Gable v Quigley MLA LLB JP
[2019] WADC 151
•1 NOVEMBER 2019
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: GABLE -v- QUIGLEY MLA LLB JP [2019] WADC 151
CORAM: BURROWS DCJ
HEARD: 23 OCTOBER 2019
DELIVERED : 1 NOVEMBER 2019
FILE NO/S: CIV 708 of 2019
BETWEEN: DAMON GENE GABLE
Plaintiff
AND
HONOURABLE JOHN QUIGLEY MLA LLB JP
First Defendant
WEST AUSTRALIA POLICE SERVICE t/as WEST AUSTRALIA POLICE SERVICE
Second Defendant
Catchwords:
Practice and procedure - Rules of the Supreme Court 1971 (WA) O 20 r 19 - Strike out - Writ and statement of claim - No reasonable cause of action - Appeal from registrar - Incomprehensible pleadings
Legislation:
The District Court Rules 2005 (WA), r 15
Road Traffic Act 1974 (WA), s 66, s 67, s 71
Rules of the Supreme Court 1971 (WA), O 20 r 19(1)
Result:
The appeal be dismissed
Representation:
Counsel:
| Plaintiff | : | In person |
| First Defendant | : | Ms S J Keighery |
| Second Defendant | : | Ms S J Keighery |
Solicitors:
| Plaintiff | : | Not applicable |
| First Defendant | : | State Solicitor's Office |
| Second Defendant | : | State Solicitor's Office |
Case(s) referred to in decision(s):
Culleton v Permanent Custodians Ltd [2018] WASC 251
Gable v Director of Public Prosecutions for WA [2019] WADC 104
Gable v Quigley MLA LLB JP [2019] WADC 117
Glew v Frank Jasper Pty Ltd [2010] WASCA 87
Ibrahim v The Honourable Justice Carolyn Martin [2012] WASC 338
Smart v Prisoner Review Board (WA) [2012] WASC 48
Stewart v Hames [2019] WASCA 127
BURROWS DCJ:
Background of proceedings
On 22 February 2019 the plaintiff Damon Gene Gable filed a writ of summons and statement of claim naming the Honourable John Quigley MLA LLB JP, West Australia Attorney General Office as first defendant and West Australia Police Service trading as West Australia Police Service as second defendant: CIV 708 of 2019.
Mr Gable's previous claim against these entities in CIV 3260 of 2018 was struck out on 6 November 2018 by Deputy Registrar Harman. An appeal against this decision heard before Braddock DCJ on 18 February 2019 was dismissed.[1]
[1] Gable v Director of Public Prosecutions for WA [2019] WADC 104.
On 13 March 2019 the State Solicitor's Office filed a memorandum of appearance for both defendants.
On 20 March 2019 the defendants filed a chamber summons seeking orders striking out the writ and statement of claim.
On 27 March 2019 the plaintiff filed a chamber summons. The plaintiff's application was heard at a special appointment before Registrar Kingsley on 29 March 2019. Registrar Kingsley made an order preserving the plaintiff's Nissan motor vehicle registration 1GAM 898 which is held by the Western Australian Police (preservation order).
On 8 May 2019 the plaintiff filed an amended statement of claim. The defendants maintained their strike‑out application.
On 8 August 2019 Deputy Registrar Hewitt heard the strike‑out application.
On 22 August 2019 the deputy registrar struck out the plaintiff's writ and statement of claim and dismissed the action.[2] He ordered that the preservation order be set aside unless the plaintiff filed an appeal within 14 days.
[2] Gable v Quigley MLA LLB JP [2019] WADC 117.
On 22 August 2019 the plaintiff lodged an appeal from Deputy Registrar Hewitt's decision.
Relevant law
An appeal from a decision of a registrar or a deputy registrar of this court to a judge is a hearing afresh or 'de novo': District Court Rules2005 (WA) r 15(6). It is not necessary for the plaintiff to demonstrate any error of law or principle in the decision previously made.[3]
[3] Stewart v Hames [2019] WASCA 127 [8] (Murphy & Mitchell JAA).
