Ives v The State of Western Australia [No 6] - [2012] WASC 189

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: IVES -v- THE STATE OF WESTERN AUSTRALIA [No 6] [2012] WASC 189

CORAM: LE MIERE J

HEARD: 14 MAY 2012

DELIVERED : 7 JUNE 2012

FILE NO/S: CIV 1069 of 2010

BETWEEN: BENJAMIN WILLIAM IVES
Plaintiff
AND
THE STATE OF WESTERN AUSTRALIA
Defendant

Catchwords:

Practice and procedure - Interrogatories - Leave to administer - Objections - Turns on own facts

Legislation:

Police Act 1892 (WA)
Restraining Orders Act 1997 (WA)

Result:

Leave to administer interrogatories allowed in part

Category: B

Representation:

Counsel:

Plaintiff: In person
Defendant: Mr C S Bydder

Solicitors:

Plaintiff: In person
Defendant: State Solicitor for Western Australia

Case(s) referred to in judgment(s):

Nil

LE MIERE J: The plaintiff has applied for leave to administer interrogatories contained in a minute of proposed interrogatories dated 10 April 2012. The defendant opposes leave being granted to the plaintiff to administer any of the interrogatories.

The issues in the action

The case pleaded by the statement of claim is as follows. At 6.00 pm on 31 December 2009 Sergeant Skehan and at least four other police officers attended the plaintiff's parents' home in Claremont. Sergeant Skehan spoke to the plaintiff's brother‑in‑law, his sister and their three children and to the plaintiff's mother the following words:
Ben Ives has sent his ex‑girlfriend emails threatening to rape, kill and chop her body into little pieces.
Sergeant Skehan and the other police officers proceeded to request from Mrs Ives permission to search the house for weapons. Mrs Ives granted permission and a search was conducted. In their natural and ordinary meaning the words spoken by Sergeant Skehan meant and were understood to mean that the plaintiff had emailed threats to rape and murder and cut into pieces the body of a person the plaintiff had been in a relationship with. Further, the plaintiff pleads that by way of innuendo the words spoken by Sergeant Skehan were understood to mean that the plaintiff had committed breaches of a violence restraining order protecting his ex‑girlfriend, Ms Lim, from the plaintiff and would be brought into custody as a result, when found, and spend time in jail. At all material times Sergeant Skehan and the other police officers were members of the police force and their actions were done by them as members of the police force while performing or purporting to perform the functions of a member of the police force and the defendant is liable for their actions. A party was being held at the plaintiff's parents' house during the search. During the search the police officers said to friends and family of the plaintiff, who were attending the party, words to the effect that the words spoken by Sergeant Skehan to the plaintiff's brother‑in‑law and others referred to above were true. The plaintiff claims he has been defamed by the words spoken and claims damages including aggravated damages.
The defendant admits that Sergeant Skehan and a police constable, and shortly after two further police officers, attended the plaintiff's parents' home. The defendant says that that occurred in the following circumstances. On 1 December 2008 pursuant to the Restraining Orders Act 1997 (WA) the Magistrates Court made an interim violence restraining order, effective for two years, for the benefit of Ms Lim, imposing restraints on the activities and behaviour of the plaintiff, including prohibiting him from communicating or attempting to communicate with Ms Lim. On 31 December 2009 Ms Lim attended the Perth Police Station reported to a police officer that the plaintiff had made an internet posting that included threats of violence, that Ms Lim had obtained the restraining order, and Ms Lim had previously been in a relationship with the plaintiff. Ms Lim provided to the police officer a printout of the internet posting. The substance of Ms Lim's report was communicated, and a copy of the printout provided, to Sergeant Skehan who was the 'On Road Supervisor' for the shift that afternoon. Sergeant Skehan verified that the violence restraining order was in force. Sergeant Skehan decided to try to interview the plaintiff and to check for the presence of firearms at the plaintiff's address last known to the police. The defendant denies that Sergeant Skehan spoke the words complained of and sets out the substance of what the defendant says Sergeant Skehan said. The defendant says that Sergeant Skehan and another police officer searched the house after receiving permission from the plaintiff's mother. The defendant denies that the words complained of bear the meanings alleged by the plaintiff. The defendant admits that in carrying out the conduct pleaded in the defence, Sergeant Skehan and the other police officers were performing the functions of a member of the police force and that pursuant to s 137 of the Police Act 1892 (WA) the defendant is liable for any such conduct constituting a tort but denies that they carried out the actions alleged in the statement of claim. The defendant admits that there were a number of people in one room of the house during the search but denies that the police officers said to the persons present the words alleged in the statement of claim.
