G, RE v Department of Correctional Services
[2017] SASC 96
•5 July 2017
SUPREME COURT OF SOUTH AUSTRALIA
(Civil: Civil)
G, RE v DEPARTMENT OF CORRECTIONAL SERVICES & ORS
[2017] SASC 96
Judgment of Judge Roder a Master of the Supreme Court
5 July 2017
PROCEDURE - MISCELLANEOUS PROCEDURAL MATTERS - VEXATIOUS LITIGANTS AND PROCEEDINGS
PROCEDURE - COURTS AND JUDGES GENERALLY - COURTS - DISMISSAL OF PROCEEDINGS FOR WANT OF PROSECUTION
PROCEDURE - SUPREME COURT PROCEDURE - SOUTH AUSTRALIA - PROCEDURE UNDER RULES OF COURT - SUMMARY JUDGMENT
This is a claim by the plaintiff for damages against the defendants for false imprisonment, negligence and defamation. The defendants made several interlocutory application seeking the disjoinder of one defendant and an order that the plaintiff’s claim be dismissed for want of prosecution and abuse of process. The first third defendants be disjoined. Application to dismiss or strike out proceedings refused.
Summary Procedure Act 1921 ; Criminal Law (Sentencing) Act 1988 ; Public Sector Act 2009 ; Public Corporations Act 1993 ; Crown Proceedings Act 1992 ; Correction Services Act 1982 , referred to.
Collins v Djunaedi (No 2) [2016] SASCFC 63; Groom v South Australia [2017] SASCFC 35; Myer Stores Ltd v Soo [1991] 2 VR 597; Trotter v South Australia Unreported, Zelling J, S3713; St Clair v Timtalla Pty Ltd (No 2) [2010] QSC 480; Northern Territory of Australia v Mengel (1995) 185 CLR 307; Deputy Commissioner of Taxation v Frangieh (No 3) [2017] NSWSC 252; State of South Australia v Lampard Trevorrow (2010) 106 SASR 331; General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125; Ceneavenue Pty Ltd v Martin (2008) 106 SASR 1; Davies v Minister for Urban Development and Planning (2011) 109 SASR 518; Proude v Visic (No 4) [2013] SASC 154; Spencer v Commonwealth of Australia (2010) 241 CLR 118, considered.
G, RE v DEPARTMENT OF CORRECTIONAL SERVICES & ORS
[2017] SASC 96
The plaintiff sues the Department of Correctional Services (“the Department”), the State of South Australia (“the State”) and Peter Severin (“Mr Severin”) for damages. The causes of action alleged are false imprisonment, negligence and defamation.
The proceedings came about in this way. The plaintiff was charged with an offence of aggravated assault. The matter came on in the Magistrates Court before Mr Baldino SM on 23 April 2009. His Honour remanded the plaintiff to appear again on 28 April 2009 at 10:00am.
A copy of the warrant of remand[1] is in evidence before me. I will not reproduce it in these reasons, because that would identify the plaintiff.[2] The form of warrant was prescribed by the Magistrates Court Criminal Rules 1992. It is Form 7. The form refers to ss 59, 103 and 112 of the Summary Procedure Act 1921 (“SPA”) and s 19(4) of the Criminal Law (Sentencing) Act 1988. There then appear five panels. The first panel contains detail of the registry of the Court, the file number, the type of document originating the charge and the complainant or informant. The second panel gives details of the defendant. The third panel gives detail of the charge. The fourth panel is as follows:
[1] FDN10A.
[2] As will become apparent later in these reasons, the plaintiff appears to apply for an order that records of the case not be published unless an alias is used for him.
Particulars of Remand
Court Remanded to
Sitting at
Date and Time Remanded to
Reasons for Remand
Correctional Institution
Date Warrant Issued
MAGISTRATES COURT OF SOUTH AUSTRALIA
ADELAIDE
28/4/2009 at 10:00 a.m.
FOR REPORT (Bail Report)?
GLENSIDE CAMPUS OF THE ROYAL ADELAIDE
HOSPITAL23/04/2009
The italicised words are hand written.
The fifth panel is in the following terms:
To the Sheriff, Commissioner of Police for the State of South Australia and each member of the Police Force for the said State, and to the Executive Director of the Department of Correctional Services.[3]
The Sheriff and the Commissioner of Police and members of the Police Force, are directed to take the defendant to the specified correctional institution. The Executive Director of the Department of Correctional Services, is directed to receive the defendant unless he/she has been bailed in the meantime, detain the defendant until the day and time specified. And on that day and at that time to have the defendant before the Court to which the defendant was remanded to be further dealt with according to law, unless some other order is made in the meantime.
