Lancee v Willert
[2007] WADC 24
•19 MARCH 2007
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS
LOCATION: PERTH
CITATION: LANCEE -v- WILLERT & ORS [2007] WADC 24
CORAM: KEEN DCJ
HEARD: 28 FEBRUARY 2007
DELIVERED : 19 MARCH 2007
FILE NO/S: CIV 777 of 2006
BETWEEN: JOHANNA MARIE LANCEE
Plaintiff
AND
GLEN MICHAEL WILLERT
KAREN ANN REED
First DefendantsTHE STATE OF WESTERN AUSTRALIA
Second Defendant
Catchwords:
Application to strike out defence - turns on own facts
Legislation:
Nil
Result:
Application dismissed
Representation:
Counsel:
Plaintiff: Mr J R Ludlow
First Defendants : Mr A J Sefton
Second Defendant : Mr A J Sefton
Solicitors:
Plaintiff: Kitto & Kitto
First Defendants : State Solicitor for Western Australia
Second Defendant : State Solicitor for Western Australia
Case(s) referred to in judgment(s):
Cameron v James [1945] VLR 113
Hunter v Chief Constable of West Midlands Police [1982] AC 529
Lawrence v Lord Norreys (1890) 15 App Cas 210
McKechnie v Campbell (1996) 17 WAR 62
Mickelberg v Director of Perth Mint [1986] WAR 365
R v Carroll (2002) 213 CLR 635
Rogers v The Queen (1994) 181 CLR 251
Walton v Gardiner (1992) 177 CLR 378
Williams v Spautz (1992) 174 CLR 509
Case(s) also cited:
Batistatos v Roads and Traffic Authority of New South Wales (2006) 80 ALJR 1100
Blair v Curran (1939) 62 CLR 464
Cameron v James [1945] VLR 113
Commissioner of Taxation v Indooroopilly Children Service (Qld) Pty Ltd [2007] FCAFC 16
D'Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1
Davis v Gell (1924) 35 CLR 275
Goodson v Grierson [1908] 1 KB 761
Helton v Allen (1940) 63 CLR 691
Howden v Truth & Sportsman Ltd (1937) 58 CLR 416
Kosanovic v Sarapuu [1962] VR 321
Kuligowski v Metrobus (2004) 220 CLR 363
McKechnie v Campbell (1996) 17 WAR 62
Mickelberg v Director of the Perth Mint [1986] WAR 365
Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589
Ramsay v Pigram (1967) 118 CLR 271
Walton v Gardner (1992) 177 CLR 378
KEEN DCJ: The plaintiff applies by chamber summons dated 2 November 2006 for the defendants' defence dated 15 September 2006 to be struck out pursuant to O 20 r 19 on the grounds that the pleading is an abuse of process and will prejudice, embarrass and delay the fair trial of the action. By the summons the plaintiff also sought that the defendant provide further and better particulars of the defence but I was informed on the hearing of this matter that that part of the application had fallen away.
The pleadings
The plaintiff's claim has as its genesis a visit in the early hours of the morning of 25 April 2005 by police officers Willert and Reed to the plaintiff's premises at View Street, Subiaco in response to an alleged complaint about noise emitting from the premises. The statement of claim dated 27 July 2006 is long and it is not necessary for me to go into detail as to all of the allegations contained therein. Suffice it to say it is alleged in par 10 of the statement of claim that officers Willert and Reed forcibly entered the house of the plaintiff without warrant and without the plaintiff's consent. The statement of claim goes on to allege that that entry was malicious and that after entry the police officers violently assaulted and committed battery on the plaintiff at the premises, and that that assault and battery was itself malicious. The plaintiff claims that she sustained injuries as a result of those matters and required treatment.
Apart from those matters the statement of claim goes on to allege that the first defendants maliciously falsely imprisoned the plaintiff and thereafter, maliciously instituted and continued proceedings in the Magistrate's Court in respect of alleged offences under:
(a)Section 82(2) Environmental Protection Act 1986;
(b)Section 318(1)(d) Criminal Code; and
(c)Section 20 Police Act.
The statement of claim also alleges against the first defendants misfeasance in public office.