The defendant pleads that any statements made by Sergeant Skehan to the plaintiff's mother, and overheard by the plaintiff's family, were made on an occasion of qualified privilege. The defendant pleads that if the words alleged to have been spoken were spoken and bear the meanings alleged in the statement of claim then they were substantially true. The defendant's in his particulars of truth says that the plaintiff was the author of, and made the internet posting, that it contained threats to rape and kill Ms Lim and to smash her body to pieces and Ms Lim had read the internet posting.
Further, or alternatively the defendant pleads that the only imputation which arises from the words spoken by Sergeant Skehan is that the plaintiff made threats through an electronic medium received by an ex‑girlfriend that he would cause her serious harm or, alternatively, that the plaintiff would rape and kill her and smash her body to pieces.
The defendant pleads that those imputations are substantially true. The defendant's particulars of justification include that the plaintiff made the internet posting, that Ms Lim had read the internet posting, and that the internet posting contained threats that the plaintiff would cause Ms Lim serious harm or alternatively that he would rape and kill her and smash her body to pieces.
The defendant pleads further, or in the alternative, that the only imputations which arise from the words complained of are that the plaintiff was reasonably suspected by Sergeant Skehan, or alternatively by police officers, of having made an internet posting to a female containing threats that the plaintiff would cause serious harm to the female; or alternatively that the plaintiff would rape and kill the female and smash her body to pieces.
The defendant pleads that each of those imputations is true. In support of that plea the defendant repeats the earlier particulars of justification.
In support of its innuendo meaning, the defendant pleads that there had been threatening behaviour by the plaintiff towards a person for whose benefit a violence restraining order had been made imposing restraints on the activities and behaviour of the plaintiff; or alternatively the plaintiff was reasonably suspected by Sergeant Skehan, or alternatively by police officers, of threatening behaviour towards a person for whose benefit a violence restraining order had been made imposing restraints on the activities and behaviour of the plaintiff. The defendant says that each of those imputations is substantially true. In support of that plea the defendant repeats its earlier particulars of justification.
The defendant further pleads that the imputations pleaded in the statement of claim, if made out, do not further harm the reputation of the plaintiff because of the substantial truth of the imputations pleaded by the defendant. The defendant further pleads that if the plaintiff has suffered damage as alleged in the statement of claim that damage did not occur as a result of the publication complained of.
The plaintiff has been given leave to file a reply. The reply will deny that the words complained of in the meanings alleged by the plaintiff or the defendant are true. In relation to the particulars of justification given by the defendant the plaintiff says:
(a)The internet posting was not communicated directly to Ms Lim at all, was directed towards an anonymous blogger who proclaimed to be the devil, and was in response to several communications directed towards the plaintiff over many months.
(b)The internet posting does not contain any threats described or at all.
(c)The internet posting is obvious satire.
The plaintiff further says that the Claremont address to which Sergeant Skehan and the police officers went was not his last known address in support of which assertion the plaintiff says:
(i)The plaintiff has never lived there.
(ii)The plaintiff was arrested twice for breaching the restraining order protecting Ms Lim during late 2009 due to complaints made by Ms Lim from his bedroom dormitory at Murdoch student village which was his true address.
(iii)The plaintiff was visited twice to drop off documents during late 2009 at Murdoch student village which was his true address.
(iv)At the time of the speaking of the words complained of the plaintiff was on bail to his address at Murdoch student village.
In relation to the defence of qualified privilege the plaintiff pleads a number of assertions. Relevant to this application the plaintiff says that it is to be inferred from the facts that Sergeant Skehan did not subsequently search the plaintiff's own home and did not subsequently question the plaintiff that it was not in the public interest in the circumstances for the words complained of to be published.

The interrogatories

I will consider each of the proposed interrogatories in turn.

Interrogatory 1

1.Was the plaintiff ever questioned at all by WA Police regarding the words complained of, or the complaint made by Joyce Lim which caused the publication of the words complained of?

The defendant objects to the interrogatory on the ground that it does not relate to any matter in question between the parties as they are identified by the pleadings.
The right to interrogate is not confined to facts directly in issue, but extends to any facts the existence or non‑existence of which is relevant to the existence or non‑existence of the facts directly in issue.
This interrogatory is relevant to the plaintiff's plea in his proposed reply that he was not questioned about Ms Lim's complaint and it therefore relates to a matter in question between the parties. The interrogatory will be allowed.

