Groom v State of SA - [2017] SASCFC 35

SUPREME COURT OF SOUTH AUSTRALIA
(Full Court)
GROOM v STATE OF SA
[2017] SASCFC 35
Judgment of The Full Court
(The Honourable Chief Justice Kourakis, The Honourable Justice Nicholson and The Honourable Justice Hinton)
1 May 2017
PROCEDURE - SUPREME COURT PROCEDURE - SOUTH AUSTRALIA - PROCEDURE UNDER RULES OF COURT - SUMMARY JUDGMENT
APPEAL AND NEW TRIAL - APPEAL - PRACTICE AND PROCEDURE - SOUTH AUSTRALIA
Appeal against an order of a Master granting summary judgment in favour of the respondent - whether the appellant's statement of claim disclosed no reasonable basis for any of the claims alleged by the appellant.
Held Nicholson J (Kourakis CJ and Hinton J agreeing): Appeal dismissed.
Supreme Court Civil Rules 2006 r 232, r 280, r 286; Intervention Orders (Prevention of Abuse) Act 2009 (SA) s 21; Domestic Violence Act 1994 (SA); Magistrates Court Act 1991 (SA) s 44; Bail Act 1985 (SA) Pt 3, referred to.
Groom v Police [2013] SASC 49; Groom v Police (No 2) [2013] SASC 50; Groom v Police (No 3) [2013] SASC 93; Groom v Police [2014] SASC 41; Groom v Police [2014] SASCFC 125; Groom v Police [2015] SASC 101; Ceneavenue Pty Ltd v Martin [2008] SASC 158, (2008) 106 SASR 1; New South Wales v Bujdoso (2005) 227 CLR 1; Cran v State of New South Wales [2004] NSWCA 92, (2004) 62 NSWLR 95; Sullivan v Moody [2001] HCA 59, (2001) 207 CLR 562; Tame v New South Wales [2002] HCA 35, (2002) 211 CLR 317; Australian Capital Territory v Crowley [2012] ACTCA 52, (2012) 7 ACTLR 142; Rajski v Powell (1987) 11 NSWLR 522; Anderson v Gorrie [1895] 1 QB 668; A v State of New South Wales [2007] HCA 10, (2007) 230 CLR 500, considered.

GROOM v STATE OF SA
[2017] SASCFC 35
Full Court: Kourakis CJ, Nicholson and Hinton JJ

KOURAKIS CJ: I would dismiss the appeal for the reasons given by Nicholson J.
NICHOLSON J.
Introduction
On 19 November 2015, Mr Stephen Groom (the appellant) issued proceedings in the Supreme Court against the respondent seeking damages in the amount of $2.5 million. On 21 June 2016, a Master granted summary judgment in favour of the respondent.[1] The appellant has appealed the Master’s decision.
[1] Groom v The State of South Australia (Unreported, Supreme Court of South Australia, Master of the Supreme Court, 21 June 2016).
The appellant’s complaints as set out in his second statement of claim relate to the conduct of the South Australian Police (“SAPOL”) the Office of the Director of Public Prosecutions (“DPP”) the Department for Correctional Services (“DCS”) the Department for Families and Communities (“DFC”) and a number of judicial officers of the Magistrates Court of South Australia. The appellant’s primary allegation is that the respondent, through each of these various entities, has breached a duty of care owed to him. He also complains of false imprisonment and malicious prosecution.
Pursuant to rule 280(2) of the Supreme Court Civil Rules 2006, the appeal was referred by a Judge of this Court to the Full Court for determination.
Background
The appellant’s interactions with the criminal justice system prior to and giving rise to the appellant’s summons and statement of claim, the subject of these proceedings, can be summarised as follows.[2]
[2] For present purposes, that which follows is taken from a combination of the court records, various reported judgments concerning the appellant, namely, Groom v Police [2013] SASC 49, Groom v Police (No 2) [2013] SASC 50, Groom v Police (No 3) [2013] SASC 93, Groom v Police [2014] SASC 41, Groom v Police [2014] SASCFC 125 and Groom v Police [2015] SASC 101, and the appellant’s allegations. The correctness of the appellant’s factual allegations, as pleaded, is assumed. However, it was not necessary for the Master to make any factual findings with respect to the appellant’s pleaded allegations for the purpose of determining the respondent’s summary judgment application.