[3] That is an earlier title of the position of Chief Executive of the Department.
The warrant was signed by a Justice of the Peace of the Magistrates Court.
It will be noted that the warrant states that the plaintiff was remanded to the Glenside Campus of the Royal Adelaide Hospital. Notwithstanding that, the plaintiff was in fact taken to, and kept in, the Adelaide Remand Centre (“the ARC”). The plaintiff says that as a result he has suffered very serious psychological harm.
In 2009 and 2010 the defendants made several interlocutory applications[4] seeking orders that:
· the actions against the Department and Mr Severin be “struck out”;
· the “claim” for unlawful imprisonment be dismissed; and
· the “claim” be dismissed on the basis that it is frivolous, vexatious and an abuse of process “and/or”[5] that no reasonable cause of action is disclosed.
[4] FDN3, FDN5 and FDN7.
[5] I wish to associate myself with the observations of Martin J in St Clair v Timtalla Pty Ltd (No 2) [2010] QSC 480 at [11]-[13]. While it is intelligible in the present circumstances, “and/or” is a device which should be avoided in pleadings.
For various reasons, argument on those applications was not heard and the action was put into the delay list. The applications were listed for argument before me on 27 April 2017. Also before me was FDN17, seeking dismissal of the action for want of prosecution. I heard argument on that day and at the request of the plaintiff adjourned for him to access the Court file. The argument was completed on 23 May 2017. I reserved my decision. The plaintiff represented himself in the argument. He was at a disadvantage on 27 April, not having – for good reasons – copies of the relevant documents. When the matter resumed on 23 May the plaintiff made well-reasoned, helpful, submissions.
By then the plaintiff had – as directed by me on 27 April – provided what was intended to be a proposed second statement of claim, pleading his claim at what he considered its highest. That document had been filed by the Registry. It is FDN20. The parties agreed that the status of the document (“proposed” as against “filed”) should not affect the outcome of the argument.
FDN20 may not comply with all of the rules of pleading. It is, nevertheless, easy to understand what the plaintiff’s case is. No objection was taken by the defendants to either Statement of Claim on any technical pleading point. I must mention that in paragraph 221 of FDN20 there is an allegation that Mr Severin is guilty of misfeasance in public office.
FDN20 contains an application for an order that records of the case not be published electronically unless an alias is used for the plaintiff. Given the nature of the damage alleged and matters that are said to have flowed from it, I consider that that is appropriate at least in respect of these reasons.[6] If any order is sought that the action should hereafter proceed in that way – or that the earlier records of the action should be amended – the plaintiff should apply for such order or orders by separate interlocutory application supported by appropriate affidavit evidence.
[6] Legal Profession Conduct Commissioner v Practitioner (No 2) [2017] SASC 93. See also, in respect of a risk of psychiatric harm, RN v Commonwealth of Australia (2014) 41 VR 699.
I first deal with the defendants’ application to dismiss the action for want of prosecution. The purpose of an action being in the delay list is that it not be prosecuted. It is always open to any party to apply to remove the action from that list so that it may be prosecuted. Now that the action has been removed from that list, it is being prosecuted. I refuse that application.
I next address the question of the appropriate defendant or defendants. Mr Severin was the Chief Executive of the Department. The defendants argue that he is not an appropriate party, pointing to s 74 of the Public Sector Act 2009 (“the PSA”). Section 74 provides:
74—Immunity relating to official powers or functions
(1) This section applies to—
(a) a public official; and
(b) a public sector employee; and
(c) a person to whom a function or power of a public sector agency, public sector employee or public official is delegated in accordance with an Act; and
(d) a person who is, in accordance with an Act, assisting a public sector employee or public official in the enforcement of the Act.
(2)Subject to this Act, no civil liability attaches to a person to whom this section applies for an act or omission in the exercise or purported exercise of official powers or functions.
(3)An action that would, but for subsection (2), lie against a person lies instead against the Crown, except in the case of a member of a body corporate or the governing body of a body corporate or a person employed or appointed by, or a delegate of, a body corporate, in which case it lies instead against the body corporate.
(4)This section does not prejudice rights of action of the Crown or a public sector agency in respect of an act or omission of a person not in good faith.