Order 20 r 19 of the Rules of the Supreme Court 1971 (WA) (RSC) relevantly provides as follows:
19.Striking out pleadings etc
(1)The Court may at any stage of the proceedings, subject to subrule (3), order to be struck out or amended any pleading, or the indorsement of any writ in the action, or anything in any pleading or in the indorsement on the ground that -
(a)it discloses no reasonable cause of action or defence, as the case may be; or
(b)it is scandalous, frivolous or vexatious; or
(c)it may prejudice, embarrass or delay the fair trial of the action; or
(d)it is otherwise an abuse of the process of the Court,
…
The defendants argue that the writ and statement of claim should be struck out in their entirety on the grounds that they disclose no reasonable cause of action, that they are an abuse of process, that they are frivolous and vexatious, and that they may prejudice, embarrass or delay the fair trial of the action pursuant to O 20 r 19(1)(a) – r 19(1)(d).
They submit that the writ and amended statement of claim are difficult to understand; it is difficult to discern from the documents what cause or causes of action the plaintiff relies upon or which remedies he seeks. They argue that it is not currently possible for the defendants to plead a defence as the pleadings are ambiguous, not reasonably intelligible, raise immaterial or irrelevant issues and fail to confine the issues. Further, the facts pleaded do not give rise to relief.
The principles applicable to strike‑out applications have been usefully summarised in the submissions of the defendants at par 12 ‑ par 16 as follows:
Order 20 rule 19(l)(a)
12.The principles in respect of a strike out application made pursuant to Order 20 rule 19(l)(a) of the RSC are as follows:4
'(1)The rule is intended to apply only to cases which are really not arguable and not to cases where under the previous practice demurrer would have been the proper course.
(2)On the application, not only must all the facts alleged in the statement of claim be accepted as true, but it must be taken for granted that on all other points the pleading is unassailable.
(3)Great care must be exercised to ensure that a plaintiff is not improperly deprived of his opportunity for the trial of his case by the appointed tribunal.
(4)But the rule should not be reserved for those cases where argument is unnecessary to show the futility of the plaintiffs claim. Argument, even extensive argument, may be necessary to demonstrate that the plaintiffs case is so clearly untenable that it cannot possibly succeed.
(5)As a general rule, a plaintiff is 'entitled ... as of right to have his case heard, to have the facts found and then to argue the question of law as it arises before the trial Judge upon the facts as found. It is only in cases in which it can be seen from the outset that, however the facts be found, there is no basis for the legal conclusion contended for by the plaintiff that the pleading should be struck out'.
(6)A court at first instance should be careful not to risk stifling the development of the law by summarily rejecting a claim where there is a reasonable possibility that, as the law develops, it will be found that a cause of action will lie.'
13.A reasonable cause of action means reasonable according to law. If the facts pleaded conceivably give rise to relief, then the cause of action should be held to be reasonable.5
14.If a plaintiff omits to plead a critical element of a cause of action, or fails to plead facts which are capable of constituting a cause of action, the pleading will fail to disclose a reasonable cause of action. In the case of a deficiency of that kind, however, the plaintiff would ordinarily be permitted to amend the pleading to address the deficiency.6
Order 20 rule 19(l)(b)
15.The terms 'frivolous' and 'vexatious' were recently considered in the decision of Re Rules of the Supreme Court 1971 (WA); ex parte Gates7 as follows:8
'An action is frivolous when it is not worthy of serious consideration, is insupportable in law, discloses no cause of action or is groundless. So too a matter that is without substance or is fanciful is frivolous. The term is apt to describe proceedings in which the plaintiffs claim is so obviously untenable that it cannot possibly succeed or in which there is no serious question to be tried. An action is vexatious if it has no reasonable prospects of success. The term has also been said to be apt to describe an action which is a sham and which cannot possibly succeed.'
