Konneh v State of New South Wales
[2011] NSWSC 1170
•07 October 2011
Supreme Court
New South Wales
Medium Neutral Citation: Konneh v State of New South Wales [2011] NSWSC 1170 Hearing dates: 24 August 2011 Decision date: 07 October 2011 Before: HOEBEN J Decision: Paragraphs 18(a), 18(b) and the specified parts of paragraph 18(c) of the Statement of Claim are struck out.
Leave is granted for the plaintiff to file and serve an Amended Statement of Claim in accordance with these reasons.
The plaintiff is directed to provide particulars (a), (b) and (c) as sought by the defendant in its Notice of Motion of clients of his solicitors who are Group Members;
The plaintiff is directed to provide particulars (a), (b) and (c) as sought by the defendant in its Notice of Motion of other persons whom his solicitors believe are Group Members provided that there is no countervailing legal obligation which would prevent the provision of such information to the defendant in relation to such persons.
Catchwords: PRACTICE AND PROCEDURE - defendant's application to strike out parts of Statement of Claim pursuant to UCPR 14.28(1)(b) - paragraphs irrelevant and therefore embarrassing - defendant's objection upheld - defendant's request for particulars - practical considerations - limited order for particulars Legislation Cited: Bail Act 1978
Civil Procedure Act 2005Cases Cited: George v Rocket & Anor (1990) 170 CLR 104
O'Hara v Chief Constable of the Royal Ulster Constabulary [1997] 1 All ER 129
Shelton v National Roads & Motorists' Association Ltd & Ors [2004] FCA 1393, [2004] 51 ACSR 278
Dare v Pulham (1982) 148 CLR 658Texts Cited: --- Category: Interlocutory applications Parties: Musa Konneh - Plaintiff
State of NSW - DefendantRepresentation: Mr MBJ Lee/Ms R Francois - Plaintiff
Mr MTM McCulloch SC/Mr DF Villa - Defendant
Maurice Blackburn Pty Limited (Plaintiff)
Public Interest Advocacy Centre Limited (Plaintiff)
Crown Solicitor (Defendant)`
File Number(s): 2011/00187125 Publication restriction: ---
Judgment
HIS HONOUR:
Nature of proceedings
By a motion filed 12 August 2011 the defendant seeks an order that paragraphs 18(a), 18(b), some words in paragraph 18(c) of the Statement of Claim and questions 1-3 of the common questions be struck out.
The defendant also seeks an order that the plaintiff be required to provide limited particulars of known potential group members.
Background
The Statement of Claim is a representative proceeding brought by the plaintiff against the State of New South Wales under part 10 of the Civil Procedure Act 2005 (CPA) and as an "open class" representative proceeding on behalf of all persons who are described as Group Members in paragraph 1 of the Statement of Claim.
The Group Members comprise persons who:
(a) Were detained by a member of the NSW Police Force for only a breach of a bail condition or bail conditions; and
(b) The alleged breach of the bail condition or bail conditions related to an alleged offence or offences which were being or had been prosecuted in the Children's Court of NSW; and
(c) At the time of the detention, were not then subject to the bail condition or bail conditions which were alleged to have been breached.
The plaintiff alleges that he was arrested by the police on 14 August 2010 at a time when he was no longer on bail because the police erroneously believed he was still on bail and had breached his bail conditions. He alleges that the police officers formed this erroneous belief based upon incorrect information contained on the New South Wales Police Force's Computerised Operational Policing System (COPS).
The plaintiff claims damages for the unlawful deprivation of his liberty and for an assault committed by the arresting police officers on 14 August 2010. It is anticipated that Group Members who were unlawfully deprived of their liberty will likewise claim damages.
The particular paragraphs of the Statement of Claim which are challenged are as follows:
No reasonable grounds for arrest
18. At all relevant times when the plaintiff and Group Members were detained (relevant period) including, in the case of the plaintiff, as at 14 August 2010:
(a) Senior Police Officers within the NSW Police Force were aware that the information on COPS as to bail conditions:
(i) was unreliable;
(ii) often inaccurate;
(iii) was information the reliability of which did not provide a reasonable basis for assuming it recorded the accurate bail status of a person whose details were purported to be recorded in COPS;
(b) The NSW Police Force (including those that detained the plaintiff and Group Members) were aware or ought to have been aware that the information on COPS as to bail conditions:
(i) was unreliable;
(ii) often inaccurate;
(iii) was information the reliability of which did not provide a reasonable basis for assuming it recorded the accurate bail status of a person whose details were purported to be recorded in COPS;
(c) Despite the matters pleaded in sub-paragraphs (a) and/or (b) those that arrested the plaintiff and Group Members at material times including Senior Constable Ngoc Tran and Constable Matthew Lord) did not (and were not required by the NSW Police Force to) confirm the bail information on COPS with information on the prosecutor's file, on the court file or on Justicelink or make appropriate inquiries prior to arresting a person for alleged breach of their bail conditions.