(5)This section does not apply to a person if section 22 or Schedule clause 11 of the Public Corporations Act 1993 applies to the person.
(6) In this section—
"public official" means a person appointed by the Governor or a public sector agency to an office (including to be a member of a body, whether incorporated or unincorporated).
In my view that argument is clearly correct. Any action in false imprisonment that might lie against Mr Severin lies instead against the State.
It is here that the plea in paragraph 221 of FDN20 is relevant. In Northern Territory of Australia v Mengel[7] the High Court acknowledged that “in important respects” the limits of the tort are undefined. There is no plea that Mr Severin was personally involved in the detention of the plaintiff at the ARC. Nor has there been any plea of personal knowledge or personal malice on the part of Mr Severin.
[7] (1995) 185 CLR 307 at [56]-[64].
It is not alleged that Mr Severin personally committed the acts in question. In those circumstances, there could only be vicarious liability.[8] For the reasons explained in Deputy Commissioner of Taxation v Frangieh (No 3)[9] and State ofSouth Australia v Lampard‑Trevorrow,[10] it seems to me that Mr Severin could not be vicariously liable. It appears that any vicarious liability could lie against the State only.
[8] Nyoni v Shire of Kellerberrin [2017] FCAFC 59.
[9] [2017] NSWSC 252.
[10] (2010) 106 SASR 331, 390.
Further, s 74 of the PSA would appear to apply.
In any event, it seems to me that it is unnecessary to decide that. While the defendants did not take the point, I do not think that there is a sufficiently pleaded case in that tort. I do not mean by that to encourage the plaintiff to attempt to plead such allegations better. The point of the PSA and the Crown Proceedings Act 1992 (“CPA”) – which I will come to next – is that the State is liable for wrongdoings of its instrumentalities, agencies, officers and employees, and only the State should be made defendant.
The defendants correctly submit that the Department is an instrumentality or agency of the Crown. Section 5 of the CPA allows for any claim against the Department to be issued against the State.
I consider that the only appropriate – or necessary – defendant to the action is the State. The plaintiff can achieve all of the relief he seeks against the State.
I will order that the Department and Mr Severin be disjoined from the action.
Those are procedural issues. The substantive argument was whether the plaintiff’s action for false imprisonment could be sustained at law. The procedural vehicles advanced by the defendants included stay for want of prosecution (with which I have dealt), striking out (pursuant to the inherent jurisdiction of the Court) and dismissal under Rule 193 for failure to disclose a cause of action.
Defendants’ Submissions
I have dealt with the questions of want of prosecution and appropriate parties. The remaining matters argued were whether the plaintiff’s claim could, as a matter of law, possibly succeed. It was said that it was frivolous or vexatious or an abuse of process. It was said that it was so hopeless that it could not possibly succeed. Reference was made to General Steel Industries Inc v Commissioner for Railways (NSW).[11] I do not think that the precise procedural grounds are important – the effect of the argument is that the defendants seek dismissal of the action on the basis that it cannot properly succeed. In those circumstances I think that it is appropriate to apply the test for summary dismissal.
[11] (1964) 112 CLR 125.
There is some uncertainty given the current state of authorities in this Court as to how that test should be stated. It has been accepted that the test in General Steel Industries is no longer applicable – Ceneavenue Pty Ltd v Martin.[12] However, in both Davies v Minister for Urban Development and Planning[13] and Proude v Visic (No 4)[14] single Judges of the Court held that the judgment of the High Court in Spencer v Commonwealth of Australia[15] required the Court to look simply at the words of Rule 232.
[12] (2008) 106 SASR 1.
[13] (2011) 109 SASR 518.
[14] [2013] SASC 154.
[15] (2010) 241 CLR 118.
The Full Court may have proceeded on a slightly different basis in Collins v Djunaedi (No 2).[16] However, it appears that in Groom v South Australia[17] a differently consituted Full Court confirmed the approach that had been taken in Ceneavenue. It does not appear that that Full Court was referred to any of Davies, Proude or Collins.
[16] [2016] SASCFC 63 at [17].
[17] [2017] SASCFC 35.
It is not necessary for me to attempt to resolve the state of the authorities or to state a case to the Full Court. The matter was argued before me on the basis that the plaintiff’s claim could not possibly succeed. That was the only basis on which the defendants sought dismissal.