Order 20 rule 19(l)(c)
16.The phrase 'prejudice, embarrass or delay the fair trial of the action':9
'… is one which 'imports the notion [that] the character of the pleading is such as to make the fair trial of the action more difficult to achieve, that the trial will be unduly protracted or delayed or the pleading is calculated to prejudice the legal process'. That description may be apt in a variety of circumstances, such as where the pleadings are evasive, or conceal or obscure the real questions in controversy, or are ambiguous or not reasonably intelligible, or raise immaterial or irrelevant issues, or fail to confine the issues or state the case of the party with reasonable particularity, or raise a case in terms which are too general to identify the cause of action.'
(FN4: Kimberley Downs Pty Ltd v State of Western Australia (Unreported, Supreme Court of Western Australia, Master Staples, Library No 6414, 25 August 1986) 6 – 7 (citations omitted); Insurance Commission of Western Australia v Anthony Leslie John Woodings as Liquidator of the Bell Group Ltd (in Liq) [No 2] [2017] WASC 372 [31].
FN5: Culleton v Permanent Custodians Ltd [2018] WASC 251 [30].
FN6: Insurance Commission of Western Australia v Anthony Leslie John Woodings as Liquidator of the Bell Group Ltd (In Liq) [No 2] [2017] WASC 372 [32].
FN7: [2018] WASC 213.
FN8: [2018] WASC 213 [31] (citations omitted).
FN9: Insurance Commission of Western Australia v Anthony Leslie John Woodings as Liquidator of the Bell Group Ltd (in Liq) [No 2] [2017] WASC 372 [33] (citations omitted). See Culleton v Permanent Custodians Ltd [2018] WASC 251 [31].)
In dealing with the appeal itself, I was cognisant of the fact that the plaintiff is a litigant in person and approached the matter in accordance with the established principles concerning litigants in person. Litigants in person should be afforded some latitude and the documents in which such a litigant articulates his or her case should be approached with some flexibility.[4] As a litigant in person, a plaintiff is also entitled to some leniency in relation to compliance with court rules.[5] The court needs to be careful to ensure that if the plaintiff has a case, it is not denied because of a poorly expressed document or submission.[6] At the same time, the court must ensure that any latitude given does not work an injustice to the defendants.[7]
[4] Smart v Prisoner Review Board (WA) [2012] WASC 48 [10] (Pritchard J).
[5] Glew v Frank Jasper Pty Ltd [2010] WASCA 87 [10] (judgment of the court).
[6] Ibrahim v The Honourable Justice Carolyn Martin [2012] WASC 338 [21] (Beech J).
[7] Glew v Frank Jasper [10].
The role of the judge in applications for summary dismissal of civil proceedings was recently summarised by Allanson J:[8]
34.... It is well settled that leniency may be required in relation to compliance with the procedural rules. And the court will approach an application to summarily determine a claim brought by a self- represented litigant with special care, 'to ensure that within the possibly ill-expressed and unstructured statement of claim, there is no viable cause of action'.
35.But the allowances that can be made are necessarily limited, both as a matter of fairness to the other party, and because compliance with procedure may be necessary to ensure that the court can properly decide the dispute before it. Pleadings ensure a basic requirement of procedural fairness, and, to do so, must state the case sufficiently clearly to allow the other party a fair opportunity to meet it. In Nyoni v Patterson, Pullin JA said:
'After allowing for the disadvantage an in person litigant suffers, it is still necessary, out of fairness to defendants, that the statement of claim is drawn so that when the opponent pleads to it, the pleadings will define with clarity and precision the issues or questions which are in dispute between the parties and fall to be determined by the court. A statement of claim must state all material facts to support the claim to relief so that fair and proper notice is given to the defendants to enable them to frame and prepare their own case for trial. Such clarity and precision is also necessary to inform the court about the precise matters in issue between the parties which are to be determined by the court and which set the limits of the action.
