Le v Plummer
[2021] WASC 463
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: LE -v- PLUMMER [2021] WASC 463
CORAM: TOTTLE J
HEARD: 2 DECEMBER 2021
DELIVERED : 2 DECEMBER 2021
PUBLISHED : 16 DECEMBER 2021
FILE NO/S: CIV 1133 of 2021
BETWEEN: MICHAEL LE
Plaintiff
AND
MARTYN GRAEME ALLAN PLUMMER
First Defendant
JORDAN ALAN JOHNSTON
Second Defendant
SARAH JANE OLIVER
Third Defendant
ERICA JANE MARTIN
Fourth Defendant
EDWARD JAMES CADE
Fifth Defendant
THE COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS
Sixth Defendant
TIMOTHY KNIGHT
Seventh Defendant
KAREN MARGARET ADDISCOTT
Eighth Defendant
GREGORY CLIFFORD
Ninth Defendant
THE COMMONWEALTH OF AUSTRALIA
Tenth Defendant
CHRISTOPHER MARTEN ADAMS
Eleventh Defendant
GILES TIMOTHY PARGIN
Twelfth Defendant
GRAEME DORAN
Thirteenth Defendant
PAUL NEVILLE BEVILACQUA
Fourteenth Defendant
KAMINNI KUMAR
Fifteenth Defendant
Catchwords:
Practice and procedure - Pleading - Application to strike out the statement of claim - Whether statement of claim sufficiently particularises claim - Whether statement of claim sufficiently identifies material facts relied upon - Turns on own facts
Practice and procedure - Application for summary judgment - Factual issues raised - Inappropriate to determine on a summary basis - Turns on own facts
Legislation:
Rules of the Supreme Court 1971 (WA), O 16
Result:
Application for summary judgment dismissed
Application to strike out statement of claim granted
Leave to replead granted
Category: B
Representation:
Counsel:
| Plaintiff | : | M L Bennett |
| First Defendant | : | A Mitchelmore SC |
| Second Defendant | : | A Mitchelmore SC |
| Third Defendant | : | A Mitchelmore SC |
| Fourth Defendant | : | A Mitchelmore SC |
| Fifth Defendant | : | A Mitchelmore SC |
| Sixth Defendant | : | A Mitchelmore SC |
| Seventh Defendant | : | A Mitchelmore SC |
| Eighth Defendant | : | A Mitchelmore SC |
| Ninth Defendant | : | A Mitchelmore SC |
| Tenth Defendant | : | A Mitchelmore SC |
| Eleventh Defendant | : | G J Pynt |
| Twelfth Defendant | : | No appearance |
| Thirteenth Defendant | : | No appearance |
| Fourteenth Defendant | : | No appearance |
| Fifteenth Defendant | : | M D Cuerden SC |
Solicitors:
| Plaintiff | : | Bennett + Co |
| First Defendant | : | Australian Government Solicitor - Perth |
| Second Defendant | : | Australian Government Solicitor - Perth |
| Third Defendant | : | Australian Government Solicitor - Perth |
| Fourth Defendant | : | Australian Government Solicitor - Perth |
| Fifth Defendant | : | Australian Government Solicitor - Perth |
| Sixth Defendant | : | Australian Government Solicitor - Perth |
| Seventh Defendant | : | Australian Government Solicitor - Perth |
| Eighth Defendant | : | Australian Government Solicitor - Perth |
| Ninth Defendant | : | Australian Government Solicitor - Perth |
| Tenth Defendant | : | Australian Government Solicitor - Perth |
| Eleventh Defendant | : | D G Price & Co |
| Twelfth Defendant | : | Tindall Gask Bentley Lawyers |
| Thirteenth Defendant | : | Tindall Gask Bentley Lawyers |
| Fourteenth Defendant | : | DLA Piper Australia - Perth |
| Fifteenth Defendant | : | Barry Nilsson Lawyers (WA) |
Case(s) referred to in decision(s):
A v The State of New South Wales [2007] HCA 10; (2007) 230 CLR 500
ABC (A Pseudonym) v Reader Lawyers & Mediators [2021] WASCA 202
English v Vantage Holdings Group Pty Ltd [2021] WASCA 47
Le v The Queen [2019] WADC 11
Zaghloul v Bayly [2021] WASCA 125
TOTTLE J:
(This judgment was delivered extemporaneously on 2 December 2021 and has been edited from the transcript.)
Introduction
In this action, the plaintiff sues 13 individuals, the Commonwealth of Australia and the Office of the Commonwealth Director of Public Prosecutions (CDPP) for damages for malicious prosecution.
There are three applications before the court. First, by a chamber summons filed on 9 June 2021 the first to tenth defendants apply to strike out various paragraphs of the plaintiff's statement of claim on the basis that those paragraphs would prejudice, embarrass or delay the fair trial of the action.