Interrogatory 2

2.[to be answered by Sergeant Skehan] Why wasn't the plaintiff pursued / apprehended / located by you due to Joyce Lim's complaint, on leaving 16 Lakeway Road Claremont on 30/12/09?
a.Did you speak the words complained of before or after you were told the plaintiff was not present?
b.When were you told the plaintiff didn't live at the plaintiff's parent's house?
c.Why didn't you seek to have the plaintiff's own home searched?

This interrogatory really contains four interrogatories or questions. The first is why was not the plaintiff pursued, apprehended/located on leaving the Claremont house. In the circumstances of this case and on the pleadings it is oppressive to ask Sergeant Skehan why he did not do those things. The second question is contained in interrogatory 2a. It is impermissible because it assumes that Sergeant Skehan spoke the words complained of and that he was told the plaintiff was not present. An interrogatory may not contain an assumption of any fact in question. Interrogatory 2b impermissibly contains an assumption that Sergeant Skehan was told the plaintiff did not live at his parents' house. Interrogatory 2c impermissibly assumes that Sergeant Skehan did not seek to have the plaintiff's own home searched. Furthermore, it is oppressive insofar as it asks why Sergeant Skehan did not do something. I will not allow the interrogatory.

Interrogatory 3

3.[to be answered by Sergeant Skehan] How thorough was the search of the house at 16 Lakeway Road Claremont?

Interrogatories as to matters of opinion are often not allowed because they are unnecessary or oppressive. This interrogatory is oppressive. It requires the person answering to form an opinion as to what constitutes a thorough search and how the search conducted at the Claremont house compared with such a search. It will not be allowed.

Interrogatory 4

4.Were police ever concerned that the plaintiff kept guns or weapons at his own house, if so ‑ or if not ‑ why was a search of the plaintiff's own home not conducted?

This interrogatory contains two interrogatories or questions. The first is whether the police were ever concerned that the plaintiff kept guns or weapons at his house. In the circumstances of this case the interrogatory is oppressive because it requires the person answering to form an opinion as to what constitutes being concerned and whether the state of mind of any particular police officer, or the police force collectively, held such a concern. The second part of the interrogatory ‑ why was the search of the plaintiff's own home not conducted ‑ is oppressive in the circumstances of this case in that it requires the answerer to form an opinion as to the reasons why something was not done. The interrogatory impermissibly assumes that the Claremont house was not the plaintiff's own home, or at least that the police knew it was not. It will not be allowed.

Interrogatory 5

5.[To be answered by Nathan Ross] Why didn't you organize a search of the plaintiff's room at Murdoch University?

This interrogatory is oppressive. It requires the person answering to formulate reasons why something was not done. Furthermore, it is not apparent why it is relevant for Nathan Ross to answer the question. It will not be allowed.

Interrogatory 6

6.[to be answered by Sergeant Skehan & Nathan Ross] Did WA Police determine if the plaintiff's parents had licenses to keep firearms at the property?

This interrogatory does not relate to any matter in question in the action and is oppressive. Whether or not the plaintiff's parents had licences to keep firearms at the property or whether the police made any enquiries about that or any determination in relation to it does not relate to any matter in issue in the action. It will not be allowed.

Interrogatory 7

7.[to be answered by Sergeant Skehan] What would you have done if you had found a gun at 16 Lakeway Road Claremont?

This interrogatory is oppressive. It requires Sergeant Skehan to form an opinion, or speculate, what he would have done had he found a gun at the property. It will not be allowed.

Interrogatory 8

8.Have police ever sought to explain their actions re the speaking of the words complained of to the plaintiff or his parent's, besides filing a defence in this action?
a.Why or why not?

This interrogatory does not relate to any matter in question in the action. It impermissibly assumes that the police spoke the words complained of to the plaintiff or his parents. It requires the person answering the interrogatory to form an opinion as to what actions are being referred to and what constitutes seeking to explain those actions. It is oppressive. It will not be allowed.

Interrogatory 9

9.[to be answered by Sergeant Skehan] Do you agree that the imputations contained in the words complained of are serious?

This interrogatory is unnecessary and oppressive. Whether the imputations, if established, are serious is a matter for the court not Sergeant Skehan. It is oppressive to ask Sergeant Skehan if he agrees. It will not be allowed.

Interrogatory 10

10.Does the defendant agree that WA Police have a duty to not defame people?
a.What training do police receive to avoid civil defamation claims?

This interrogatory does not relate to any matter in question in the action, is irrelevant, unnecessary and oppressive. It will not be allowed.

Interrogatory 11

11.[To be answered by Nathan Ross & Sergeant Skehan] Was a search warrant considered, rather than the speaking of the words complained of in order to search the plaintiff's parents' house?
a.Why or why not?