… clear and precise pleadings are necessary because they form a permanent record of the issues and questions raised in the action and decided so as to prevent future litigation upon matters already adjudicated upon between the litigants: Opperman v The State of Western Australia.'
[8] Culleton v Permanent Custodians Ltd [2018] WASC 251 [34] – [35].
The materials
In order to understand the difficulty in distilling any claim from the documents filed by Mr Gable it is necessary to reproduce the writ and statement of claim. The writ is endorsed as follows:
I. Man binding contract with commerce the trustee - debtor West Australia Attorney General Dept; do right to all manner of people, according to law, without fear or favour, arilection or ill will, s 5 s 92, s 116 Commonwealth Constitution, Confirmation of charters 1297 and Magna Carta -39 Crown in right of this jurisdiction laws of Parliament, the Crown in all capacities 0 52 r I RSC Injunction Prohibition to grant injunctive exercise of legal or 'Equitable before the Law Bench Book rights' to his protection.8. 1.1 Mr Gable scope of offence is and was not to obstruct s 143 crimes but act his rights; ICCPR III 6, 8, 9 reclaim 0 18 r 2 RSC counter claim. Administer property - un warranted - unreasonable-excessive assault by the West Australia Mandurah Police officer PD 16042 Dixon s 222, s 409(1) fruadly (c) gains of pecuiry Criminal Code act on 26th- 27th Jan 00:00-03:00 hrs Mandurah and Feb. Midland 2019 13:44, Police administer property both of the man and automobile, s 80 Property Securities Act. despite any officer oath total disregard for the act man damon and Disabilities Convention means the Rights of Persons with Disabilities in the contract, established in New York on 30 March 2007, as in force for Australia or Bench Book 4.2.3.7 2(a) disability, in relation to a person, means: (a) total or partial loss of the person's bodily or mental functions; mental disorder defines any psychological syndrome characterized by Distressing symptoms, un warranted trauma or s 222 assault.
The indorsement continues:
II Elizabeth the second, by the grace of God of the United Kingdom. Queen Head of the Common Wealth. Defender of the Faith commands, the defendants; (1) the Commence Attorney -General's ABN 92 661 124, the administrative Council and West Australia Police officer of the Commonwealth are bound to observe the laws of the land. (I) Violations. Its Magistrates Court Act 2004 s36. public servants' officers. Official duty as State Court is tort to allow navigation off the ordinary course of justice. recognized the states duties the security as the court determines to be appropriate' having regard to a number of matters. By treaty section 75(1) by Accusatorial proceeding which is governed by the fundamental principle that the burden lies in all things upon the Crown
III. Remedy sought Crown laws of Parliament. the Crown in all capacities Injunction Prohibition to grant injunctive exercise equable lien of unliquidated punitive damages.
IV. retain Status Qou, Commonwealth law means: Human right RIGHTS act 1986 - Schedule 2. Disability Discrimination Act 1992, the Act; 3objects(iv)(b) 11(1) (a) disability, in relation to a person. means: (a) total or partial or mental functions:897
Disability v Gable not fluid legal lease commenced in jurisprudence Collins British.
4. an incapacity in the eyes of the law to enter into certain transactions.
The amended statement of claim filed 8 May 2019 reads as follows:
1.The plaintiff claims damages against Mandurah police arising from the circumstances in which took place between 00:00 -03:00 am on 26/27th Jan. 2019.
2.Conduct and performance enacted that police would act oath to the Crown according to Statue law: s5 Constitution. Police act 1982, West Australia Code of Conduct and Public Sector Management Act 1974 s9 (c) are to exercise proper courtesy. consideration and sensitivity in their dealings with members of the public.
3.Creditor damon was traveling 50 km southwest on residential St. 26th - 27th Jan 00:00 hrs Halls Head and an execution of s92 Constitution legal protection to freedom use of the common ways of movement of - hinders or harassment on commonwealth road traveling. Halls Head. No breach or any danger.