The defence filed 15 September 2006 denies the allegations set out in the statement of claim. Again, it is not necessary for me to go into all of the details, but by pars 2, 3, 4, 5 and 7 of that defence the defendants set out, by way of narrative, the events, as they allege them to be, leading to the events as alleged by the plaintiff.
In a nutshell, that narrative suggests that the first defendants, responding to a complaint about noise from the premises, attended at the premises and rang the doorbell. When the plaintiff answered the door, they requested the plaintiff to provide her name under the Environmental Protection Act. The plaintiff refused to give her name and Willett explained that the first defendants intended to issue a Noise Abatement Notice to her. Thereafter, it is said that Willett again requested the plaintiff to provide her name for the purposes of completing a Noise Abatement Notice, and the plaintiff refused to give her name, saying that she had already provided it. It was requested again and she did not provide her name but attempted to close the door. As the plaintiff attempted to close the door, Willett placed his foot in the doorway advising the plaintiff that she could not close the door and that he needed to give her the Noise Abatement Notice. It is alleged that after Willett placed his foot in the doorway, the plaintiff unlawfully assaulted him by lashing out at him and trying to push him away with both hands from the doorway, and the first defendant attempted to defend himself and a struggle ensued. It is said that the plaintiff further unlawfully assaulted Willett by clasping onto and squeezing his testicles, refusing to let go despite Willett screaming to the plaintiff to let go, and continued the assault until Willett was able to strike out with his arm making contact with the plaintiff's face after which the plaintiff released her grip on his testicles. It is further said that Officer Reed then entered the premises to assist Willett, to effect the arrest of the plaintiff and to assist in his defence and the plaintiff continued to resist arrest and assaulted Reed.
The defence alleges at par 7(b) that at the time of placing his foot in the door, Willett had lawful authority to enter the premises with the use of reasonable force pursuant to s 82(1) of the Environmental Protection Act 1986. It is further said by par 7(m) that in entering the house, Willett acted with lawful authority. By way of particulars it is said that at the time of placing his foot in the door, Willett had lawful authority to enter the premises with the use of reasonable force under s 82(1) of the Environmental Protection Act 1986, and further and in the alternative, if, after the plaintiff's unlawful assault on Willett, his actions amounted to entering upon the premises, he did so for the purposes of effecting the arrest of the plaintiff for an arrestable offence. It is also said by par 7(n) that the actions of Reed in entering the house were with lawful authority, particulars whereof were for the purposes of assisting Willett to effect the arrest of the plaintiff for an arrestable offence, and assisting in the defence of Willett against the unlawful assault of him by the plaintiff.
It is respect of the allegation in the defence that the officers had lawful authority to enter that the plaintiff says that the defence should be struck out as an abuse of process. In order to put this into some context, it is necessary to have regard to the history of the criminal proceedings instituted in the Magistrates' Court.
History of the criminal proceedings
I have been provided with an affidavit of Johnson Grey Kitto sworn 18 January 2007. There appears to be little dispute that the prosecutions that were brought in the Magistrates' Court and heard on 2 September 2005 resulted in convictions of the plaintiff for the offences of failing to provide her name pursuant to s 82(2) Environmental Protection Act 1986; assault on Glen Michael Willert, a public officer then performing a function of his office pursuant to s 318(1)(d) Criminal Code; assault on Karen Ann Reed, a public officer then performing a function of her office contrary to s 318(1)(d) Criminal Code and resisting Glen Michael Willert, a member of the Western Australian Police Force then acting in the execution of his duty contrary to s 20 Police Act1892.
It is also not in dispute that those convictions became the subject of appeal to the Supreme Court of Western Australia and that such appeal was allowed following consent filed to the effect that the convictions in respect of prosecution notices PE 28328, PE 28329, PE 28330 and PE 28331 be set aside and judgments of acquittal be entered on each charge. The consent also provided for the plaintiff to be entitled to the costs of the hearing in the Magistrates' Court and of the appeal pursuant to the Official Prosecutions (Accuseds' Costs) Act 1973.
