were asked in relation to paragraph 14 and 15 of the Statement of Claim as to the powers and duties allegedly being invoked or exercised by the first defendant, Ms Diaconu, when the alleged conduct occurred. The O'Brien reply by letter dated 10 October 2018 was to say in relation to both paragraph [14] and [15]:

"The powers and duties inherent in the office held by the first defendant, as pleaded at paragraph 4 of the Statement of Claim."

40. Paragraph 4 pleaded:

"At all material times, the first defendant was the officer in charge of an investigation against the plaintiff for alleged offences under the [relevant legislation]."

41. The defendants point out, correctly, that this does not provide any information as to the "powers and duties" being invoked or exercised by Ms Diaconu at the relevant time at all. (And in any event, Ms Diaconu was a "case officer"; the term "officer in charge" not in use by the Australia Federal Police.)

42. In the second request for particulars (letter dated 31 October 2018), the AGS carefully explained how and why the O'Brien response to the first request was deficient. It proceeded to ask with considerable specificity for particulars as to paragraphs [14]-[16] of the Statement of Claim; for example with an overarching request:

"Please provide particulars of the specific public powers or public duties inherent in the public office held by the first defendant that the plaintiff alleges were being invoked or exercised by the first defendant by the conduct pleaded in paragraphs 13-14 and 19 of the Statement of Claim."

43. The O'Brien reply by letter dated 4 January 2019 was not helpful. In relation to the request just quoted, it responded:

"Paragraph 4 of the Statement of Claim clearly pleads that the First Defendant was the Officer in Charge in respect of the investigation of the criminal matters as alleged against the Plaintiff. Further, the Plaintiff says the First Defendant was a 'Prosecutor' for the purposes of the tort of malicious prosecution.

The First Defendant's role as Officer in Charge included being present in Court to manage prosecution witnesses, continue investigation of the matters alleged against the Plaintiff, provide ongoing disclosure and consultation with the CDPP."

Consideration

44. The plaintiff's responses to the two requests for particulars by the defendants fail to articulate a public power that was exercised, or purportedly exercised, by Ms Diaconu in conducting herself in the manner alleged. The essence of the tort described by Hammerschlag J in Edward Moses Obeid Snr v David Andrew Ipp at [236] is conduct which amounts to bad faith in the exercise of public powers and this has not been pleaded.

45. The plaintiff sought to go further in his written submissions in response to the present application. The assertion now is that Ms Diaconu was fulfilling a function of the Australian Federal Police of providing "police services" in relation to laws of the Commonwealth: s 8(1)(b)(i) of the Australian Federal Police Act 1979 (Cth). "Police services" is defined in s 4(1) to include "prevention of crime". The plaintiff submitted that prevention of crime involves investigating criminal behaviour and prosecuting it. Prosecuting a person for criminal activity involves preparing a case against the person and presenting that case in court. So, it was submitted, Ms Diaconu was "intimately involved in the investigation of the plaintiff and the presentation of the case against him in court". [1]

    1. Plaintiff’s written submissions (PWS), par 25.

46. It was then contended that in carrying out her function of assisting the prosecution, Ms Diaconu was aware of the fact that she should not make any eye contact or communicate with the jury at all, or conduct herself in any way that would prejudice the accused. [2] So, it was submitted: [3]

"The alleged conduct on the part of the first defendant was intimately connected with the discharge of her functions under the Australian Federal Police Act. Her conduct was not simply that of a police officer sitting in the public gallery of a courtroom in the course of a criminal trial. …

In summary, it is arguable that the alleged misfeasance is connected to the first defendant's function to provide 'police services' in relation to, inter alia, the laws of the Commonwealth."

2. Ms Diaconu gave evidence to that effect on the voir dire on the jury discharge application (tcpt, 3 june 2013, p 1916(5)-(17)).

3. PWS, pars 28-29.

47. This submission was maintained at the hearing of the application, encapsulated in the following: [4]

"I submit, there is a real argument to be had in respect of whether or not what the first defendant is alleged to have done while sitting in the public gallery is conduct which is an incident of her public office, namely, the function of her public office which is to provide police services under the Australian Federal Police Act. It cannot be said, I submit, that argument is completely hopeless."

