Hatswell, Peter Leonard v State of Victoria and Anor (Ruling)
[2010] VCC 11
•8 February 2010
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
DAMAGES AND COMPENSATION LIST
GENERAL DIVISION
Case No. CI-08-04773
| PETER LEONARD HATSWELL | Plaintiff |
| v | |
| STATE OF VICTORIA | First Defendant |
| and | |
| CRAIG EVAN WATTS | Second Defendant |
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| JUDGE: | DAVIS |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 22 January 2010 |
| DATE OF RULING: | 8 February 2010 |
| CASE MAY BE CITED AS: | Hatswell, Peter Leonard v State of Victoria & Anor (Ruling) |
| MEDIUM NEUTRAL CITATION: | [2010] VCC 0011 |
| REASONS FOR RULING |
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Catchwords: PROCEDURE – Application for summary dismissal of claim against first defendant – r.23.01(1)(a) County Court Civil Procedure Rules 2008 – whether plaintiff’s statement of claim discloses a cause of action against the first defendant – s.23 Crown Proceedings Act 1958 – whether the first defendant is vicariously liable for the actions of the second defendant – s.123 Police Regulation Act 1958 – whether liability of the second defendant attaches to the State.
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr B. Penno | Frank A. Sanna |
| For the First Defendant | Mr S. Wotherspoon | Victorian Government Solicitors Office |
| HER HONOUR: |
1 In this application made on summons issued on 24 December 2009, the first defendant applies to have the plaintiff’s claim against it summarily dismissed pursuant to rule 23.01(1)(a) of the County Court Civil Procedure Rules 2008 (“the Rules”). The first defendant also seeks judgment and costs of the application and of the proceeding. The application is supported by an affidavit of Leah Ahava Bloch sworn on 24 December 2009.
The proceeding
2 The second defendant is a member of Victoria Police. As against the second defendant the plaintiff alleges the commission of two torts: that of malicious prosecution[1] and that of misfeasance in public office.[2] The first defendant is said to be vicariously liable for those torts (pursuant to the provisions of s.23 of the Crown Proceedings Act 1958 (“the Crown Proceedings Act”) and/or to be solely responsible for them pursuant to s.123 of the Police Regulation Act 1958 (“the Police Regulation Act”) in the event it is found that the second defendant acted necessarily or reasonably in good faith in the course of his duty as a member of the Victoria police.[3]
[1] See paragraphs 3-6 and 12 of the Amended Statement of Claim.
[2] See paragraphs 7-12 of the Amended Statement of Claim.
[3] See paragraph 17 of the Amended Statement of Claim.
3 The malicious prosecution claim arises out of the initiation and maintenance by the second defendant of criminal proceedings against the plaintiff from 30 November 2005 until they were terminated in the plaintiff’s favour on 30 May 2006 [4] when the police prosecutor applied for the charge to be withdrawn. The misfeasance in public office claim concerns the second defendant’s investigation and prosecution of the criminal proceeding.
[4] This was the date of the contested hearing of the charge.
4 The criminal proceedings comprised a charge of unlawful assault against the plaintiff. The circumstances of the assault were briefly described by counsel for the plaintiff. The plaintiff’s son was suspended from school. The plaintiff felt the suspension was unjustified and decided to send his son to school and to talk to the principal. His son arrived at school and was made to wait in the vice-principal’s office. The vice-principal was Graham Rawson. The plaintiff arrived at the school demanding that his son be released into his care, but his request was refused. There was an altercation between the plaintiff and Mr Rawson, in which they pushed each other. The plaintiff said he was first pushed by Mr Rawson and then pushed him in self-defence for the purpose of getting access to his son. The plaintiff was charged with assaulting Mr Rawson. There were student witnesses who saw the incident. According to counsel for the plaintiff, the existence of those witnesses was brought to the attention of police but their statements were not obtained until December 2005, some time after the second defendant signed the charge sheet. The second defendant was a local police officer and the President of the School Council. The plaintiff told police prosecutors about the student witnesses at the court mention of the case in February 2006, but the charge was only withdrawn at the commencement of the contested hearing at the Moe Magistrates’ Court on 29 May 2006.
Submissions
5 The first defendant submitted that it is not vicariously liable for the actions of the second defendant. It relied on a number of authorities[5] for the principle that a member of the police force who investigates and prosecutes the commission of a criminal offence is exercising an independent discretion and is not acting as the Crown or representing the Crown and therefore the State is not liable under s.23 of the Crown Proceedings Act for tortious conduct of police officers when exercising their independent discretion. On this basis, it was submitted that there is no serious question to be tried as between the plaintiff and the first defendant and the proceeding on this issue should be summarily dismissed.