The affidavit of Mr Kitto also annexed supplemental submissions filed by the Director of Public Prosecutions (DPP) on behalf of Glen Michael Willert relating to ground 1 of the appeal. I was not provided with a copy of the notice of appeal but it seems reasonably clear from the appellant's submissions filed in support of the appeal dated 30 December 2005 that ground 1 of the appeal related to the forced entry into the appellant's home without warrant, relying on s 82 of the Environmental Protection Act 1986.
The supplemental submissions filed on behalf of Willert acknowledged that whilst failure to provide a name constitutes an offence which might result in a fine, it did not result in an arrestable offence and:
"Accordingly, the two police officers did not have lawful authority to enter upon the premises of the appellant for the stated purpose; ie to arrest the Appellant for failing to provide her name in response to a direction under s 82 Environmental Protection Act 1986".
It is against that background in relation to the criminal proceedings and in particular that acknowledgment or admission on behalf of Willert and which goes to the acquittal of the plaintiff in respect of the charges against her, that grounds the plaintiff's application to strike out the defence as an abuse of process.
The plaintiff's case
There are two limbs to the plaintiff's case; first in relation to who was in fact the prosecutor and the effect of the concessions made in the Supreme Court upon that person and, secondly, the general effect of the concessions. I propose to deal with the second aspect first.
The plaintiff says that the plaintiff having been acquitted on the concession made in the Supreme Court, that the police officers entered the house unlawfully, any plea to the contrary in the civil proceeding should not be permitted as it tends to undermine the acquittal.
The plaintiff also says that she satisfied the Supreme Court at least on the balance of probability that the plaintiff was entitled to an acquittal, and that the concession having been made and accepted by the Court, that issue has already been satisfied on that standard of proof.
The plaintiff says that the plea by the defendant that it acted lawfully in entering the premises is so integral to the defence that the whole defence should be struck out.
Mr Ludlow for the plaintiff candidly admitted that he could not find any case precisely on point where a defendant seeks to plead against an acquittal in an earlier case. However, the plaintiff referred to a number of cases which the plaintiff says provide general principles which can be applied to the present case. The plaintiff says that there is no real difference in the test following an acquittal than if there had been an earlier conviction. It is on this basis that the plaintiff said the defendants are abusing the court's process by challenging, in their defence, the acquittal in the Supreme Court.
The other issue that is raised is in relation to who was the prosecutor and the extent to which the first defendants are bound by the concession made in the Supreme Court.
In relation to this, I say first of all that it is quite clear from the supplementary submissions provided to me and annexed to the affidavit of Mr Kitto that those submissions were filed on behalf of the named respondent, Glen Michael Willert.
The plaintiff points to the prosecution notices annexed to the affidavit of Mr Kitto in which the prosecutor is noted as the WA Police. In each case the prosecution notice was issued by Glen Michael Willert. The plaintiff says that the police and Willert are the prosecutors. In the appeal the parties were named as the plaintiff, as appellant, and Willert as respondent. The plaintiff also argues that the DPP had not in fact elected to exercise his powers to take over the appeal in this case, but merely acted as the solicitor for the respondent, Willert, and it was in that capacity that the consent to the appeal being allowed was filed. The plaintiff says that Willert remained the prosecutor throughout and was bound by those concessions. The plaintiff also argues that Reed assisted the prosecution at least by giving evidence in support of it, and is also bound by anything that the DPP may have done after the DPP exercised its prerogative to take over conduct of the appeal.
The defendant's case
The defendant argues that it is incorrect to treat the appeal as proving that the plaintiff had established the relevant facts on the balance of probability. Counsel for the defendants noted that the charge of assault carried with it at first instance, the relevant onus for the prosecution to establish every element of the offence beyond reasonable doubt. What his submission appears to come down to is that there was never a situation where the plaintiff had to prove that she acted in self defence on the balance of probability. Whenever the plaintiff lays some foundation for such a defence is up to the prosecution to prove that such a defence does not exist on the higher standard of beyond reasonable doubt.
As to the nature of the concession made, Mr Sefton for the defendants, referred to the evidence given by Willert in the Magistrates' Court, the transcript of which was annexed to the affidavit of Mr Kitto. At p 8 of the transcript he refers to the evidence given by Willert in the following terms:
"Right. And what did you do?---I said, 'under the Environmental Protection Act, when asked by a police officer you have an obligation to supply your name, and if you don't supply your name you'll be arrested'.