This interrogatory is oppressive. The interrogatory impermissibly assumes that the words complained of were spoken. Furthermore, it assumes that considering a search warrant and speaking the words complained of are mutually exclusive alternatives. It will not be allowed.

Interrogatory 12

12.[To be answered by Nathan Ross] Do you believe the plaintiff communicated actual threats contained in the words complained of, to Joyce Lim?

This interrogatory is embarrassing, unnecessary, irrelevant and oppressive. It is not clear what is meant by 'the words complained of'. If they refer to the words in the internet posting then it is not clear whether Mr Ross is being asked whether he believes or understands the words in the internet posting in their natural and ordinary meaning to amount to a threat to Ms Lim or whether he is being asked whether he believes or understands the plaintiff intended the internet posting to constitute a threat to Ms Lim or some other meaning. If the words complained of refer to the words allegedly spoken by Sergeant Skehan to the plaintiff's mother and others at the Claremont house, then it is not clear whether the person answering the interrogatories is asked whether they believe the plaintiff communicated those words, or words substantially similar, to address them or whether they are being asked whether the plaintiff communicated the words in the internet posting to Joyce Lim and whether those words constitute threats to the effect of the words complained of. Furthermore, Mr Ross' belief about those matters does not relate to any matter in question in the action. It will not be allowed.

Interrogatory 13

13.[to be answered by Nathan Ross] If the answer to [13] is yes, what duties does your appointment as a police officer require of you?
a.did you carry them out?
b.why or why not?

The reference to [13] is intended to be a reference to [12]. This interrogatory is dependent upon interrogatory 12 being answered. I have not allowed interrogatory 12. It follows that this interrogatory will not be allowed.

Interrogatory 14

14.[To be answered by Nathan Ross] When did you become aware that the plaintiff lived at Murdoch University Student Campus?

This interrogatory impermissibly assumes that Nathan Ross, or some police officer became aware that the plaintiff lived at Murdoch University Student Campus. It is not apparent why when Nathan Ross became aware that the plaintiff lived at Murdoch University Student Campus is relevant. It will not be allowed in those terms. However, there is an issue between the parties whether or not Sergeant Skehan or the police officer to whom Joyce Lim made her complaint knew, at that time, that the plaintiff lived at Murdoch University Student Campus. I will permit the plaintiff to deliver interrogatories in these terms:
2.Did:
(a)the police officer to whom Ms Lim made the report referred to in [3] of the defence;
(b)any police officer, other than Sergeant Skehan, to whom the substance of the report was communicated on 31 December 2009;
(c)Sergeant Skehan;
know or become aware at any time on 31 December 2009:
(i)that the plaintiff was then living or residing at Murdoch Student Campus or somewhere other than 16 Lakeway Street, Claremont, and if so at what address;
(ii)that the plaintiff was on bail and the terms of his bail required him to live, or stated that he was living, at Murdoch Student Village or some other, and if so what, address?
3.If the answer to any part of the preceding interrogatory is not in the negative then in relation to each part of that interrogatory the answer to which is not in the negative:
(a)when did the relevant police officer become aware of the matter?
(b)from whom or what source did the police officer become aware of that matter?

Interrogatory 15

15.[To be answered by Nathan Ross] On receiving Joyce Lim's complaint, did you become aware that the plaintiff was on bail for charges of breach of the restraining order protecting Joyce Lim?

It is not apparent how Nathan Ross' knowledge about the plaintiff being on bail relates to any matter in question in the action. This interrogatory is unnecessary and does not relate to any matter in question on the pleadings. It will not be allowed. However, the plaintiff will be permitted to deliver the following interrogatories to be answered by the defendant:
4.At any time on 31 December 2009 did:
(a)the police officer to whom Ms Lim made the report referred to in [3] of the defence;
(b)any police officer, other than Sergeant Skehan, to whom the substance of the report was communicated on 31 December 2009;
(c)Sergeant Skehan;
know or become aware that the plaintiff was on bail for charges of breaching a restraining order protecting Joyce Lim?
5.If the answer to any part of the preceding interrogatory is not in the negative then in relation to each part of the interrogatory that is not in the negative:
(a)when did the police officer know, or become aware, that the plaintiff was on bail for charges of breaching the restraining order protecting Joyce Lim?
(b)from whom or from what source did the police officer know or become aware that the plaintiff was on bail for charges of breaching the restraining order protecting Joyce Lim?