4. Tcpt, 7 June 2019, p 19(26).

48. There are a number of faults in the plaintiff's contention. The contention that Ms Diaconu was performing a prosecuting function as part of the provision of "police services" in preventing crime is not only tenuous but it ignores the fact that police officers are not authorised to prosecute crime; that is a function of the Commonwealth Director of Public Prosecutions. The contention that she was carrying out a role of managing prosecution witnesses, continuing investigations, or providing ongoing disclosure and consultation with prosecution lawyers fails in the absence of any identification of a connection between any of those factors with the alleged conduct.

49. Any person could have done what Ms Diaconu is alleged to have done, whether or not they were the repository of a public power or bound by a public duty. The asserted misbehaviour was, at most, temporally coincidental to, but had no direct or incidental relationship with, the performance of Ms Diaconu's powers and duties as a police officer.

50. The plaintiff's claim of misfeasance in public office as pleaded, and even as further particularised, is hopeless and is doomed to fail. For the reasons above, no reasonable cause of action is disclosed.

No actual temporal loss causally linked to the acts or omissions of the defendant

51. The other aspect of the plaintiff's case that was emphasised in the defendants' submissions is the element of the tort that the plaintiff suffered actual or "special" or "material" damage: Nyoni v Shire of Kellerberrin (2017) 248 FCR 311; [2017] FCAFC 59 at [98]. The written submissions of the plaintiff (at [30]) accepted that this was a necessary element and that it was necessary to establish a causal link between the claimed loss and the alleged conduct.

52. The relevant pleadings are:

“21.   The plaintiff has suffered loss and damage as a result of the first defendant’s misfeasance in public office.

Particulars of loss and damage

The plaintiff has suffered the following loss and damage:

(a)   Mental distress whilst giving evidence during the first trial;

(b)   Embarrassment and humiliation whilst giving evidence during the first trial;

(c)   Loss of the opportunity to secure an acquittal in the first trial in respect of all or some of the charges on the indictment;

(d)   Further particulars of loss and damage may be provided in due course.

22.   The plaintiff also claims aggravated damages for the first defendant’s misfeasance in public office and in so claiming relies on the matters pleaded above and the following additional matters:

Particulars of aggravated damages

(a)   The first defendant’s conduct referred to in paragraphs 11 to 13 and 19 above occurred in open court, in view of the jury and members of the public, adding to the plaintiff’s distress, embarrassment and humiliation;

(b)   Some of the defendant’s conduct referred to in paragraph 11 to 13 and 19 above occurred when the plaintiff was giving evidence, which made the plaintiff’s task of giving evidence more onerous for the plaintiff than it otherwise would have been;

(c)   Further particulars may be provided in due course.

23.   The plaintiff also claims exemplary damages for the first defendant’s misfeasance in public office. In so claiming the plaintiff relies on the matters pleaded above and the following additional matters:

Particulars of exemplary damages

(a)   The first defendant’s conduct was designed to harm the plaintiff or was undertaken with reckless indifference to the harm that was likely to ensue;

(b)   The first defendant’s conduct was carried out in contumelious disregard of the plaintiff’s fundamental right to have a fair trial, uninfluenced by the first defendant’s conduct referred to in paragraphs 11 to 13 and 19;

(c)   Further particulars may be provided in due course.”

53. The plaintiff submitted that the particulars provided an express link between the alleged misfeasance and the loss and damage the plaintiff alleges he sustained. In relation to asserted distress, embarrassment, and humiliation, the link appears tenuous; but in relation to the asserted lost opportunity of acquittal, the link is not made at all. Having regard to the former, this may well be a matter for evidence and I would not uphold the application on this basis.

