Hatswell v State of Victoria (No 2)
[2010] VCC 579
•3 June 2010
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
APPLICATIONS
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: | HIS HONOUR JUDGE MISSO |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 28 May 2010 |
| DATE OF RULING: | 3 June 2010 |
| CASE MAY BE CITED AS: | Hatswell v State of Victoria & Anor (No 2) |
| MEDIUM NEUTRAL CITATION: | [2010] VCC 0579 |
RULING
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Catchwords: PRACTICE - application for summary dismissal of claim against the second defendant – County Court Civil Procedure Rules 2008, Rule 23.01(1)(a) – whether plaintiff’s Statement of Claim discloses a cause of action against the second defendant - whether the pleading of a claim of malicious prosecution disclosed to cause of action – whether the criminal prosecution had been terminated favourably to the plaintiff – whether the pleading of a claim of misfeasance in public office disclosed a cause of action – whether a police officer investigating the commission of a criminal offence occupies a public office.
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr B Penno | Mr F Sanna |
| For the Defendants | Mr B Wotherspoon | Victorian Government Solicitor’s Office |
| HIS HONOUR: |
Introduction
1 By a Summons filed 4 May 2010, the second defendant applied to have the plaintiff’s proceeding summarily dismissed pursuant to Rule 23(01) of the County Court Civil Procedure Rules 2008.
2 The Summons was supported by an affidavit sworn by Leah Ahava Bloch, solicitor, and five exhibits.
3 Mr S Wotherspoon of counsel appeared for the second defendant/applicant and Mr B Penno of counsel appeared for the plaintiff/respondent.
4 The first defendant is no longer a party to this proceeding. An application was made to this Court previously which was heard by her Honour Judge Davis who made orders dismissing the plaintiff's proceeding.[1]
[1] Hatswell v State of Victoria & Anor [2010] VCC 11
The Plaintiff's Pleadings
5 Following the Ruling made by her Honour Judge Davis, the plaintiff filed an Amended Statement of Claim on 10 December 2008.
6 The pleadings reveal that the plaintiff has limited his case to an allegation against the second defendant that, firstly, the prosecution of the plaintiff instigated by the second defendant was malicious, and, secondly, that the second defendant occupied a public office and that the prosecution amounted to misfeasance in that public office.
Malicious Prosecution
7 The elements of the cause of action for malicious prosecution are, firstly, the institution of a criminal proceeding; secondly, termination of the proceeding in favour of the plaintiff; thirdly, an absence of reasonable and probable cause for the institution of the criminal proceeding, and, lastly, that the primary purpose in instituting the criminal proceeding was malice.
8 In paragraph 4 of the Amended Statement of Claim, the plaintiff pleads that the prosecution of the charge of unlawful assault was terminated in his favour.
9 The submissions made by Mr Wotherspoon and Mr Penno focused upon the orders made by the learned Magistrate who heard the charges brought against the plaintiff.
10 The proceeding before the learned Magistrate commenced on 29 May 2006 and concluded on 30 May 2006. The plaintiff was presented by Charge and Summons dated 30 November 2005.
11 The plaintiff was charged with unlawful assault (Charge 1); offensive behaviour (Charge 2); use threatening words (Charge 3), and breach of the peace (Charge 4).[2]
[2] Exhibit LAB-1 to the affidavit of Ms Bloch
12 Exhibit LAB2 to the affidavit of Ms Bloch are cassette tapes of the proceeding before the learned Magistrate, and Exhibit LAB-3 is a transcript prepared by a transcription service produced from the cassette tapes. Mr Penno accepted that the cassette tapes and the transcript were an accurate record of the proceeding before the learned Magistrate.
13 In paragraph 14 of Ms Bloch's affidavit, she reproduced the relevant portion of the reasons delivered by the learned Magistrate:
"I find Charges 2 and 3 proved. In respect of Charge 4, there is no evidence, nor any reasonable inference to be drawn as to Mr Hatswell’s actual intention on entering the school premises or the office area capable of supporting this charge. It is dismissed. Now Charges 1 and 2, although I find each proved, Charge 2 is in terms of offensive behaviour which is capable in my view of in fact encompassing both the pushing action of Mr Hatswell and the language used by Mr Hatswell to Mr Chandler."