Right. Then what happened?---Then she attempted to close the door.
Right?---That's when I place my foot in the door.
Right. And what was said, if anything at that point?---What was said? – I said, 'you can't close the door'.
What---What happened then?---She then lashed out at me and tried to push me away from the door.
Right. How did she do that?---With both hands."
Mr Sefton conceded that a warning given by Willert that if the plaintiff did not supply her name she would be arrested was wrong. It was not an arrestable offence.
Mr Sefton points out that the evidence did not expressly indicate why the officer put his foot in the door. He did so and said "you can't close it" and he was pushed away. It was after that that the assault takes place.
Mr Sefton submitted that that evidence does not expressly indicate the basis of the arrest or the precise reason for putting the foot in the door. He says that the concession made in the appeal indicated that when police officers effected entry their stated purpose in doing so was to arrest the plaintiff as a result of her failure to provide her name. He says that that is a "gloss over what the actual evidence was". It was an incorrect summary.
Mr Sefton argued that those submissions incorrectly construed the transcript. He also notes that the plaintiff gives a different version of events and these are matter which ought to be determined at trial. He further points out that the concession was one which was not strictly necessary for the purposes of disposition of the appeal in this case because the prosecution had not proved its case beyond reasonable doubt. It is true to say that no reasons were given by the Supreme Court for allowing the appeal. The Court appears to have acted upon the consent minute that was prepared. To that extent the acquittal does not show any findings which are of binding effect.
The defendant argues that the authorities which have been cited in this matter support the conclusion that an acquittal is of no evidential value in subsequent civil proceedings and that a party could not be estopped from making an assertion, effectively that a person has committed an offence where it is being asserted to the civil standard, and where the person has been acquitted in preceding criminal proceedings where the criminal standard applies.
The defendants argue that to do otherwise would be to deprive the defendants of their right to test before the court, the question of whether or not they have, on the balance of probability, committed the particular tort alleged against them.
On the issue of who was the true prosecutor, Mr Sefton argues that Willert was acting in his official capacity but is now being sued in his personal capacity. He points to the fact that costs were awarded under the Official Prosecutions (Defendant's Cost) Act as recognition that the police officer was acting in his official capacity. So far as Reed is concerned, it is argued that she was not the complainant but she was present at the house where the altercation with the plaintiff occurred and gave evidence as a witness. There is no evidence that she initiated the proceedings nor that in some way Willert was acting as agent for the police service and also Reed.
The legal principles
O 20 r 19 of the Rules of the Supreme Court provide that the Court may, at any stage of the proceedings, order to be struck out or amended any pleading, or anything in any pleading that may prejudice, embarrass or delay the fair trial of the action, or is otherwise an abuse of process of the Court. It is said that the jurisdiction to strike out proceedings as an abuse must be exercised with great circumspection: Lawrence v Lord Norreys (1890) 15 App Cas 210, but that if the factual and legal basis for doing so is made out, the Court has a duty to intervene; McKechnie v Campbell (1996) 17 WAR 62 at 75. The jurisdiction is described by Lord Diplock in Hunter v Chief Constable of West Midlands Police [1982] AC 529 at 536 as:
"The inherent power which any court of justice must possess to prevent misuse of its procedure in a way which, although not inconsistent with the literal application of its procedural rules, would nevertheless be manifestly unfair to a party to litigation before it, or would otherwise bring the administration of justice into disrepute among right thinking people.": Cited with approval in Walton v Gardiner (1992) 177 CLR 378 at 393.