Malicious prosecution claim

54. This part of the plaintiff's claim concerns (directly) the first and second defendants.

Principles in relation to the tort of malicious prosecution

55. The joint judgment in A v State of New South Wales (2007) 230 CLR 500; [2007] HCA 10 set out the elements of the tort of malicious prosecution (at [1]):

(1)   proceedings of the kind to which the tort applies (generally, criminal proceedings) were initiated against the plaintiff by the defendant;

(2)   the proceedings terminated in favour of the plaintiff;

(3)   the defendant, in initiating or maintaining the proceedings acted maliciously; and

(4)   the defendant acted without reasonable and probable cause.

56. Proof of damage is a further requirement as malicious prosecution is an action on the case: State of New South Wales v Landini [2010] NSWCA 157 at [20] (Macfarlan JA, Tobias JA and Sackville AJA agreeing).

57. As to the first element (that proceedings were initiated against the plaintiff by the defendant), it is a requirement that "to incur liability, the defendant must play an active role in the conduct of the proceedings, as by 'instigating' or setting them in motion": A v New South Wales at [34]. This element may be satisfied by the maintenance, as distinct from the initiation, of a prosecution: State of New South Wales v Landini at [21], [52]-[58]; Sahade v Bischoff [2015] NSWCA 418 at [121].

58. The importance of properly identifying the prosecutor was explained in the judgment of Fullerton J in Bailey v Director General, Department of Natural Resources [2014] NSWSC 1012. After referring to A v State of New South Wales (2007) 230 CLR 500; [2007] HCA 10 at [36]-[38], her Honour said:

"[284] … What the Court did emphasise was that it is important to properly identify the prosecutor in proceedings brought to recover damages for the tort of malicious prosecution in order to ground and focus the critical enquiry into whether the plaintiff has proved that person (or, if more than one prosecutor, those people) acted maliciously and without reasonable and probable cause in initiating and maintaining the proceedings and, as the Court said at [38], in focusing attention upon those critical questions, whether those who "effectively set the proceedings in motion" acted tortiously."

59. Her Honour returned to that point in Wood v State of New South Wales [2018] NSWSC 1247 at [146]:

"Since the accountability imposed by the tort of malicious prosecution is only imposed on a person who plays an active role in the conduct of the proceedings by effectively instigating or setting them in motion (see A v NSW [37]-[38]), it is necessary in this case to identify who the prosecutor is (or who the prosecutors are if there be more than one) as a discrete issue."

60. Even where the State is alleged to be vicariously liable for the tort of a prosecutor in a public prosecution, it remains necessary to identify the individual who is alleged to have committed the tort: Clark v State of New South Wales [2016] NSWSC 808 at [59].

60. The second element (that the proceedings terminated in favour of the plaintiff) is straightforward. The plaintiff in the present case relies upon his acquittal of the three Criminal Code offences.

61. In relation to the third element (that the defendant acted maliciously), the joint judgment in A v New South Wales explained (at [91]):

"What is clear is that, to constitute malice, the dominant purpose of the prosecutor must be a purpose other than the proper invocation of the criminal law – an 'illegitimate or oblique motive'. That improper purpose must be the sole or dominant purpose actuating the prosecutor." (Emphasis in original. Citations omitted.)

63. In relation to the fourth element (that the defendant acted without reasonable and probable cause), it was explained in A v New South Wales (at [56]) that:

"Even if a prosecutor is shown to have initiated or maintained a prosecution maliciously (for example, because of animus towards the person accused) and the prosecution fails, an action for malicious prosecution should not lie where the material before the prosecutor at the time of initiating or maintaining the charge both persuaded the prosecutor that laying a charge was proper, and would have been objectively assessed as warranting the laying of a charge."

64. The joint judgment continues (at [57]-[59]) by making three points. First, an acquittal on its own does not entitle a plaintiff to a remedy against the prosecutor; the fact that the prosecution ended in the plaintiff's favour is merely a starting point. Secondly, an inquiry about reasonable and proper cause involves consideration of the material available to the prosecutor and assessing (a) what the prosecutor made of it and (b) what should the prosecutor have made of it. Thirdly, asking whether a prosecution was commenced or maintained without reasonable and probable cause directs attention to the state of affairs as at the time the prosecution was commenced, or when the prosecutor is alleged to have maintained the prosecution, including what material was available at the relevant time.