...
Common questions of law or fact which are said to arise.
In accordance with Paragraph 4.1(c) of Practice Note No SC Gen 17 - Supreme Court Representative Proceedings, the plaintiff specifies the following common questions of fact or law which are said to arise in the proceedings:
(1) Whether one or other of the matters pleaded in paragraph 18(a) was true during all of the relevant period.
(2) Whether, if true, that matter or matters had the consequences pleaded in paragraph 18(b).
(3) The content of the duties of arresting officers to the plaintiff and Group Members in the event one or other of the matters alleged in Paragraph 18(a) was true.
...
The particulars sought in respect of each Group Member of which his solicitors are currently aware are:
(a) Name
(b) Date of birth
(c) Date (or approximate date) of arrest
(d) Circumstances particular to the Group Member (if any) as to why the arresting officer was not entitled to rely upon the COPS system (i.e. apart from the general matters that are raised in Paragraph 18 of the Statement of Claim).
Submissions on strike out application
The defendant submitted that the paragraphs of the Statement of Claim which it challenged were irrelevant to the plaintiff's claim and therefore embarrassing and should be struck out pursuant to UCPR 14.28(1)(b). That paragraph provides:
"14.28(1) The court may at any stage of the proceedings order that the whole or any part of a pleading be struck out if the pleading:
...
(b) has a tendency to cause prejudice, embarrassment or delay in the proceedings, or
...
(2) The court may receive evidence on the hearing of an application for an order under subrule (1)."
The defendant's submissions depended upon s50(1) of the Bail Act 1978 which provides:
"50(1) Where a police officer believes on reasonable grounds that a person who has been released on bail has, while at liberty on bail, failed to comply with, or is, while at liberty on bail, about to fail to comply with, the person's bail undertaking or an agreement entered into by the person pursuant to a bail condition:
(a) a police officer may arrest the person without warrant and take the person as soon as practicable before a court, or
(b) an authorised justice may:
(i) issue a warrant to apprehend the person and bring the person before a court, or
(ii) issue a summons for the person's appearance before a court."
The defendant submitted that the section empowers a police officer to arrest a person without warrant where that police officer has a belief, which belief is formed on reasonable grounds. By reference to such cases as George v Rocket & Anor (1990) 170 CLR 104 and O'Hara v Chief Constable of the Royal Ulster Constabulary [1997] 1 All ER 129, it submitted that the relevant belief is that of the police officer. Accordingly, it submitted, whether or not that belief is formed on reasonable grounds can only be determined by inquiry as to what was known to that particular police officer - a subjective and an objective inquiry. A subjective inquiry because of the reference to the belief of the police officer and an objective inquiry because of the reference to "reasonable grounds".
The defendant submitted that if that were the correct characterisation of s50(1) Bail Act , what was known to senior police officers as asserted in paragraph 18(a), was irrelevant. It was irrelevant unless that knowledge was passed on to the particular police officer. The defendant submitted that since there was nothing in paragraphs 18(a) and 18(b) which averred such a connection, paragraph 18(a) had to be irrelevant to the plaintiff's claim. The defendant submitted that while it may be true that some senior police officers had that knowledge, it did not affect the particular police officer unless that knowledge was communicated to either him or her.
The defendant submitted that if the rationale behind paragraph 18(a) was that because senior police officers knew about problems with COPS, then all police officers knew or ought to have known that fact, that should be pleaded. Moreover, it should be stated whether such knowledge was actual or constructive.
In respect of paragraph 18(b), the defendant submitted that this did not raise a relevant issue. It submitted that the correct inquiry was into the individual police officer's state of mind and the basis upon which that state of mind was arrived at. It also required the existence of facts which were sufficient to induce that state of mind in a reasonable person ( Rocket , O'Hara). It submitted that whether or not information available in COPS provided a reasonable basis for an individual officer's belief was not answered by asking whether or not, as a matter of fact, the COPS database could be relied upon to provide accurate information. The inquiry, it submitted, had to be into the state of mind of the individual police officer based on an examination of the information known to that officer. The pleading in paragraph 18(b) not only did not raise that issue, it avoided it.