Interrogatory 16

16.[To be answered by Nathan Ross] What forensic purpose did you expect Sergeant Skehan to perform on the occasion of the speaking of the words complained of?
a.Where you still on duty when Sergeant Skehan returned from the plaintiff's parent's house on 31/12/09?
b.Pursuant to Sergeant Skehan's return: Where you present when Sergeant Skehan advised Joyce Lim to, 'make safe for the night', and what did you understand that to mean?
i.What assurances did you give to Joyce Lim following the search of the plaintiff's parents' house for gun's etc if any?
ii.Where you confident that Joyce Lim was safe from being raped / murdered / decimated by the plaintiff as per the words complained of following 31/12/10?

This interrogatory or interrogatories do not relate to any matter in question in the action and are oppressive. It is oppressive to ask the defendant what forensic purpose they expected Sergeant Skehan to perform. It will not be allowed.

Interrogatory 17

17.[to be answered by Sergeant Skehan] On the conclusion of your investigation, you stated that you told Joyce Lim to go home and 'make safe for the night'
a.What did you mean by this instruction to her specifically?

This interrogatory impermissibly assumes that on the conclusion of his investigation Sergeant Skehan told Ms Lim to go home and make safe for the night. Furthermore, if he did say that, what he meant by that does not relate to any matter in question in the action. This interrogatory is unnecessary and does not relate to any matter in the action. It will not be allowed.

Interrogatory 18

18.If the plaintiff had of sent an email from an email account, to Joyce Lim's email account literally threatening to rape her, kill her, and chop into pieces her body, on the occasion of the words complained of:
a.What criminal offences would the plaintiff had of committed?
b.Would the plaintiff have been arrested and taken into custody?
c.Is it not likely that bail would have been refused, and the plaintiff be remanded in custody?

This interrogatory is unnecessary, does not relate to any matter in question in the action and is oppressive. It is oppressive to ask the defendant to answer hypothetical questions or say what would have happened in certain events. It will not be allowed.

Interrogatory 19

19.[To be answered by Nathan Ross] When did you communicate with Murdoch police station regarding Joyce Lim's complaint?

This interrogatory impermissibly assumes that the defendant communicated with Murdoch police station regarding Ms Lim's complaint. Furthermore, it is not apparent how communications by making Mr Ross relate to any matter in question in the action. It will not be allowed. However, the plaintiff may deliver the following interrogatories:
6.Did:
(a)the police officer to whom Ms Lim made the report referred to in [3] of the defence;
(b)any police officer, other than Sergeant Skehan, to whom the substance of the report was communicated on 31 December 2009;
(c)Sergeant Skehan:
communicate with Murdoch Police Station, or any person at or stationed at, Murdoch Police Station, regarding Joyce Lim's complaint referred to in [3] of the defence?
7.If the answer to any part of the preceding interrogatory is not in the negative then in relation to each part of that interrogatory that is not in the negative: then when did the police officer communicate with Murdoch Police Station, or some person at or stationed at Murdoch Police Station and if so whom, regarding Joyce Lim's complaint?

Interrogatory 20

20.[To be answered by Nathan Ross] Was the fact that the Murdoch Police Station was closed at the time of the complaint or thereabouts, a factor in attending the plaintiff's parents' house by police?

This interrogatory is oppressive. It is oppressive to require a person answering the interrogatory whether something was a factor in a course of action being taken. It will not be allowed.

Interrogatory 21

21.Are copies of peoples bail records kept on a central police database, and accessible 24 hours a day?

This interrogatory does not relate to any matter in the action. It will not be allowed.

Interrogatory 22

22.What interest did Marianne Ives have in hearing the words complained of?

This interrogatory is oppressive. It requires the person answering to form an opinion in relation to a matter of law. It will not be allowed.

Interrogatory 23

23.What interest did Marianne Ives's children have in hearing the words complained of?

This interrogatory is oppressive. It requires the person answering to form an opinion on a question of law. It will not be allowed.

Interrogatory 24

24.How reliable a source was Joyce Lim for information to act upon for the police?
a.Did Joyce Lim complain to police regarding Rex Widerstrom, and cause his extradition to Australia under a false accusation of being a paedophile, only a few years earlier?

This interrogatory is oppressive. It requires the person answering to form an opinion about the reliability of Ms Lim. It will not be allowed.

Interrogatory 25

25.Are telephone calls to, 'Crime stoppers' recorded?
a.Is there a recording of the plaintiff's phone call to 'Crime stoppers' made from a Murdoch University payphone on 1 January 2010?

This interrogatory is unnecessary. It does not relate to any matter in question between the parties. It will not be allowed.

Conclusion

The plaintiff will have leave to administer interrogatories in the terms of interrogatory 1 and in the terms set out in [14], [15] and [19] of these reasons. Leave to administer the interrogatories contained in the minute of proposed interrogatories dated 10 April 2012 will otherwise be refused.