R v Carroll (2002) 213 CLR 635 was a case where the respondent had been charged with and acquitted of murder. He gave evidence at trial that he did not kill the deceased. Nevertheless, the jury returned a verdict of guilty which was overturned on appeal. Many years later he was indicted for perjury in relation to the sworn statement delivered at his murder trial. He was convicted and on appeal the Court of Criminal Appeal in Queensland concluded that the trial should have been stayed as an abuse of process. The appeal to the High Court was dismissed. The High Court noted the manifest inconsistency between the charge of perjury and acquittal of murder [42]. The Court went on to observe [47] there may be cases where a second prosecution is argued to be oppressive and an abuse of process even though there is no direct inconsistency between the new charge and the earlier verdict. The Court went on to say:
"The circumstances that may constitute oppression or an abuse of process are various. The discretionary considerations that may be relevant in dealing with them cannot be rigidly confined. Nevertheless, where it is said that the abuse lies in seeking to controvert an earlier verdict of acquittal, there appears much to be said for the view that it is necessary to direct attention to the elements of the offence of which the person was acquitted and the elements of the offence with which the person is later charged. Seldom, if ever, will considering whether the later charge controverts an earlier acquittal require attention to whether evidence which will be led at the second trial is new or persuasive.
[t]he circumstance in which proceedings will constitute an abuse of process cannot be exhaustively defined …" (Ibid) [73].
It was noted in Carroll that the subsequent perjury charge sought to impeach the earlier acquittal [99] and it is an abuse of process to charge a person with an offence when proof of the charge necessarily contradicts or tends to undermine an acquittal of the accused in respect of another criminal charge [118].
In Williams v Spautz (1992) 174 CLR 509 action had been commenced for wrongful dismissal and the plaintiff later laid information alleging a number of offences. The prosecutions were found to be an abuse of process on the basis that they were conducted for an ulterior or improper person. The plaintiff also relied on Walton v Gardner (supra) in which proceedings were stayed on the grounds of abuse of process on the ground that the complaints laid were a reformulation of other complaints previously stayed. In Rogers v The Queen (1994) 181 CLR 251 the prosecution sought to rely upon records of interview deemed inadmissible in earlier proceedings. It was held to do so would be an abuse of process.
The plaintiff also relied on McKechnie v Campbell (supra) which was a case where the defence was struck out as an abuse of process. The abuse on that occasion being where the defence was improperly put up for an ulterior purpose or collateral advantage. In that case, Owen J said at 75 – 76:
"It is an abuse of process to initiate proceedings for the purpose of mounting a collateral attack on a final decision against the intending plaintiff which has been made by another court of competent jurisdiction in previous proceedings in which the intending plaintiff had a full opportunity of contesting the decision in the court by which it is made; see Hunter. It would be a scandal to the administration of justice if, the same question having been decided in one case, the litigant were to be permitted by changing the form of the proceedings to set up the same case again; see Reichel v McRath (1889) 14 App Cas 665 at 668."
In Mickelberg v Director of Perth Mint [1986] WAR 365 the Full Court was called upon to consider, in civil proceedings, whether a relevant conviction was admissible evidence. Leave was granted to the Director of the Perth Mint to amend the statement of claim so as to plead convictions and for the appellants to plead to that pleading facts that, if established, would displace the prima facie position established by the convictions. In that case, Burt CJ at 371 – 372 considered the position whether or not to deny the fact of which the convictions is prima facie evidence constitutes an abuse of process. His Honour referred to Hunter's case where there was some ulterior motive or some other dominant purpose for the action.
In Mickelberg Kennedy J noted at [379]:
"If it be accepted that evidence of a conviction is admissible in such civil proceedings, it does not follow that it should be permissible to lead evidence of an acquittal. An acquittal merely signifies that the Crown has failed to establish its case beyond reasonable doubt. The existence of the difference in the degree of proof required in criminal and civil cases requires the exclusion of proof of an acquittal as evidence of the accused not having done that which he is alleged to have done. In contrast, a conviction indicates that a jury has been satisfied as to the ingredients of the offence to a higher standard of proof than is required for civil purposes."
At 382 his Honour went on to say:
"It may be accepted that, in the present proceedings, the appellants are seeking directly to attack their convictions, but the critical consideration appears to me to be that they are doing so in order to defend a claim which has brought against them, and they are not the initiators of proceedings which have the dominant purpose of retrying their criminal charges. There is, in my opinion, nothing before us to enable this Court to conclude that the defence serves the dominant purpose of re‑trying the charges against them, notwithstanding that, the defence standing, this will be an incidental consequence. It would, I think, be wrong in the present case to regard the relevant paragraphs of the defence as constituting an abuse of process. To hold otherwise, it seems to me, would amount virtually to giving conclusive effect to a conviction, a proposition which does not appear ever to have been asserted, although it must be acknowledge that while the view that evidence of a conviction was not admissible in later civil proceedings was held, that question could never have arisen."