Pleading and particularisation of a claim of malicious prosecution

65. As to the need for particularisation when pleading a claim in respect of malicious prosecution, the defendants submitted that what was said by Gleeson J in Lock v Australian Securities and Investments Commission in relation to pleading the tort of misfeasance in public office (see above at [29]-[30]) was equally apt.

66. The Statement of Claim (pars 24 to 29) pleads the facts pertaining to the history of the proceedings culminating in the jury's verdicts in the second trial. It is then pleaded:

“30.   The proceedings in respect of counts 1, 2 and 3 on the said indictment were instituted and maintained without reasonable and probable cause.

Particulars of absence of reasonable and probable cause

(a)   The first defendant did not honestly believe in the case that was instituted against the plaintiff in respect of the charges referred to in counts 1, 2 and 3 on the said indictment; or

(b)   Alternatively, if it is found that the first defendant did honestly believe in the case against the plaintiff in respect of the said charges, she did not have a sufficient basis for such an honest belief because, without being limited to the following:

(i)   On or about 1 February 2012 the first defendant interviewed several workers at the said brothel and each of the workers provided information confirming that they were not working in circumstances constituting sexual servitude, nor were they being exploited;

(ii)   The first defendant failed to properly investigate the allegations of [redacted], that they were being exploited and/or working at the said brothel in circumstances constituting sexual servitude;

(iii)   Further particulars may be provided in due course.”

67. It is then pleaded in relation to both Ms Diaconu and the Commonwealth Director of Public Prosecutions:

“31.   The first and second defendants maintained the proceedings in respect of the charges referred to in counts 1, 2 and 3 of the indictment without reasonable and probable cause because, without being limited to the following:

(a)   After the first trial, the first and second defendants did not honestly believe in the case that was brought against the plaintiff;

(b)   Alternatively, in the event that it is found that the first and second defendants honestly believed in the case that was brought against the plaintiff, neither the first or second defendant had a sufficient basis for such a belief because:

(i)   On or about 1 February 2012 the first defendant interviewed several workers at the said brothel and each of the workers provided information confirming that they were not working in circumstances constituting sexual servitude, nor were they being exploited;

(ii)   The cross-examination of [redacted] revealed that each of these witnesses totally lacked credibility and reliability and were in fact dishonest;

(iii)   Zahra DCJ at the conclusion of the first trial notified the second defendant of his view that the said witnesses lacked credibility and reliability and were in fact dishonest;

(iv)   During the trial in which the plaintiff was found not guilty in relation to all counts on the indictment, the cross-examination of [redacted] confirmed that these witnesses totally lacked credibility and reliability and were in fact dishonest;

(v)   Before the trial which commenced on 7 October 2014, the first and second defendants were on notice that [redacted] totally lacked credibility and reliability and were dishonest witnesses;

(vi)   Further particulars may be provided in due course.”

68. The pleading as to malice follows:

“32.   The said criminal proceedings against the plaintiff were instituted and/or maintained maliciously.

Particulars of malice

(a)   The proceedings against the plaintiff were instituted for a purpose other than the proper invocation of the criminal law, namely personal animus the first defendant had against the plaintiff based on the plaintiff being the proprietor of a lawful brothel;

(b)   After the first trial, the first and second defendants persisted in prosecuting the plaintiff to justify the public resources that had been expended in prosecuting the plaintiff;

(c)   Further particulars may be provided in due course.”

Further particulars sought

69. The defendants sought further and better particulars in relation to this aspect of the plaintiff's claim.

70. In the response by O'Brien in its letter dated 10 October 2018, it was clarified that "the said indictment" in paragraph 30 and "the indictment" in paragraph 31 were references to the indictment upon which the plaintiff was arraigned at the second trial.