On 19 October 2011, the appellant’s former partner obtained an ex parte domestic violence restraining order against the appellant pursuant to the Domestic Violence Act 1994 (SA). The terms of the order prevented the appellant from being on the premises at which his former partner resided or worked and prevented the appellant from contacting her save for contact concerning their child.
New legislation, the Intervention Orders (Prevention of Abuse) Act 2009, came into operation on 9 December 2011, that is, after the issue of the ex parte domestic violence restraining order. As a consequence of the relevant transitional provisions, the original order continued as an interim intervention order.[3]
[3] On 9 December 2011 the Domestic Violence Act 1994 (SA) was repealed and partially replaced by the Intervention Orders (Prevention of Abuse) Act 2009 (SA). Significantly with respect to this matter, clause 37(1) of Schedule 1 of the Act provides that any domestic violence restraining orders that were in force under the former Act remained in force as if they were an intervention order issued under the Intervention Orders (Prevention of Abuse) Act 2009 (SA). It was common ground that the domestic violence restraining order against the appellant was effectively converted to an interim intervention order pursuant to section 21 of the current Act.
On 11 December 2011, the appellant was arrested for allegedly assaulting his former partner and thereby breaching the interim intervention order. On 12 December 2011, the appellant appeared before a Magistrate and was granted bail. On 16 December 2011, the appellant appeared unrepresented before a Magistrate for a pre-trial conference in relation to the matter of the confirmation of the interim intervention order. The matter of confirmation was listed for trial on 22 February 2012.
On 21 and 23 December 2011, and again on 19 January 2012, the appellant appeared in the Magistrates Court in relation to his bail conditions. On 2 February 2012, the appellant attended a pre-trial conference before a Magistrate in relation to the assault charge and the alleged breach of the interim intervention order.
On or about 15 February 2012, the appellant was taken into custody in respect of new charges. The appellant alleges that, on or about 20 February 2012, he requested a friend to bring his documentation relating to the interim intervention order to him in gaol. However, the friend made enquiries and was told by an officer of the DCS that he would not be permitted to bring the documentation to the appellant.
On 22 February 2012, the appellant appeared in a suburban Magistrates Court ex custody in relation to the 2011 charges. The interim intervention order was also listed for hearing on that date. A lawyer appeared on behalf of the appellant with instructions to act in relation to the assault matter. The lawyer did not have instructions to act for the appellant in relation to the interim intervention order. When the assault matter was called on, the appellant’s lawyer made submissions.
The appellant appeared, unrepresented, that afternoon with respect to the interim intervention order matter. The appellant consented to the confirmation of the interim intervention order. The confirmation of the interim intervention order was later appealed by the appellant some six months out of time. On appeal: the appellant was permitted to withdraw his consent; the appeal was allowed; the confirmation was set aside; and the matter remitted to the Magistrates Court.[4]
[4] Groom v Police (No 3) [2013] SASC 93.
Importantly to this chronology, the appeal against confirmation of the interim intervention order was not determined until 25 June 2013.
Meanwhile, on 23 August 2012, the appellant was found guilty of the 2011 assault charge, but not guilty of contravening the interim intervention order. The appellant appealed against the assault conviction. Furthermore, in November 2012, the appellant was again arrested and charged with two counts of failing to comply with a bail agreement and one count of contravening the intervention order. He was in custody on remand until 7 December 2012 at which time he appeared before a Magistrate in respect of these later charges. He pleaded guilty to all charges and was sentenced to time already spent in custody and released the same day. The appellant appealed against this decision on the basis, inter alia, that the manner by which his plea of guilty came about involved a miscarriage of justice.
On 26 February 2013, the Supreme Court allowed the appellant’s appeals with respect to the decisions made on 7 December 2012 and 23 August 2012. Both matters were remitted to the Magistrates Court for rehearing.[5]
[5] Groom v Police [2013] SASC 49 and Groom v Police(No 2) [2013] SASC 50.