I pause to note that the comments of Kennedy J at p 379 in relation to the position on an acquittal would appear to be obiter. In the context of that case, the Court was dealing with a matter of conviction rather than acquittal. Nevertheless, given the absence of direct authority on the point, they are of some considerable persuasion.
The plaintiff also relied upon Cameron v James [1945] VLR 113. In that case, the plaintiff commenced an action in the County Court of Melbourne claiming damages against the defendant, a police constable, for false imprisonment and malicious prosecution. The jury found in her favour. The plaintiff had been arrested by the defendant and had been prosecuted for using insulting words in a public place. The Court of Petty Sessions had dismissed the case against her, exercising powers given to it under the Justices' Act, as a trifling offence. The judgment in favour of the plaintiff was set aside and the plaintiff was estopped from denying that she had used insulting words and, that the defendant had the right to arrest her.
Counsel for the plaintiff also raised a number of other authorities which he said assisted in sheeting home to the defendants the concession made by the DPP on the hearing of the appeal and illustrating why the defendants are now bound by that concession and ought not to be allowed to detract from it. For the reasons that follow I need not go into those cases.
Conclusion
It seems to me from a review of the authorities that none of them support the propositions advanced by the plaintiff. In number of the cases, and R v Carroll is a good example, one party sought to raise matters against another in a criminal context which would undermine a finding of a previous court of competent jurisdiction. Other cases were clearly cases wherein the abuse arose out of some ulterior motive for bringing the proceedings. As I have noted previously, neither counsel could direct me to a case such as the present.
It is to be noted that whilst the criminal proceedings were initiated by Willert, the current civil proceedings were initiated by the plaintiff. That was the circumstance alluded to by Kennedy J in the Mickelberg case. As noted by counsel for the defendant in his submissions:
"The criminal proceedings concern the criminality of the plaintiff's conduct whereas the civil proceedings concern the question of whether the conduct of the first defendants was tortious based on a civil standard of proof."
Further, as noted by Kennedy J at p 379 in Mickelberg "an acquittal merely signifies the Crown has failed to establish its case beyond reasonable doubt". With respect, this is a logical approach in the circumstance.
Further, whilst the DPP made the concession that he did in the appeal, the evidence before me suggests that that submission was only made in relation to ground 1 and, as rightly pointed out by Mr Sefton, the evidence in the Magistrate's Court was not such as to be specifically directed to that ground. Accordingly, it would leave open for argument at trial the relevant facts behind the current plea that Willert entered the house with lawful authority.
I accept the argument made out by the defence that the consent to the appeal being allowed could be seen to be on the basis that the prosecution had not established all of the elements of the offence of assault to the criminal standard. However, that does not mean that the matters which will fall for determination in the present proceedings could not be found on the lesser standard of the balance of probability.
In the circumstances, I find that the pleading by the defence of entry with lawful authority is not an abuse of process.
By reason of that finding it is not necessary for me to go on to decide the relative capacities of the parties in the prosecution or the appeal. Suffice it to say that I am attracted to the argument put forward by the defence that in bringing the prosecution, Willert was acting in an official capacity. Mr Ludlow told the Court that the plaintiff was suing Willert and Reed because they invaded the plaintiff's home. He said that they were not being sued in any particular capacity. Mr Sefton noted that Willert and Reed were being sued in a private capacity and urged that the defendants should not be deprived of their right to test before the Court the question of whether or not they have, on the balance of probability, committed the particular tort alleged.
In those circumstances I feel that it is not necessary for me to go further to consider cases raised in relation to that issue.
In all the circumstances, I am not satisfied that the current defence constitutes an abuse of process. It raises matters in relation to the entry to the plaintiff's property which will stand or fall on a careful analysis of the facts as they come out at the trial.
Accordingly, for these reasons, I dismiss the plaintiff's application.
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