71. The AGS pointed out in its letter dated 31 October 2018 that the tort of malicious prosecution is a personal tort and must be directed towards an individual, not a position or public office. It was noted that the second defendant was the Commonwealth Director of Public Prosecutions, and the person who held that office at the time the proceedings were commenced was not the holder of the office at the times material to the claim, and had no role in any of the events alleged. The response by O'Brien in its letter dated 4 January 2019 was simply to inquire "whether the Commonwealth intends to accept vicarious liability for the actions of the members of the CDPP".

72. It was also pointed out that the Statement of Claim failed to identify how the criminal proceedings were instituted or maintained by one or both of the first or second defendants, and that it failed to particularise how the individual who is said to have instituted and/or maintained the proceedings held the requisite malicious intent. The response by O'Brien in relation to both of these matters was simply, "As pleaded".

73. Specifically in relation to the claim against the second defendant, the Commonwealth Director of Public Prosecutions, it was pointed out that the pleadings sought to aggregate the knowledge of various Commonwealth officers and attribute or impute that combined knowledge to the second defendant which was not permissible in the case of a personal tort. There was no response to this.

74. Particulars were sought in relation to some specific pleadings, including those in paragraphs 30 to 32, but little or nothing (aside from "as pleaded") was forthcoming in reply.

Consideration

75. The first point raised by the defendants is the temporal scope of the claim. The plaintiff was unequivocal in the O'Brien letter dated 10 October 2018 that the "indictment" referred to in paragraphs 30 and 31 was that dated 7 October 2014, being that upon which the plaintiff was arraigned at the second trial. This was interpreted to mean that the malicious prosecution claim was confined to the second trial and that no part of the claim was concerned with the laying of the charges in the Court Attendance Notices in 2012 or with the proceedings at the first trial.

76. It seems that the defendants have misread parts of paragraphs 30 and 31 of the Statement of Claim. It was necessary for the words "counts 1, 2 and 3 on the said indictment" and "counts 1, 2 and 3 of the indictment" to be used because it was necessary to be clear which charges were the subject of the malicious prosecution claim. It was necessary to distinguish the charges in respect of the Criminal Code offences from the Migration Act charges which were not the subject of the claim. However, the Statement of Claim pleads the facts commencing with the laying of charges in February 2012 and concluding with the return of the jury's verdicts at the end of the second trial.

77. It is understandable that the defendants sought to clarify what was meant by "the said indictment" and "the indictment" in paragraphs 30 and 31 but it is also understandable that the plaintiff replied by confirming it was the indictment at the second trial. It is not the plaintiff's fault that the reply has been misconstrued.

78. The plaintiff's written submissions in opposing the present application advised that the defendant's understanding that the malicious prosecution claim was confined to the proceedings at the second trial was mistaken. [5] This was confirmed at the hearing of the application, whereby the plaintiff took issue with the defendants dividing up the prosecution into different proceedings. [6] I accept the plaintiff's contention that the malicious prosecution claim extends to events commencing with the institution of the proceedings in February 2012. Confining the claim solely to events relating to the second trial is incorrect.

    5. PWS, par 40.

    6. Tcpt, 7 June 2019, p 203(35).

79. It was contended by the defendants that the second element of the tort (proceedings terminating in favour of the plaintiff) cannot be made out in respect of the first trial. [7] The "fundamental problem" was said to be that they did not terminate in favour of the plaintiff; they terminated because of the jury's inability to agree upon any verdicts. That argument also falls away when the broader scope of the claim is understood. What also falls away is the contention that the first defendant, Ms Diaconu, had no involvement in the second trial and so, for that reason alone, could not be held liable in respect of it. [8]

    7. Tcpt, 7 June 2019, p 9(4). See also Defendants' Written Submissions (DWS), par 61.

    8. DWS, pars 62-66; tcpt, 7 June 2019, p 9(36).

80. Having said that, it was only in the course of submissions at the hearing that the plaintiff sought to provide a clearer enunciation of the temporal aspects of his case. He accepted that no case could be made against the first defendant in respect of the second trial. He accepted that Ms Diaconu had been removed as case officer following the events at the first trial. The case concerning her was confined to her instigation of the proceedings and maintenance of them up until that point. [9] In relation to the second defendant (and subject to a matter which I will return to), the plaintiff confined the case to events following the first trial. [10] In short, the discrediting of the complainants’ evidence at the first trial meant that there was no basis for a belief in the case proceeding to a second trial.