4.Mandurah Police: officer PD 16042 Dixon for unknown, un warranted, no articulable suspension other than only vehicle on the road indicia of reliability in order to constitute the basis of a stop. Comes after three prior arbitrary arrest ICCPR 9 late 2018 - Feb 2019 have commenced with ligation V no stops in four year prior.
5.Plaintiff raised valid reasons for stop by Officer PD 16042 Dixon and his force or duress damon offered alternative has psychological prohibition of breathalyses.;
1.ICCPR 17.1 No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation.
II.Article 7 No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. In particular. no one shall be subjected without his free consent to medical.
III.Article 10. 1. All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity.
IV.Mr gable should had been meet with dignity and respect with reason attempts made in could've accommodated the specific need to a disability and its alternative preliminary remedy.
V.Disabilities Convention means the Rights of Persons with Disabilities in the contract, established in New York on 30 March 2007, in force for Australia or Bench Book 4.2.3.7; 2(a) disability, in relation to a person, means:(a) total or partial loss of the person's bodily or mental functions; mental disorder defines any psychological syndrome characterized by Distressing symptoms, un warranted trauma or s222 assault.
VI.Wished to take automobile to the station so no assets being left on road via prior experience Auto theft report no. 051018 1455 89401 (no response police forensics).
6.For Plaintiffs protection of his body and auto on the roadside as it was to no immediate breach of peace nor danger: PD 16042 Dixon Opened my only barrier of protection -automobile passenger and driver door. Dioxin pulling me out placement of the handcuffs is described in the statement;
I.Constable took hold of the Plaintiff and cuffed the Plaintiff's hands to the rear of his body with metal handcuffs. Excessive force was applied to the plaintiff in the course of that arrest.
II.. The Plaintiff at that time felt discomfort in his upper arms, shoulders and wrists by the manner and position in which the handcuffs had been applied.
III.The action of Constable was an unreasonable, unlawful and/or excessive use of force upon the Plaintiff to affect his arrest.''
IV.despite requested attempt alternative resolution
V.Put Plaintiff in back patty wagon after 20minutes took to Station with no seat belt,
7.Mandurah Station hours 00:00- 03:00am detained arbitrary arrest ICCPR 9.
8.Duress I insisted immediate urine and blood.; Evidence rejected; Mandurah Station hours 00:00- 03:00am lies in the misuse of legal process, even if properly obtained, for some improper purpose. Mention that no such improper purpose was sought to Prosecute either knew that or was recklessly indifferent to the fact that adopting and continuing the prosecution was an abuse of process of the courts and caused harm to the plaintiff. s66 (2) IV Road Traffic Act 1974 allows and duty of care.
9.Request blood Mandurah Emergency 03:20am. 000 calls; 02:48 12 mins, and 03:33 27mins, call report 03:43am Police assist centre call to Ashly 131444. To further attempt Peel Emergency 09:10~wainting/seen 11:00 blood and report medical issues.
10.Creditor damon suffered; swelling, 25cm laceration, welts to wrist.45 minutes of being cuffed. Blisters and minor cuts to both feet forced to walk 5-6 km's barefoot with no credit nor money back to the automobile from Station. Aggravation both to lower back and left knee couple weeks.
11.Creditor claimant in advance filed 4th Feb 2019 and defendants acting State solicitor offer and acceptance tiled the manner with WADC. 8th Feb. 2019.
12.Due process owed. 14th Feb 2018 Midland 2019 13:44, Midland Police administer property both of the man and automobile, s80 Property Securities,
13.Administer property request of police creditor signed UCC 1‑305, 1‑308 as proposal (notice of appeal) O 65 RSC.
Discomfort to both upper arms, shoulders and wrists
29.2Emotional injuries including shock, anxiety, mental anguish and distress
29.3Humiliation and embarrassment
29.4Loss of self‑esteem and dignity
29.5Loss of trust towards Police officers
29.6Loss of enjoyment of life
Remedy
Re;JD Mayne and H McGregor, Mayne & McGregor on Damages (Sweet & Maxwell, Limited, 12th ed, 1961) 196.