The defendants submitted that the application should be dismissed because it could not possibly succeed. The defendants said that the plaintiff did not challenge the validity of the warrant of remand itself. In any event, the defendants submitted that s 182 of the SPA would cure any defect. That subsection provides:
(1) An order, summons, warrant or other process of the Court is not invalid by reason of any defect of substance or form.
The defendants argued that the plaintiff was lawfully imprisoned for the period specified in the warrant. It was submitted that no action for false imprisonment could lie if the imprisonment was the result of an act of a Court. I will return to the authorities relied on.
The defendants submitted that imprisonment at the ARC rather than at the Glenside Campus of the Royal Adelaide Hospital was entirely lawful. The defendants relied on ss 22(1) and 24(2) of the Correction Services Act 1982 (“CSA”). Section 22(1) provides:
(1) A person who is remanded in custody awaiting trial or sentence will be detained in such correctional institution as the CE may determine.
CE is defined as being the Chief Executive of the department – at the time, Mr Severin.
Section 24(2) provides:
(2) Subject to this Act, the CE has an absolute discretion—
(a)to place any particular prisoner or prisoner of a particular class in such part of the correctional institution; and
(b)to establish in respect of any particular prisoner, or prisoner of a particular class, or in respect of prisoners placed in any particular part of the correctional institution, such a regime for work, recreation, contact with other prisoners or any other aspect of the day-to-day life of prisoners; and
(c)to vary any such regime,
as from time to time seems expedient to the CE.
On that basis the defendants argued that the direction in the warrant to detain the plaintiff at the Glenside Campus could not bind the Chief Executive.
In response, the plaintiff referred to the definitions of the terms “prisoner” and “correctional institution” and “prison” in s 4 of the CSA. Those definitions are:
“prisoner” means a person committed to a correctional institution pursuant to an order of a Court or a warrant of commitment.
“correctional institution” means a prison or police prison.
“prison” means premises declared to be a prison under Part 3.
“police prison” means premises to be declared a police prison under Part 3.
It is common ground that the Glenside Campus of the Royal Adelaide Hospital was not at any relevant time declared under Part 3 of the CSA to be a prison or a police prison. That being the case, the plaintiff argues that he could not be a “prisoner” for the purposes of the CSA and that therefore s 24(2) of the CSA could not apply to him.
I consider that that argument could succeed.
It seems to me that the defendants’ submissions beg the point. Was imprisonment in the ARC lawful, given the terms of the warrant? The plaintiff argues that the Court did not order imprisonment – it ordered something quite different. That appears to me to be a potential point of distinction.
The defendants have been unable to point to any authority that expressly excludes the possibility of the claim advanced by plaintiff.
The defendants relied on the decision of the Full Court of Victoria Myer Stores Ltd v Soo.[18] The Court addressed the significance of liberty of the individual. Murphy J quoted an earlier Full Court decision[19] as follows:
The gist of the action for false imprisonment is the mere imprisonment. As a result, the plaintiff carries the burden of establishing no more than imprisonment. He need not prove it was unlawful. If imprisonment is proved it is for the defendant if he is to escape by ability to prove a lawful justification for the imprisonment either at common law or by statute.
[18] [1991] 2 VR 597.
[19] Carnegie v Victoria.
In Trotter v South Australia,[20] Zelling J said:
The law is well settled that once the plaintiff’s further imprisonment is caused by the interposition of the act of the Court, there is thereafter no false imprisonment.
[20] Unreported, Zelling J, S3713.
On appeal, that conclusion was upheld.[21]
[21] Unreported Full Court S4702.
More recently, in Groom v South Australia[22] in dealing with a claim of false imprisonment, Nicholson J said:
The Magistrates in question exercised lawful authority, at the time, to refuse bail. That lawful authority is not to be diminished or removed by a later determination that no underlying offence has been committed. In this case the appellant’s incarceration resulted from a court order and no action for false imprisonment will lie.
[22] [2017] SASCFC 35.
In my view those decisions leave open the question that the plaintiff seeks to pursue. His argument, as I understand it, is consistent with the observations in Soo. I do not accept that the plaintiff’s argument has already been conclusively decided at common law – or that ss 22 and 24 of the CSA must be decisive of the matter.
I do not think that the plaintiff’s case is so hopeless as to be dismissed at an interlocutory stage. I am not satisfied that there is no reasonable basis for the claim. In my view the plaintiff is entitled to his day in court against the State.
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