    9. Tcpt, 7 June 2019, p 25(15).

    10. Tcpt, 7 June 2019, p 23(45).

81. Returning to the case against the first defendant, the pleadings fail to assert anything relevant to her maintenance of the prosecution up to the time of the first trial. The pleaded facts make only a meagre attempt at asserting her involvement in institution of the proceedings; i.e. she "caused the plaintiff to be charged". [11] Taking the plaintiff's case at its highest, and thereby assuming there is something sufficient pleaded for her involvement at that stage, there is nothing further pleaded as to her having maintained the proceedings over the 16 months until the first trial concluded. What is pleaded is that very soon after the Court Attendance Notices were issued the proceedings were taken over by the Commonwealth Director of Public Prosecutions who had carriage of them through until finalisation. There is no pleading of any facts which could, if accepted, make good an assertion that she had any prosecutorial input. By way of example, there is nothing alleged in respect of her having any decision-making responsibility in relation to the prosecution, such as whether it should proceed or be terminated; what evidence and what charges it might be based upon; or what case theory might be pursued.

    11. Statement of Claim, par 5.

82. The problem with the pleadings in relation to the second defendant is that they do not aver that any individual occupant of the position of "Director of Public Prosecutions for the Commonwealth of Australia", or any individual employee, maliciously prosecuted the plaintiff. There is nothing pleaded to the effect that Mr Bromwich SC (as he then was), the occupant of the position at all material times, prosecuted the plaintiff maliciously and without reasonable and probable cause. Moreover, it would be impossible to contend that the occupant of the position at the time these proceedings were commenced against the second defendant, Ms McNaughton SC, had any involvement whatsoever.

83. Pertinent to the case concerning the second defendant, the defendants listed in their written submissions matters that are absent from the pleadings in the plaintiff's Statement of Claim, including: [12]

a)   Any individual who is said to have maintained the prosecution of the second trial.

b)   The conduct of any such individual in maintaining the prosecution at the second trial.

c)   Facts, matters and circumstances from which it may be inferred that any such individual maintained the prosecution at the second trial maliciously and in the absence of reasonable and probably cause.

12. DWS, par 73.

84. As the authorities make clear (e.g. A v New South Wales at [38]-[39], [58], [80] and [91]), there are both objective and subjective aspects to the questions of whether a prosecutor had reasonable and probable cause and had a dominant purpose other than the proper invocation of the criminal law. Nomination of an office, but not a natural person, is inapt. In the circumstances of this case, it masks the likely fact that the plaintiff is unable to identify any person to whom those two key elements of the tort may be imputed.

85. The defendants further contended that the plaintiff has failed to comply with the requirement of UCPR r 15.4 that a pleading alleging a condition of mind, here malice, must give particulars of the facts on which the party pleading relies. [13] There is, however, particularisation of "malice" in paragraph 32 of the Statement of Claim. It alleges that the second defendant (and the first defendant) persisted in prosecuting the plaintiff after the first trial "to justify the public resources that had been expended in prosecuting the plaintiff". This just underlines the fact that such a state of mind can be imputed to a person, but not the title of an office.

    13. DWS, par 71.

86. The first time in the proceedings that the plaintiff identified individuals who had involvement in the prosecution was in written submissions. [14] Reference was made to Ms Jody Nunn, a solicitor within the office of the Commonwealth Director of Public Prosecutions who was described in the plaintiff's oral submissions as the "instructing solicitor". [15] Mr Bromwich SC, the then Director, was nominated as having signed an indictment for the purpose of proceeding to a second trial. There was also mention of Mr Lincoln Crowley of counsel [16] who was the Crown Prosecutor at the first trial, and who was junior to Mr Lionel Robberds QC, the Crown Prosecutor at the second trial.