14 In paragraph 15 of Ms Bloch's affidavit, she also reproduced what occurred in a subsequent exchange between the learned Magistrate and Senior Constable Farmer, who prosecuted the proceeding. As a result of that exchange, the prosecutor was informed by the learned Magistrate that the assault charge was proved, but that the prosecutor should withdraw it because it was encompassed in the charge of offensive behaviour.
15 It is beyond question that the learned Magistrate found the charge of assault proved. The fact that it was withdrawn because the learned Magistrate considered that it was encompassed by the evidence of the charge of offensive behaviour is not to the point.
16 Mr Wotherspoon referred me to Cameron v James.[3] In that case, the accused was charged on information with one count of using insulting words in a public place pursuant to section 199 of the Police Offences Act 1928.
[3] [1945] VLR 113 at 116-117
17 The charge was found proved before the Court of Petty Sessions, which disposed of the charge by dismissing it pursuant to section 72 of the Justices Act 1928 which provided that if the Court considered that the offence was so trifling that it was inexpedient to inflict any punishment other than a nominal punishment, it could dismiss the information. This is in fact what the Court did.
18 The Register of the Court disclosed that the information had been dismissed pursuant to section 72 of the Justices Act 1928.
19 Herring, CJ and Duffy, J held that it was to be inferred that such a dismissal meant that the charge was proved. After reciting well-established law that a claim based upon malicious prosecution could not succeed unless the plaintiff established that the proceedings terminated in favour of the plaintiff, they then concluded that in no relevant sense had the proceeding terminated in favour of the plaintiff.
20 Mr Wotherspoon referred me to a number of other authorities and authoritative texts in which the same proposition is repeated, and in which Cameron v James (supra) has been cited with approval. In my opinion, it is unnecessary for me to go beyond Cameron v James.
21 The certified extract of the register of the Magistrates’ Court at Moe is consistent with the way in which the learned Magistrate disposed of proceeding. The entry relating to the charge of unlawful assault reads:
"Withdrawn
ENCOMPASSED BY CHARGE 2."
22 The certified extract, in relation to the charge of offensive behaviour, reads:
"BEHAVIOUR AND ENCOMPASSES THE PUSHING OF ASSISTANT
PRINCIPAL, MR RAWSON
AND THE LANGUAGE USED BY THE DEFENDANT TOWARDS MR
CHANDLER.
Without conviction, fined $2000 as part of an aggregate order."
23 Furthermore, the charge of use threatening words was described as part of the aggregate order, in other words, the learned Magistrate lumped together the charges which were proved and imposed a fine without conviction in disposing of all of the charges.
24 The fact that the charge of unlawful assault was found proved establishes that there was reasonable and probable cause to justify the prosecution of the plaintiff.
25 Mr Penno submitted that the mere fact that the charge of unlawful assault was withdrawn is enough to demonstrate that the proceeding was terminated in favour of the plaintiff.
26 I reject that submission. It ignores the finding made by the learned Magistrate, that the charge of unlawful assault was found proved, the effect of Cameron v James (supra), and the fact that the Register of the Magistrates’ Court at Moe reflects precisely what the Magistrate intended to do in having the charge of unlawful assault withdrawn, because it was encompassed in the charge of offensive behaviour.
27 Therefore, the pleading cannot be sustained and must be struck out as failing to disclose a cause of action.
Misfeasance in Public Office
28 The elaborate pleading of the plaintiff's claim that the second defendant is guilty of misfeasance in public office concludes in paragraph 12, where the plaintiff alleges that the conduct of the second defendant resulted in a false and malicious prosecution of the plaintiff.
29 That part of the pleading is supported by particulars of malice sub-joined to paragraph 8, which are the same allegations of malice relied upon by the plaintiff in the claim that he was the subject of a malicious prosecution by the second defendant.
30 The allegations of malice cannot be sustained for the very same reasons which I have given for concluding that the claim of malicious prosecution is unsustainable. The simple fact is that there was no malice given that the learned Magistrate found, that the relevant charge of unlawful assault was proved.
31 The claim fails for another reason, and that is, that it is a long bow to plead that a police officer, in the ordinary course of policing duties, can be said to occupy a public office, and even if he did, that receiving a complaint, laying charges and having the matter heard before a Magistrate amounts to misfeasance in public office.