In relation to common questions 1 - 3, the defendant submitted that if its submissions as to paragraphs 18(a) and 18(b) were correct, those issues not only did not arise as common questions, they did not arise in any event.
The plaintiff submitted that the relevance of paragraph 18(a) was clear. It raised the issue of institutional knowledge within the NSW Police Force that the COPS system was unreliable with respect to bail information. Such institutional knowledge thus rendered unreasonable the "grounds" upon which the police officers relied to arrest the plaintiff and other Group Members. Put another way, the relevance was that where a police officer formed a belief that a person was in breach of their bail condition based upon the information contained in the COPS system, that belief might not satisfy the requirement that it was on "reasonable grounds" in circumstances where it was well known that such information on COPS was unreliable.
As an alternative, the plaintiff submitted, that even if the defendant's complaint was made out the knowledge by senior police officers of deficiencies in the COPS system was relevant to the issue of exemplary damages.
With respect to paragraph 18(b) the plaintiff submitted that on one reading of s50(1) Bail Act , it did not apply to the plaintiff and if so the basis for the defendant's complaint fell away. The plaintiff submitted that if a precondition to the operation of s50(1) Bail Act was that a person was released on bail, that precondition had not been met in his case and the police officers had no legal justification for arresting him.
Alternatively, if the defendant were entitled to rely upon s50(1) as a justification for the arrest of the plaintiff and other Group Members, the knowledge of the arresting police officers that the COPS bail information was unreliable, meant that their belief when arresting the plaintiff could not reach the necessary objective standard required by s50(1). He submitted that even if the operation of s50(1) involved a subjective element, it also involved an objective element and if that objective standard could not be reached because of the arresting officer's knowledge of the unreliability of the COPS system, s50(1) could not be relied upon by the defendant.
In relation to the strike out application generally, the plaintiff submitted that little useful purpose was to be served by it. He submitted that of their very nature claims of this kind evolved as more information came to hand. He submitted that while there may be some imprecision presently in the way in which paragraphs 18(a) and 18(b) were pleaded, those paragraphs might well be amended as the proceedings evolved and more information came to hand. Counsel for the plaintiff said:
"There is limited utility in any event in striking out Statement of Claim in representative proceedings where they, by necessity, will evolve." (T.12.12)
In relation to common questions 1 - 3, the plaintiff submitted:
"There are a number of reasons why your Honour wouldn't grant that relief. First, it is not part of the pleading per se. It is a statutory requirement that the plaintiff, at the time when the proceedings are commenced, postulate the common issues said to arise. In other words, to allow this case to get through the statutory gateway of being a representative proceeding. They, by necessity, again having regard to the Full Court in Burke , will evolve and they will be framed differently prior to any trial. There is simply no utility in throwing it out, even if such a power existed." (T.12.33)
Consideration
The Court was helpfully referred to the decision of Tamberlin J in Shelton v National Roads & Motorists' Association Ltd & Ors [2004] FCA 1393, [2004] 51 ACSR 278. At [18] Tamberlin J said:
"18 Order 11 of the FCR relates to pleadings. Under the FCR a pleading must contain a summary statement of the material facts relied upon as the basis for the relief sought, but it is not appropriate to set out the evidence by which those facts are to be proved. The pleadings are required to be as brief as the nature of the case allows. Where documents or spoken words are referred to in a pleading, it is with regard to their nature or effect, rather than the precise terms. The pleading can raise points of law. Under O 11 r 16, a court may at any stage in the proceedings order that the whole or any part of a pleading be struck out where it has a tendency to cause prejudice, embarrassment or delay in the proceedings. "Embarrassment" in this context refers to a pleading that is susceptible to various meanings, or contains inconsistent allegations, or in which alternatives are confusingly intermixed, or in which irrelevant allegations are made that tend to increase expense. This is not an exhaustive list of situations in which a pleading may be embarrassing: see Bartlett v Swan Television & Radio Broadcasters Pty Limited (1995) ATPR 41-434. An example of an embarrassing pleading is where the pleading simply pleads a conclusion. ...