    14. PWS, par 48.

    15. Tcpt, 7 June 2019, p 23(5).

    16. Now of Senior Counsel.

87. As to who the defendant should be in relation to that part of the malicious prosecution claim that concerns the second trial, it was submitted at the hearing that "it is the Commonwealth who is variously ([sic] – vicariously) liable for the actions of these particular individuals". [17] It was asserted that malice was attributable to each and every one of the four who are now nominated. [18] In the written submissions, however, the assertion was confined to Ms Nunn, Mr Crowley and Mr Robberds.

    17. Tcpt, 7 June 2019, p 23(11).

    18. Tcpt 7 June 2019, p 23(25).

88. The plaintiff submitted that this was a case in which the absence of reasonable and probable cause may be evidence of malice: A v New South Wales at [40]. [19] It was asserted that "malice on the part of Ms Nunn, Mr Crowley and Mr Robberds QC can be inferred from an absence of reasonable and probable cause". It was submitted that the asserted absence of reasonable and probable cause could base an inference that "the purpose of persisting with the hopeless case against the plaintiff on the sexual servitude charges was simply to gain a conviction and to justify the use of the public purse in prosecuting the plaintiff, as opposed to properly invoking the criminal law". [20]

    19. PWS, par 48.

    20. PWS, par 48.

89. It is trite to observe that such bald statements in particulars or in submissions opposing a summary dismissal application is no substitute for pleadings. But in any event, it is appropriate to look at this basis upon which the plaintiff contends an absence of reasonable and probable cause.

No factual basis for absence of reasonable and probable cause

90. The defendants submitted that the facts alleged in the Statement of Claim, taken at their highest, do not provide any foundation for the plaintiff to establish an absence of reasonable and probable cause. [21]

    21. DWS, pars 74-80.

91. The first matter (and with the clarification now made by the plaintiff that this is concerned only with the first defendant) is that on or about 1 February 2012, Ms Diaconu interviewed several workers at the brothel in question and each provided information confirming they were not working in circumstances constituting sexual servitude, nor were they being exploited. This was irrelevant to the working conditions of the complainant sex workers and to the bona fides of a prosecution for offences concerning them. The charges in the indictment at the first trial concerned alleged events between about 1 March 2011 and 30 November 2011. The indictment at the second trial concerned alleged events between about 1 January 2011 and 31 October 2011. None of the charges concerned the sex workers interviewed on 1 February 2012 and their working conditions.

92. The second matter is that "the cross-examination of [the three complainants the subject of the first trial] revealed that each of these witnesses totally lacked credibility and reliability and were in fact dishonest". There is force in the submission that such assertions are "conclusory, vague and fail to logically connect any concrete fact to the claimed absence of reasonable and probable cause". [22]

    22. DWS, par 77.

93. The third matter is that at the conclusion of the first trial, the trial judge made comments indicating "his view that the [complainant] witnesses lacked credibility and reliability and were in fact dishonest". [23] This does not necessarily mean his Honour's assessment demanded acceptance by a prosecutor, particularly in light of the fact that the jury did not acquit. There is also the fact that the judge made it clear that in making the comments, he was aware that the issue was entirely one for the Commonwealth Director of Public Prosecutions as opposed to himself, he not having been a tribunal of fact.

    23. Statement of Claim, par 31(b)(iii).

90. The fact that the remarks of Zahra SC DCJ were drawn to the Commonwealth Director's attention in a no-bill application does not assist the plaintiff. The defendants submitted that the complainants' credibility was a matter about which minds could differ. At the second trial, apparently, the jury took considerable time before returning not guilty verdicts in respect of the Criminal Code offences. Also relevant to this are certain statements made by the judge who presided at the second trial, who commented in his sentencing remarks that the prosecution case was not "solely dependent upon the credibility of the brothel workers", and that the prosecutor "put a case based substantially on circumstances which did not rely particularly upon the workers". [24] In any event, a trial judge’s observations about the credibility of the prosecution’s witnesses after a trial in which the jury did not unanimously convict or acquit – whilst putting a prosecutor on notice that the case may have difficulties – says little, if anything, about the state of mind of the prosecutor in bringing the matter back for further trial when the prosecutor undoubtedly had available to consider all of the evidence available to him/her.