[5] See Enever v R (1906) 3 CLR 969 at (977); A-G for New South Wales v the Perpetual Trustee Company Ltd (1952) 85 CLR 237 at 252; Jarratt v Cmr of Police (NSW)(2005) 224 CLR 44 at 70; Victoria v Horvath (2002) 6 VR 326 at 350; Kirkland-Veenstra v Stuart (2008) 177 IR at 2; and Kirsch v Dolman (2001) 123 A Crim R 331 at 337; and Bannerman v State of Victoria and Anor [2009] VSC 438.
6 The first defendant also submitted that any statutory liability of a police officer pursuant to s.123(2) of the Police Regulation Act can only be transferred to the State if the police officer’s conduct is done in good faith; in other words, with honesty of purpose. An element of the cause of action for malicious prosecution involves demonstrating that the second defendant did not have an honest belief in instigating or continuing the criminal proceedings[6]. In this case, the plaintiff pleads that the second defendant knew that the plaintiff did not commit the criminal offence he had been charged with and that the second defendant had an ulterior purpose in bringing the charge, which was to injure and damage the plaintiff. It was submitted that the states of mind pleaded by the plaintiff are inconsistent with those of a police officer showing honesty of purpose. Counsel relied on the decision of Horvath where all parties and both the Trial and Appellate Courts accepted that a finding of malicious prosecution against a police officer would not enliven s.123 of the Police Regulation Act. It was submitted that even assuming that the plaintiff can make out the malicious prosecution allegations against the second defendant, it is inconceivable that s.123 could be engaged to transfer liability to the State.
[6] See A v New South Wales [2007] 230 CLR 500 at 527.
7 Similarly, it was submitted, the state of mind essential to the tort of misfeasance in public office, that is, demonstration that the public officer knowingly acted in excess of power, is inconsistent with a police officer displaying honesty of purpose. For this reason, s.123 could not be engaged to transfer liability to the State.
8 The application was resisted on a number of grounds. It was submitted on behalf of the plaintiff that the application for summary dismissal was premature, and that the issues raised should be determined at trial once all the evidence has been heard.
9 Counsel relied on the decision of the Court of Appeal in Horvath, which considered the expression anything necessarily or reasonably done or omitted to be done in good faith in the exercise of his or her duty[7] and determined that it should be read as a whole and that the member’s conduct is to be viewed from his perspective at the time. On this basis, the proper test was whether, “having regard to all of the circumstances existing at the time and, viewed from the perspective of the member, reasonable grounds existed for the adoption of the chosen course”. The Court of Appeal noted [8]
In all save a few cases, it would be anticipated that police members acting honestly or in good faith in the course of their duties would be regarded as satisfying this test and therefore as acting necessarily or reasonably within the meaning of the section.
[7] See paragraphs 41-52.
[8] at paragraph 50.
10 Counsel submitted that at trial a court may be satisfied on the evidence that the second defendant believed he was acting appropriately in laying and continuing to prosecute the charge. If this conclusion were reached at trial, it was submitted, liability would attach to the State under s.123(2) of the Police Regulation Act. Counsel relied on the case of Jason Robert Bannerman v State of Victoria and Michael Logan[9] where Justice Williams found[10] that the police member who believed it was necessary to spray Mr Bannerman with capsicum spray to protect himself, acted in good faith in the all the circumstances, and therefore that liability for his actions attached to the State under s.123(2) of the Police Regulation Act.
[9] [2009] VSC 438.
[10] at paragraph149.
11 It was also submitted that there was a “good prospect” that the State would remain involved in the proceeding in any event because the police prosecutor and the “Department” (presumably by this he meant the Office of Public Prosecutions) were also involved in the conduct complained of (maintaining the proceeding and causing it to go to a contested hearing).
Reasons
12 I consider that the application should succeed for the following reasons.
13 An application for summary dismissal requires the Court to accept the factual allegations made by the plaintiff and determine the question of law on those facts[11]. No affidavit material was filed or tendered by the plaintiff. At the commencement of the hearing, I gave counsel for the plaintiff the opportunity to seek an adjournment in order to file any additional material in support of his submissions, but he elected to proceed. I raised the matter again at the conclusion of the hearing and gave the parties time for discussion.