As earlier indicated, on 25 June 2013, the Supreme Court allowed the appellant’s appeal in respect of the confirmation of the interim intervention order entered on 22 February 2012 and that matter was also remitted to the Magistrates Court.[6]
[6] Groom v Police (No 3) [2013] SASC 93.
On 10 December 2013, the appellant appeared in the Magistrates Court in relation to two separate matters:
(i)an application to confirm the interim intervention order; and
(ii)31 charges (12 counts of breach of the bail, 12 counts of contravening a condition of an intervention order, 6 counts of breaching a domestic violence restraining order and 1 count of aggravated assault).
The court was advised that the proceedings had been resolved on the basis that the appellant had agreed to consent to the confirmation of the interim intervention order subject to the 31 charges being withdrawn. By consent, the Magistrate confirmed the intervention order dated 19 October 2011 and the remaining charges were withdrawn by the police. The appellant proceeded to appeal against the orders that were made by the Magistrate.
On 21 March 2014, a single Judge of the Supreme Court refused permission for the appellant to appeal against the confirmation of the intervention order entered by the Magistrate on 10 December 2013.[7] On 19 November 2014, the Full Court refused permission for the appellant to appeal against the decision of the single Judge entered on 21 March 2014.[8]
[7] Groom v Police [2014] SASC 41.
[8] Groom v Police [2014] SASCFC 125.
On 18 December 2014, a Magistrate found the appellant guilty of contravening a term of the intervention order on 17 January 2014. The appellant appealed. This appeal came before me and, on 14 July 2015, I refused permission to the appellant to bring his appeal out of time and dismissed the appeal against conviction.[9]
[9] Groom v Police [2015] SASC 101.
As a consequence of the above history, the appellant claims that he is entitled to compensation from the respondent. He alleges that conduct by the various entities nominated has caused the respondent to be liable with respect to breach of duty of care; false imprisonment; and malicious prosecution.
The Master’s decision
The appellant feels aggrieved by the conduct of his former partner and by the way he has been treated by the various entities earlier referred to and the State. I agree with the Master’s observation[10] that “[the appellant’s] sense of grievance is real, but the Court is not in a position to determine whether or not it is justified”.
[10] Groom v The State of South Australia (Unreported, Supreme Court of South Australia, Master of the Supreme Court, 21 June 2016) at [12].
The Master ordered summary judgment in favour of the respondent on the basis that the appellant’s second statement of claim disclosed no reasonable basis for any of the claims made by the appellant.[11] In determining the matter in this way, the Master applied the approach identified by the Full Court in Ceneavenue Pty Ltd v Martin[12] (Debelle J with whose reasons, in this respect, Duggan and Anderson JJ agreed).
A comparison of the test in r 25.04 with the test in r 232(2)(b) readily discloses that the burden to be discharged by the defendant on an application under para (b) is lighter than the burden that had to be discharged under r 25.04. The reasoning in General Steel is, therefore, no longer applicable. I respectfully agree with Bleby J that the barrier to summary judgment on an application by a defendant has been lowered: JT Nominees Pty Ltd v Macks (2007) 97 SASR 471 at [61].
While there can be no doubt that para (b) has significantly lightened the burden for a defendant seeking summary judgment, two questions nevertheless remain. The first is what is meant by the expression “no reasonable basis” for the claim against the defendant and the second is whether the test is materially different from the test of a real question to be tried. The fact that the expression “no reasonable basis” is used in both paras (a) and (b) of r 232(2) suggests that the same test applies both when considering whether there is no reasonable basis for defending the plaintiff’s claim and when considering whether there is no reasonable basis for the claim against the defendant. The test in r 232(2) requires the court first to identify the issues to be tried and then to assess whether the claim or defence has reasonable prospects of success. In the case of an application for summary judgment by a plaintiff against a defendant, it is doubtful, therefore, whether there is a material difference between that test and the former test as it had been expressed in Fancourt. That is because the question whether there is a real question to be tried denoted that the task for the court was to determine whether the issues at the trial are real or fanciful and have reasonable prospects of success.