    24. Exh 1: Remarks on Sentence, Frearson SC DCJ, 27 March 2015, p 6.

91. Finally, the impression that the jury had of the complainants in the second trial could not temporally relate to the allegedly malicious institution and maintenance of the proceedings up until the time they gave evidence at the second trial. Of course, it does not follow that because there was an acquittal, there was an absence of reasonable and probable cause.

No factual basis for malice

96. The only "fact" particularised in the Statement of Claim for the assertion of malice against the first and second defendants in maintaining the prosecution after the first trial is that they "persisted in prosecuting the plaintiff to justify the public resources that had been expended in prosecuting the plaintiff". [25]

    25. Statement of Claim, par 32(b).

97. Of course, this allegation in respect of the first defendant has now been abandoned. In relation to the second defendant, no individual in the Director's office is identified in the pleadings as being actuated by such a consideration. Putting that point aside, the absence of a factual basis for this assertion, in my view, is understandable because it is inherently illogical. How the maintenance of a baseless prosecution by the expenditure of further public resources could justify that which had already been expended is not at all apparent. The joint judgment in A v New South Wales (at [93]) included two observations about the element of malice, one being that proof was often a matter of inference. However, their Honours added, "it is proof that is required, not conjecture or suspicion". With the absence of a sensible factual basis for the inference for which the plaintiff contends, the pleaded malice in the present case has all the hallmarks of speculation.

98. The same applies to the contention now advanced in the plaintiff's submissions that it was Ms Nunn, Mr Crowley, and Mr Robberds QC (and in oral submissions, Mr Bromwich as well) who persisted with a hopeless case to gain a conviction in order to justify past expenditure. How such an assertion could ever be made good, particularly but not just in relation to, two members of the independent bar briefed to prosecute the matter is a mystery.

Re-pleading?

99. The defendants opposed a discretion being exercised to permit the plaintiff to re-plead the case for malicious prosecution. (I note that the plaintiff did not suggest that such a course should be taken.)

100. I am satisfied the plaintiff's case for malicious prosecution as pleaded is so replete with deficiencies – to the extent that no reasonable cause of action is disclosed – that there is no prospect of it succeeding. The plaintiff has had various deficiencies drawn to his attention, particularly with the AGS letter dated 31 October 2018, in which these issues were explained in careful detail. They have again been drawn to the plaintiff's attention in considerably more detail in the written submissions of the defendants, which were prepared and available more than two months ago.

101. The fact that the plaintiff has not taken any opportunity to date to reconsider and re-plead his case is a strong indication that he appreciates that doing so only exposes the fundamental flaws that render the claim for malicious prosecution futile. The prospect of a viable case being produced via re-pleading is no more than fanciful.

Conclusions

102. The plaintiff's case against the first defendant of misfeasance in public office is fundamentally flawed by the absence of anything alleged that could establish an essential element of the tort, that being that the first defendant did something in the exercise, or as an incident of the exercise, of a public power or duty.

103. The plaintiff's case against the first and second defendants of malicious prosecution is also fundamentally flawed by defects and deficiencies in pleadings, which it is apparent cannot be rectified by re-pleading.

104. It follows that there is no case against the third defendant.

105. In these circumstances, the plaintiff's Statement of Claim should be summarily dismissed on the basis that no reasonable causes of action are disclosed.

Orders

106. I make the following orders:

1. Pursuant to r 13.4(1) of the Uniform Civil Procedure Rules 2005 (NSW), the proceedings are summarily dismissed.

2.   The Plaintiff is to pay the Defendants’ costs of this application and of the proceedings.

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Endnotes

Amendments

04 July 2019 - Names redacted

Decision last updated: 04 July 2019