In considering the competing submissions in this matter, it is useful to keep in mind the principles relevant to pleadings. These were summarised by the High Court in Dare v Pulham (1982) 148 CLR 658 at 664 where the plurality said:
"Pleadings and particulars have a number of functions: they furnish a statement of the case sufficiently clear to allow the other party a fair opportunity to meet it ... they define the issues for decision in the litigation and thereby enable the relevance and admissibility of evidence to be determined at the trial ... and they give a defendant an understanding of a plaintiff's claim in aid of the defendant's right to make a payment into court. Apart from cases where the parties choose to disregard the pleadings and to fight the case on issues chosen at the trial, the relief which may be granted to a party must be founded on the pleadings. ... "
If the purpose of paragraph 18(a) was to allege institutional knowledge, the paragraph does not have that effect. As it is currently pleaded, it can have no relevance to the actions of the police officers who arrested the plaintiff on 14 August 2010. While the paragraph as a statement of fact may be correct (as was expressly conceded by the defendant) that is not sufficient to make it relevant. It has to be linked contextually to paragraph 18(b) if it is to serve any useful function as a pleading.
In relation to paragraph 18(b), it does not perform the primary function of a pleading in making the plaintiff's case sufficiently clear. If, as it was put in argument, a plank in the plaintiff's case is that s50(1) Bail Act has no application, this should be made clear and pleaded.
On the plaintiff's alternative case that s50(1) can apply, the issues for decision in the litigation need to be set out more clearly. As presently framed, paragraph 18(b) sets out only part of what the plaintiff needs to establish. In the context of following paragraph 18(a), it also operates in a way analogous to a conclusion.
If paragraphs 18(a) and 18(b) are struck out, then the impugned parts of paragraph 18(c) must also be struck out.
It follows from what I have said that there are difficulties in common questions 1 - 3 remaining in the Statement of Claim in their present form. Whilst strictly speaking they may not operate as a pleading, if paragraphs 18(a) and 18(b) need to be repleaded, common questions 1 - 3 in their present form serve no useful purpose and will need to be amended.
For these reasons, I have concluded that paragraphs 18(a), 18(b) and parts of 18(c) of the Statement of Claim should be struck out. I will, however, grant liberty to the plaintiff to replead to raise the issues which were intended to be raised in those paragraphs. I do not propose to make any specific orders in relation to common questions 1 - 3, but they will require amendment.
Request for Particulars
In the course of submissions, the defendant modified its request for particulars of Group Members so that all that it was seeking was the name, date of birth and date (or approximate date) of the arrest. In relation to that last matter, senior counsel for the defendant pointed out that in the case of some of the persons likely to be Group Members, there had been multiple arrests and it was necessary to find out what particular arrest was being relied upon as a basis for the claim. He submitted that the reason for the defendant's request was to find out as soon as possible the size of the claim that it was facing.
In response, counsel for the plaintiff submitted that he was conscious of the obligation to facilitate the cost effective resolution of the case but that there were practical difficulties in providing the information requested. He explained that there was no difficulty in providing such particulars of Group Members with whom his solicitors had entered a retainer. Those particulars would be supplied as soon as possible.
As to other persons, counsel for the plaintiff submitted that because of the definition of Group Members, it was often quite difficult to obtain instructions as to whether they satisfied the criteria as Group Members and to then obtain other relevant information. Whereas this could be achieved in respect of actual clients, it might not be possible in relation to Group Members who were not clients because there might be conflicting fiduciary duties owed to them, which would prevent compliance.
Consideration
I can well understand the practical difficulties confronting the plaintiff's legal advisers in providing particulars of Group Members who are not actually clients. On the other hand, I can appreciate the importance for the defendant to be aware as soon as possible of the extent of the claims likely to be made against it. Until the defendant is in possession of that information, it is not in a position to discuss or try to resolve the matter in a non-curial way.
Being mindful of those practical considerations, it seems to me that the only order that I can make in relation to particulars at this stage is that the plaintiff's legal advisers provide particulars (a), (b) and (c) as sought by the defendant in its Notice of Motion of clients who are Group Members and of other persons whom they believe are Group Members provided that in relation to that latter group, there is no countervailing legal obligation which would prevent the provision of such information to the defendant.
Conclusion
The orders which I make are as follows:
1. that paragraphs 18(a), 18(b) and the specified parts of paragraph 18(c) of the Statement of Claim be struck out;
2. I grant leave to the plaintiff to file and serve an Amended Statement of Claim in accordance with these reasons;
3. I direct the plaintiff to provide particulars (a), (b) and (c) as sought by the defendant in its Notice of Motion of clients of his solicitors who are Group Members;
4. I direct the plaintiff to provide particulars (a), (b) and (c) as sought by the defendant in its Notice of Motion of other persons whom his solicitors believe are Group Members provided that there is no countervailing legal obligation which would prevent the provision of such information to the defendant in relation to such persons.
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Decision last updated: 07 October 2011
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