The question whether there is no reasonable basis for the claim or defence must be determined in a summary way. It is entirely inappropriate for there to be a mini trial on that question. It must, therefore, be evident or obvious that the party defending the application for summary judgment has no reasonable basis for the claim or the defence. While adversarial argument will assist in the determination of that question, the question should be capable of ready resolution without prolonged argument. A prolonged argument might suggest that there is a reasonable basis for the claim or the defence. Comparison with the requirements in rules in other jurisdictions providing for summary judgment confirms these propositions.
The Master was correct to take this approach and it is the approach to be adopted by this Court on appeal.
[11] Supreme Court Civil Rules 2006, r 232(2)(b).
[12] [2008] SASC 158; (2008) 106 SASR 1 at [80]-[82].
Alleged breach of duty of care by the actions of SAPOL
The appellant has alleged that the police officers when acting as prosecutors failed to properly investigate a number of allegations made by the appellant. The Master concluded that no duty of care arose as a matter of law when parties are in the relationship of prosecutor and accused. Accordingly, the Master found that no claim for negligence could be pursued.[13]
[13] Groom v The State of South Australia (Unreported, Supreme Court of South Australia, Master of the Supreme Court, 21 June 2016) at [22] and [23].
Alleged breach of duty by the actions of the DPP
The appellant has alleged that the DPP failed to report criminal acts allegedly committed against the appellant and that, whilst the appellant was on remand, “failed to implement proper SAPOL guidelines and investigate Court rulings showing discrepancies in procedure and evidence”.
The Master found that, as prosecutor, the DPP owes no duty of care to an accused and that it had no role to play in respect of the plaintiff’s incarceration at the Remand Centre.[14]
[14] Groom v The State of South Australia (Unreported, Supreme Court of South Australia, Master of the Supreme Court, 21 June 2016) at [25].
Alleged breach of duty of care by the actions of DCS
The appellant alleged that the DCS failed to allow the appellant “the basic right” of being able to prepare his defence to the restraining order while incarcerated. The appellant pleads that the DCS failed in this respect during the period 14 to 28 February 2012. However, the restraining order was overturned on appeal and the appellant, thereafter, consented to its confirmation on 10 December 2013. In these circumstances, the Master did not accept that any harm had been suffered. However, and in any event, there was no pleaded causal connection between any inability to prepare a defence and any loss.[15]
[15] Groom v The State of South Australia (Unreported, Supreme Court of South Australia, Master of the Supreme Court, 21 June 2016) at [26].
In addition, the appellant has alleged that the DCS failed to ensure his safety while he was incarcerated. The respondent accepted for the purpose of the argument that the DCS owed a duty to take reasonable care to prevent harm stemming from the unlawful activities of third parties.[16] However, the Master found that the appellant did not allege any assault or physical injury. No material breach of such a duty or any compensable loss was pleaded.
[16] Cf; New South Wales v Bujdoso (2005) 227 CLR 1 at [32].
Alleged breach of duty of care by the actions of the DFC
The appellant alleged that the DFC failed to investigate a report of sexual abuse of his child. The Master found that any such sexual abuse did not relate to the appellant in any relevant manner and that, accordingly, no duty of care was owed to him.
The Magistrates
The appellant alleges negligence on the part of several Magistrates. The Master concluded that a Magistrate enjoys judicial immunity by reason of statute[17] and that no material facts that might give rise to a claim against any Magistrate had been pleaded.[18]
[17] Magistrate Court Act 1991 (SA) s 44(1).
[18] Groom v The State of South Australia (Unreported, Supreme Court of South Australia, Master of the Supreme Court, 21 June 2016) at [36].
False Imprisonment
The appellant also claims that he was wrongly or unlawfully imprisoned. The Master characterised the appellant’s claim as one of false imprisonment and held that no action for false imprisonment can arise if it is as a result of an act of the Court.[19]
[19] Trotter v State of South Australia Action 357 of 1984, 27 November 1992, Zelling AJ.
Allegations of malicious prosecution
The Master concluded that material facts sufficient to make out a claim for malicious prosecution had not been pleaded.