Knox CJ in Whitfield v De Lavret & Co Ltd of 'conscious wrongdoing in contumelious disregard of another’s rights' describes at least the greater part of the relevant field.
Equitable lien Punitive ~ Damages interest pursuant to Supreme Court Act 1935 (WA)
Human Rights Act 2004 an Court costs. Particulars; injuries, loss and damage.
The writ and statement of claim, with the greatest respect to Mr Gable, are incomprehensible. They disclose no discernible cause of action and do not give rise to relief. They are replete with irrelevant references to Acts, conventions and cases. Despite repeated reading of the documents I have been unable to decipher them.
Mr Gable's discernible claim
In the course of the appeal hearing I accepted the affidavits sworn by Mr Gable on 22 February 2019 and 15 October 2019 as the plaintiff's written submissions on the appeal. Those documents were in addition to a document entitled 'submissions appeal from a decision of a registrar' filed 24 September 2019. Regrettably those documents are no more comprehensible than the writ and statement of claim.
I also heard extensive oral submissions from Mr Gable in the course of the appeal and attempted to clarify the nature of his claim and the relief sought.
It appears that the following facts are alleged by Mr Gable:
1.Shortly after midnight on 27 January 2019, Mr Gable was pulled over by Western Australia Police officers and asked to undergo a random breathalyser test.
2.Mr Gable is of the view that police cannot randomly pull drivers over and require them to take breath tests. He considers this to be a breach of his human rights.[9]
3.Mr Gable refused to take the breath test. He considers this to be an intrusive and invasive procedure.[10] Mr Gable argues that he has a psychological issue with breathalysers, describing the process as 'oral rape'.[11] He offered to provide a blood or urine sample, however that request was denied by police.[12]
4.Mr Gable was removed from his vehicle and arrested following his refusal to take the breath test.[13] He was handcuffed and taken back to the police station where he was held for a number of hours.[14]
5.He was required to sign a document which he believes to be a prosecution notice without knowing what that document was.[15] He was then released with no phone or shoes and had to walk several kilometres back to his car.
[9] ts 47 – 50.
[10] ts 49.
[11] ts 55 (23 October 2019).
[12] ts 51, ts 53.
[13] ts 52.
[14] ts 57.
[15] ts 52.
Counsel for the defendants confirmed the following in the course of the hearing:
1.The arresting officer issued a disqualification notice, disqualifying Mr Gable from holding a driver's licence for two months, expiring 27 March 2019.
2.On 14 February 2019, whilst Mr Gable was still disqualified from holding a licence, he was stopped while driving by police, and his car was seized and impounded.
3.Mr Gable was summonsed for failing to provide a sample of breath. He failed to appear in the Mandurah Magistrates Court in response to the summons and a bench warrant issued for his arrest on 15 February 2019. He has not therefore been convicted of the offence of failing to provide a sample of breath pursuant to s 67(2)(a) of the Road Traffic Act 1974 (WA) (the RTA). Mr Gable was convicted of the offence of no authority to drive on 13 March 2019 arising from driving on 14 February 2019.
Defendants' submissions
In relation to issues raised by the plaintiff the defendants submit the following regarding the relevant provisions of the RTA:
1.A police officer may conduct a 'random' breath test on a driver or person in charge of a vehicle, or any person the police officer has reasonable grounds to believe was the driver or person in charge of a motor vehicle. Section 66(1) of the RTA provides that a police officer may require such a person to provide a sample of his or her breath for a preliminary test. There is no requirement that the police officer hold a reasonable suspicion or reasonable belief of criminal conduct before doing so.
2.Pursuant to s 66(lb) of the RTA, where a person required under s 66(1) to provide a sample of breath for a preliminary test is in a motor vehicle, a police officer may require the person to leave the vehicle for the purpose of providing the sample.