[11] Webster v Lampard (1993) 177 CLR 598, 604 (Mason CJ, Deane and Dawson JJ).
14 On the authorities, a proceeding may be determined summarily where a claim is “so obviously untenable that it cannot possibly succeed”[12]. This is the case even where extended argument is needed, provided the court is able to reach a clear conclusion that the claim is not maintainable. A defendant is entitled to have a claim dismissed against it if the claim is bound to fail having regard to the uncontested facts [13]
[12] Burton v President, etc, of the Shire of Bairnsdale (1908) 7 CLR 76 at 98.
[13] Riches v Director of Public Prosecutions [1973] 2All ER 935 at 942.
15 The first defendant is entitled to bring the application, and, absent any application for it to be adjourned, I am required to determine it on the basis of acceptance of the facts pleaded by the plaintiff.
16 Secondly, I consider that the state of mind ascribed to the second defendant by counsel for the purpose of his submissions is completely inconsistent with the case pleaded by the plaintiff. On the case pleaded by the plaintiff, there is no suggestion of an error of judgment by a police member acting honestly but holding an erroneous belief. In fact, the particulars of malice set out in the Amended Statement of Claim at paragraph 5(a) to (h) are to the opposite effect. They include allegations that the second defendant knew that the plaintiff had not committed the alleged offence; that he deliberately failed to interview a witness identified by the plaintiff prior to laying the charge and delayed that interview until after the proceeding had been initiated; that he failed to disclose the existence of the statement of the witness when called upon to disclose the police brief of evidence and relevant evidentiary materials; that he initiated the proceeding for an improper purpose prior to completing a thorough investigation; and that he initiated the proceeding with the intention of causing injury and damage to the plaintiff (particular (h)).
17 A similar observation may be made of the particulars of want of reasonable and probable cause which are set out in paragraph 6(a) to (i) of the Amended Statement of Claim, which include allegations that in the circumstances[14] the second defendant knew prior to initiating the proceeding that evidence was available to establish that the plaintiff was not guilty of the charge; that he failed to conduct a proper and fair investigation of the charge; and that the prosecution was maintained in order to justify the improper conduct of the second defendant in charging the plaintiff in the first place (particular 6(j)).
[14] See particulars (d)–(g).
18 On the case pleaded by the plaintiff, there is in my opinion no basis for concluding that the second defendant acted “necessarily or reasonably….in good faith in the course of his duty” as a member of the force. Particulars 5(h) and 6(j) are in my view completely inconsistent with the submission that the second defendant’s conduct could be viewed as an error of judgment and thereby be found to be conduct in good faith for the purpose of the transfer of liability to the State.
19 Thirdly, in a claim for malicious prosecution, the plaintiff must prove, in relation to the criminal proceedings brought against him which were terminated in his favour, that the defendant initiated or maintained those proceedings for the sole or a dominant purpose other than the proper invocation of the criminal law (maliciously) and without honestly forming the view that there was a proper case for prosecution or forming the view on an insufficient basis (without reasonable and probable cause)[15]. In this proceeding, the particulars of malice and of absence of reasonable and probable cause which are pleaded by the plaintiff and upon which determination of this application depends, are completely inconsistent with a finding of conduct in good faith such as would attract the transfer of liability to the State under s.123(2) of the Police Regulation Act. I consider that on the pleadings, assuming the claim of malicious prosecution is made out, there is no basis for concluding that the second defendant could bring himself within s.123(2) of the Police Regulation Act so as to transfer liability to the first defendant. The same conclusion can be reached in relation to the claim of misfeasance in public office.
[15] A v State of New South Wales.
20 I note that in Horvath the Court of Appeal agreed with the trial judge that the malicious prosecutions brought by the police were not brought in good faith and therefore s.123 would have no operation in relation to any liability arising from their conduct.
21 Finally, I note that the Amended Statement of Claim (which was drawn by counsel who appeared on behalf of the plaintiff in this application) does not specifically allege tortious conduct by any person other than the second defendant[16]. I therefore reject the final submission made on behalf of the plaintiff to the effect that the application should be dismissed because it is likely that the State, through persons other than the second defendant, will remain involved in the proceeding.
Conclusion
[16] I note that particular (j) of paragraph 6 refers to the “maintenance and continuation of the prosecution” but does not specify by whom.
22 I consider that the plaintiff’s claim against the first defendant should be dismissed. I will reserve the question of costs and the form of final orders to be made on this application.
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