Appellant’s grounds of appeal
The appeal is one by way of rehearing.[20] Nevertheless, in this case, the only issue to be decided is whether or not the Master was correct, as a matter of law, in finding that the allegations of fact pleaded in the appellant’s second statement of claim disclosed no reasonable basis for the appellant’s claims against the respondent. The Master did not exercise any discretion or make any findings of fact that would call for a review on a rehearing.
[20] Supreme Court Civil Rules 2006 r 286.
The appellant, by his grounds of appeal, in essence, contends that the Master erred in not finding that the respondent owed him a duty of care through the actions of the various entities complained of and in not finding that it breached such a duty of care. The appeal grounds are numerous and convoluted. Nevertheless, the appellant in his notice of appeal and in his submissions made on appeal, by and large, has sought only to re-argue his various grievances on the facts.
Consideration
The appellant in his second statement of claim complains that the respondent through its agents, SAPOL, the DPP, the DCS, the DFC and certain Magistrates, engaged in conduct by way of various asserted acts and omissions that were in breach of a duty of care owed to the appellant. The appellant does not specifically identify and plead any material facts said to give rise to a duty of care owed by the respondent by virtue of the nature of the parties’ relationship and the conduct of any of these entities.

The nature of the “relationship” between the appellant and each of these entities at a very general level can be inferred from the narrative pleaded. However, nothing in the facts identified and relied on by the appellant nor by virtue of any inference that might properly be drawn therefrom, serves to take him outside the usual case of a citizen who has come into contact with each such entity in the course of the ordinary conduct of their responsibilities. This is not to say that the appellant may not have been treated inappropriately on occasion, although I am not in a position to and do not make any finding to that effect. Rather, what is at issue here is whether, on the facts pleaded, there is a reasonable basis to find, as a matter of law, that each or any of the entities owed the appellant a duty of care in negligence. The Master was correct to find as his Honour did.
On the present state of the authorities, and as a general rule, neither SAPOL nor the DPP owe a citizen a duty of care in respect of prosecutorial[21] or investigative functions.[22] The appellant has not pleaded any facts which would serve to distinguish, in any material way, his situation from this general position.
[21] See for example, Cran v State of New South Wales [2004] NSWCA 92; (2004) 62 NSWLR 95 at [50], [54]-[57] and [63]-[64] (Santow JA), [66] and [77]-[79] (Ipp JA), and [84] (McColl JA).
[22] See for example, Sullivan v Moody [2001] HCA 59; (2001) 207 CLR 562 at [53], [55]-[57] and [60], Tame v New South Wales [2002] HCA 35; (2002) 211 CLR 317 at [24]-[27] (Gleeson CJ), [57] (Gaudron J), [231] (Gummow and Kirby JJ) and [298]-[299] (Hayne J), Cran v State of New South Wales [2004] NSWCA 92; (2004) 62 NSWLR 95. See also, Australian Capital Territory v Crowley [2012] ACTCA 52; (2012) 7 ACTLR 142 at [270]-[313].
The Master was correct to find that the appellant had not pleaded any reasonably arguable damage or causal connection with any possible damage said to arise from the alleged failure of the DCS to allow him access, between 14 and 28 February 2012, to his papers said to be necessary in order for him to defend the confirmation of the intervention order. Further, I agree with the submission of the respondent to the effect that any potential for compensable damage to have been causally connected to the alleged actions of the DCS in this respect will have been nullified when the intervention order was later set aside on appeal.
The appellant has not pleaded any material facts concerning the “relationship” between himself and the DCS in support of the implied allegation that he was owed a duty of care and much less as to the nature of any such duty, that is, the type of harm (physical, mental, pure economic) that might be encapsulated by any such duty.
The appellant also alleges that the DCS twice failed (in February and November 2012) to protect him from malicious and deliberately false information (as to the reasons he was incarcerated) entering the Remand Centre. This would imply a quite novel duty of care as to which no particulars in support are provided. No particulars of alleged acts of breach are provided. No particulars of any form of loss, compensable at law, or as to its causation are provided. The claim as pleaded is untenable.