3.A driver does not have a general entitlement to provide a blood or urine sample instead of a breath sample. Pursuant to s 66(2) of the RTA, a police officer has a discretion to require a driver to provide a blood or urine sample in the particular circumstances set out in s 66(2) (which includes where a person refuses or fails to provide a sample of his breath or appears to be incapable of providing a sample of his breath for a preliminary test). If those circumstances arise, the police officer may require the person to allow a blood sample to be taken or provide a urine sample pursuant to s 66(4), s 66(6) and s 66(6a).
4.Section 66(4) of the RTA sets out the circumstances where a person shall not be required under s 66(2) to provide a sample of breath for analysis (sample could not be provided within four hours or the person is incapable of providing the specimen because of his or her physical condition). In those circumstances, s 66(5) – s 66(6a) of the RTA apply (emphasis added).
5.The plaintiff has not pleaded any facts suggesting that he appeared incapable because of his physical condition of giving a sample of breath, as required by s 66(4)(c) of the RTA.
6.Therefore, when the plaintiff refused to provide a sample of breath when required to do so by a police officer on 27 January 2019, he committed an offence under s 67(2)(a) of the RTA and was liable to be arrested without warrant.
I accept the defendants' submissions in relation to s 66 and s 67 of the RTA.
In the course of the appeal the plaintiff seemed to assert that s 66(4) of the RTA incorporates a psychological element into the word 'physical'. That is a matter which is properly raised at the hearing of any criminal proceedings for the charge of failing to provide a sample of breath in the Magistrates Court. It is not a matter which gives rise to any cause of action that I can discern in the civil proceedings.
Defendants' submissions in relation to arrest
The statement of claim alleges that a police officer handcuffed the plaintiff's hands to the rear of his body, that 'excessive force was applied' and the plaintiff 'felt discomfort'.
To the extent that the plaintiff may be alleging battery by the arresting officer, the defendants submit the elements of battery are as follows:
1.A voluntary act by the defendant.
2.The act immediately or directly caused physical contact with the plaintiff.
3.Such contact was offensive, in that it was likely to cause injury or affront.
4.Where the tort of battery is proved in the context of actions by police, the onus is on the police to establish that they acted with lawful justification, in that their actions were authorised or excused by law.
5.Section 231 of the Criminal Code provides that it is lawful for a person engaged in making an arrest 'to use such force as may be reasonably necessary to overcome any force used in resisting' that arrest. Section 260 of the Criminal Code provides that the use of more force than is justified by law is unlawful. The question of what force is reasonably necessary to effect an arrest depends on an objective evaluation of all the surrounding circumstances.
The defendants argue that the police officer was lawfully entitled to arrest the plaintiff on 27 January 2019 when the plaintiff refused to provide a sample of his breath, and the police officer was lawfully entitled to require the plaintiff to leave his car for the purpose of providing the sample.
They say even if it is accepted that the facts pleaded establish the elements of a voluntary act, immediate or direct physical contact and/or 'offensive' contact likely to cause injury or affront, the plaintiff has not pleaded any facts regarding the level of force which indicate the force was not reasonably necessary to effect the arrest in the circumstances.
At the hearing of the appeal I specifically raised with Mr Gable whether his claim was for battery, in that it was a claim of excessive force used by police in the course of his arrest. He responded that his claim against the police was for 'entrapment' because 'none of what he had done constitutes a crime'.[16] The plaintiff seemed to be referring to his belief that the police officers had no right to stop him and require him to provide a sample of breath.[17]
[16] ts 76 – 77.
[17] ts 52.
The pleadings do not set out a cause of action for battery. They do not set out any discernible cause of action. Had it been a case where I could be satisfied battery was the cause of action Mr Gable seeks to litigate then, as a litigant in person I would have granted him leave to re‑plead his claim. However, in this case Mr Gable has not adopted battery as a cause of action. The basis of his claim remains indiscernible to me.
For the sake of completeness I will deal with some of the issues raised by the plaintiff in his written and oral submissions.