32 In Cannon v Tahche,[4] the Victorian Supreme Court of Appeal reviewed the law relevant to the nature and elements of the tort, and concluded:
“Nevertheless, for present purposes, it can be said that it is relatively clear, on the authorities to which reference is made below, that the tort is essentially concerned with the abuse by the holder of a public office of a public power or one which must be exercised for the ‘public good’, and which is attached to the office. (We will refer to the power as ‘the relevant power’.) It is a deliberate tort for which the defendant is personally liable and, relevantly, one of its essential constituents is malice in the sense explained later. Moreover, in order to succeed in an action founded on the tort, the plaintiff must establish that he or she is a member of the public to whom the defendant owed a duty to exercise the power legitimately, namely, only in the public interest and not for an ulterior purpose. For reasons which become apparent later, although the tort is ordinarily concerned with executive or administrative powers, it seems that it also operates in respect of the exercise of a judicial power; at least in certain contexts.”[5]
[4] [2002] 5 VR 317
[5] at 16
33 After reviewing a number of authorities relevant to the determination of whether a person is the occupier of public office it observed:
“Where the occupier of a public office is required to discharge duties and the public has an interest in their discharge, powers that are necessary to perform those duties are commonly attached to the office. Similarly, where it is established that a position or office has relevant powers attached to it, it is almost invariably the case that they must be exercised only so as to enable its occupier to perform the public duties of the office. Hence, it is not surprising that, in speaking of the hallmarks of a public office within the meaning of the tort, courts have sometimes spoken in terms of public duties, and sometimes in terms of relevant powers, and on other occasions, in terms of both public duties and relevant powers. In addition, courts have also referred in that context to other circumstances which tend to indicate that the position is a public office, such as the public source of the funding of the office. Thus, in Farrington, Smith J spoke in a single sentence of the two policemen having ‘powers and duties’. Similarly, in Henly, Best CJ recognised that the public officer who is required to discharge the duties of the office in the public interest also has relevant powers which attach to that office. His Lordship spoke of a public officer who has supposedly ‘abused his office’ and an office is ordinarily ‘abused’ for relevant purposes only if the powers of that office are exercised otherwise than in the public interest as, for example, where they are exercised for an ulterior purpose. Likewise, in Tampion v Anderson, when the Full Court spoke of the duties of the office holder to members of the public as to how the office would be exercised, it did so in the context of recognising in the very next passage of its judgment that the tort is concerned with the abuse of the office and the purported exercise of statutory or common law powers which are ‘incident to such an office’.”[6]
[6] at paragraph 52
34 Mr Wotherspoon referred me to Munday v Gill[7] and Kirsch v Dolman,[8] both of which demonstrate that the institution of a prosecution for a summary offence is between subject and subject and that a police officer doing so is not acting for or on behalf of the Crown.
[7] (1930) 44 CLR 28 at 86, per Dixon J
[8] (2001) 123 A Crim R 331 at 337, per Gillard J
35 The pleadings do not demonstrate any basis upon which it can be said that there were characteristics in what the second defendant undertook which are consistent with him occupying a public office. The pleadings merely disclose that he was undertaking the work of a police officer receiving a complaint, laying charges and having the matter heard before a Magistrate.
36 If the second defendant did occupy a public office, so would every parking officer, municipal officer, park ranger and other persons employed to enforce laws regulating public order. That cannot be the case. It is clear that the authorities distinguish certain hallmarks as the test which is not present in the role undertaken by the second defendant.
37 Mr Wotherspoon also made submissions relevant to the damages which can be awarded where it is proved that there has been misfeasance in public office. It is unnecessary for me to analyse that submission because the plaintiff’s claim is unsustainable for the foregoing reasons.
Conclusions
38 It is for the reasons set out above that I have concluded that the pleadings do not disclose a cause of action.
39 Therefore, I propose to dismiss the plaintiff's proceeding and to enter judgment for the second defendant with costs, however, I propose to give Mr Penno an opportunity to address me on whether there is any basis upon which I should grant leave to the plaintiff to file and serve a Further Amended Statement of Claim.
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