The appellant also alleges that the DCS “failed to ensure [he] was not placed in the company of violent and career criminals” and “failed to ensure the safety of [the appellant] while incarcerated”. For present purposes it can be assumed (without deciding) that, in appropriate circumstances, the DCS might be found to owe a duty of care towards persons in its custody to take reasonable care to prevent the suffering of reasonably foreseeable physical, including consequential mental, harm. The appellant has failed to allege any particulars that would support a finding of breach of any such duty.
The Magistrate was correct to find that no duty of care was owed in relation to the DFC in the circumstances pleaded, and for the reason given by the Magistrate.
The Master was correct to find that the Magistrates with whom the appellant came into contact enjoy a statutory immunity from civil liability. Section 44(1) of the Magistrates Court Act 1991 provides:
A Magistrate or other person exercising the jurisdiction of the Court has the same privileges and immunities from civil liability as a Judge of the Supreme Court.
The immunity available to judicial officers in this State (including Magistrates) is intended not to protect the individual but to protect society. In Rajski v Powell[23] Kirby P (as his Honour then was) characterised the immunity and its rationale in this way.
It is a fundamental principle of our law that a judge of a superior court is immune from civil liability for acts done in the exercise of his judicial function or capacity. Such immunity rests, as it has been said upon considerations of public policy. Its object is not to protect judges as individuals but to protect the interests of society. The purpose of the rule is to preserve the integrity, independence and resolve of the judiciary and to ensure that justice may be administered by such judges in the courts, independently and on the basis of their unbiased opinion – not influenced by any apprehension of personal consequences.
Such is the importance of the rationale underlying the immunity that it will operate even in the face of allegations that a judicial officer has acted within jurisdiction but oppressively or maliciously.[24]
[23] (1987) 11 NSWLR 522 at 527-528.
[24] Anderson v Gorrie [1895] 1 QB 668 at 670-671 (Lord Esher M.R.), Rajski v Powell (1987) 11 NSWLR 522 at 528 (Kirby P).
The appellant has not pleaded any material facts that might serve to take the impugned conduct of the Magistrates in question outside the general rule.
The appellant has also alleged that he was falsely imprisoned. This complaint derives from two periods of incarceration in the Adelaide Remand Centre resulting each time from a refusal by a Magistrate to grant bail. The appellant contends that the withdrawal of the 31 charges in December 2013 demonstrates that there was “no proven basis” for the incarcerations such that he was, in effect, falsely imprisoned. However, the Magistrates in question exercised lawful authority, at the time, to refuse bail.[25] That lawful authority is not to be diminished or removed by a later determination that no underlying offence had been committed. In this case the appellant’s incarceration resulted from a court order and no action for false imprisonment will lie.[26]
[25] See generally, Part 3 of the Bail Act 1985 (SA).
[26] Trotter v State of South Australia, unreported Supreme Court of South Australia, judgment No. S3713, 27 November 1992; and on appeal Trotter v State of South Australia, unreported Supreme Court of South Australia (Full Court), judgment No. S4702, 28 July 1994.
The appellant also makes a claim for malicious prosecution, again, based on the 31 changes withdrawn. However, the charges were withdrawn as part of an agreement reached with the appellant for his consent to the confirmation of the intervention order.[27] The tort of malicious prosecution is comprised of the following four elements.[28]
(1) that proceedings of the kind to which the tort applies (generally, as in this case, criminal proceedings) were initiated against the plaintiff by the defendant;
(2) that the proceedings terminated in favour of the plaintiff;
(3) that the defendant, in initiating or maintaining the proceedings acted maliciously; and
(4)that the defendant acted without reasonable and probable cause.
[27] Groom v Police [2014] SASC 41 at [9]-[10] and [14]-[22].
[28] A v State of New South Wales [2007] HCA 10; (2007) 230 CLR 500 at [1].
The appellant has not pleaded any particulars of fact that would support findings in terms of elements (3) or (4). In any event, given the circumstances in which the 31 charges were withdrawn element (2) could not be satisfied.
Conclusion
The Master was correct to enter summary judgment. I would dismiss the appeal.
HINTON J: I would dismiss the appeal for the reasons given by Nicholson J.