Violation of the plaintiff's human rights
The plaintiff asserted that his human rights had been violated when the police stopped his vehicle and required him to undergo a breath test. He cited the Human Rights Act and the International Covenant on Civil and Political Rights (ICCPR) and the Constitution as somehow overriding the provisions of the RTA. As was properly submitted by the defendants' counsel there is no Human Rights Act in Western Australia and no general human rights protected in the Constitution. If the plaintiff was referring to the Australian Human Rights Commission Act 1986 (Cth), that act vests jurisdiction for human rights issues with the Australian Human Rights Commission and then the Federal Circuit Court and then the Federal Court. This court has no jurisdiction for a claim under that legislation. Similarly if Mr Gable is referring to the Equal Opportunities Act 1984 (WA), the jurisdiction is vested in the Equal Opportunity Commission and then the State Administrative Tribunal. In respect of any claim under international law pursuant to the ICCPR no jurisdiction vests with this court.
In relation to references made by Mr Gable to the Constitution I do not consider such references, to raise any constitutional matter which would have required the issuing of notices under s 78B of the Judiciary Act 1903 (Cth).[18] There is no valid constitutional argument that I can discern.
[18] Ireland v Watson [2018] WASCA 57 [54].
Order preserving plaintiff's vehicle
The defendants submit that on 27 January 2019, the attending officer was entitled to issue the plaintiff with a disqualification notice under s 71C(l)(b) of the RTA because he had reason to believe that the plaintiff had committed an offence against s 67 of the RTA (being the failure to comply with a requirement to provide a sample of breath for analysis).
On 14 February 2019, when the plaintiff drove his vehicle despite his licence being disqualified, the plaintiff committed an 'impounding offence (driver's licence)' for the purposes of the definition in s 78A of the RTA (as the plaintiff had committed an offence against s 49(1)(a) of the RTA when read with s 49(3)(b)).
On 14 February 2019, upon discovering the plaintiff driving while his licence was disqualified, the attending officer was required to seize and impound the plaintiff's vehicle under s 79A of the RTA. The plaintiff's car was therefore lawfully impounded pursuant to s 79A.
I accept the submissions of the defendants.
In the circumstances the vehicle was lawfully impounded. There is no basis to continue the order preserving the plaintiff's motor vehicle.
Named defendants
The plaintiff has named the Attorney General of Western Australia as first defendant in the writ. It seems that the plaintiff's grievances are with the actions of the police. Mr Quigley as the Attorney General for Western Australia could not be an appropriate defendant in relation to any complaint about police conduct.
In relation to the second defendant there is no legal entity 'West Australia Police Service t/as West Australia Police Service'. As was pointed out previously by Braddock DCJ the Commissioner of Police might be the respondent to a claim involving the action of police officers. However, as was the state of the pleading when the matter came before her Honour, there is nothing in the indorsement of the writ, the statement of claim or the written or oral submissions of the plaintiff which indicate any clear claim against the police on any known basis in the action.
In conclusion, Mr Gable has failed to articulate any meaningful claim in either his filed documents or his submissions, which might be re‑drafted into a viable statement of claim. I find the writ and statement of claim to be ambiguous and not reasonably intelligible, the pleadings fail to confine the issues or state the case of the plaintiff with reasonable particularity and raise a case in terms which are too general to identify a cause of action.
Costs
In relation to the question of costs I sought submissions from Mr Gable at the appeal hearing in relation to the appropriate costs order if he was unsuccessful in his appeal. He did not make any submission on costs that would warrant any order departing from the usual order that costs follow the event.
I make the following orders which will be extracted and provided to the parties:
1.The appeal be dismissed.
2.Order 1 made by Registrar Kingsley on 29 March 2019 preserving the plaintiff's Nissan motor vehicle registration 1GAM 898 be set aside.
3.The plaintiff pay the defendants' costs of the appeal to be taxed if not agreed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
JG
Associate to Judge Burrows7 NOVEMBER 2019
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