Second, by chamber summons filed on 24 August 2021 the fifteenth defendant seeks summary judgment pursuant to O 16 of the Rules of the Supreme Court1971 (WA), alternatively, seeks to strike out those paragraphs of the statement of claim that advance a claim against her. On 25 November 2021, the fifteenth defendant's application was amended to seek leave to seek an extension of time within which to bring the application (the plaintiff having taken the point the application was out of time).
Third, the eleventh defendant filed an application on 1 November 2021, by which he sought to strike out various paragraphs of the statement of claim that advanced the case against him on the grounds that some paragraphs either disclosed no reasonable cause of action or that they would prejudice, embarrass or delay the fair trial of the action.
Relevant principles
The principles to be applied to applications to strike out pleadings were recently summarised in the Court of Appeal in English v Vantage Holdings Group Pty Ltd[1]. I will apply those principles, insofar as they are relevant, in determining the strike out applications.
[1] English v Vantage Holdings Group Pty Ltd [2021] WASCA 47.
As to the elements of the tort of malicious prosecution, I am guided by the statements of principles set out by the members of the High Court in A v The State of New South Wales[2].
[2] A v The State of New South Wales [2007] HCA 10; (2007) 230 CLR 500.
The statement of claim - an overview
I turn now to refer in an overview way to the statement of claim. I will refer to particular paragraphs in more detail later in these reasons.
The statement of claim adopts a narrative structure involving a sequence of pleas, many of which are rolled-up pleas against either all of the defendants, or grouped according to whether the defendants were police officers or lawyers involved in some way with the prosecution of the plaintiff.
The rolled-up pleas are interspersed with isolated factual allegations made in respect of particular defendants.
The approach adopted by the plaintiff in pleading his claim is not well suited for a malicious prosecution cause of action or causes of action which require the pleader to identify not only the facts relied upon to establish each defendant as a prosecutor (as that term has been explained in the authorities), but also to plead with specificity the matters relied upon to establish malice and the absence of reasonable and probable cause (again, as those terms have been explained in the authorities).
The requirement for specificity arises not only from the general principles that apply to pleadings, but also from the grave nature of the allegations that are made by the plaintiff against the defendants, who are a combination of police officers and lawyers. It is alleged, at least in two of the impugned paragraphs (being par 116 for the police officers and par 122 for the lawyers), that these defendants did not honestly believe in the guilt of the accused.
The approach that I propose to take in relation to dealing with the complaints made by the statement of claim is a thematic one as opposed to reviewing the impugned paragraphs paragraph by paragraph. I propose to illustrate both the concerns advanced by the defendants and the conclusions that I have reached in respect of the manner in which the case is pleaded against various defendants.
The applications were formulated in response to, and brought in respect of the statement of claim filed by the plaintiff on 21 April 2021, but the application was largely argued by reference to a minute of amended statement of claim filed on 1 December 2021. References to the statement of claim, unless I make it otherwise plain, are references to the minute of amended statement of claim and to the pleas contained therein.
Case pleaded against Mr Plummer
I start with the case pleaded against the first defendant, Mr Plummer. The statement of claim identifies Mr Plummer as the senior assistant director of the CDPP.
The central allegation about the conduct of Mr Plummer is that he signed the indictments which initiated the prosecutions of Mr Le in the District Court. On that basis, it may be accepted that he is or was a 'prosecutor' for the purpose of malicious prosecution.
It is, however, necessary to accompany the plea of each defendant's role as prosecutor with a plea as to both malice and the absence of reasonable and probable cause, and those matters need to be pleaded with specificity and, importantly, by reference to the date or dates upon which the relevant conduct alleged against each defendant took place.
In relation to the signing of the indictments by Mr Plummer, the plaintiff needs to plead the facts upon which he relies to establish malice on the part of Mr Plummer as at that date, and the plaintiff needs to plead, again with specificity, the facts and matters that are relied upon by him to establish the absence of reasonable and probable cause. That is not the approach that the plaintiff has taken.
Rather, in relation to the elements of malice and the absence of reasonable and probable cause, the plaintiff has rolled up the pleading of those matters with the plea of the same matters against each of the other lawyer defendants.
In so far as it is alleged that Mr Plummer played a role in the maintenance and continuation of the prosecution of the plaintiff, the facts relied upon to support that case must be pleaded, once again, with specificity.
At present, the pleas relied upon by the plaintiff in respect of Mr Plummer's continued participation as a prosecutor, at least so far as it appears to me, are contained in par 2.5 and par 31.2.
Paragraph 2.5 pleads that 'at all material times, Mr Plummer played an active role in the conduct of the prosecutions against Mr Le, further or alternatively, was a person instrumental in the conduct of those prosecutions'.
Paragraph 31.2 pleads that 'the prosecutions against Mr Le were continued and/or conducted by Mr Plummer and others on behalf of the CDPP'.
Those pleas are vague and are expressed at such a high level of generality that they do not adequately disclose the nature of the case advanced by the plaintiff against Mr Plummer. They do not disclose the material facts relied upon by the plaintiff to advance his case against Mr Plummer.
Those pleas were, in my respectful view, aptly described by Mr Pynt, who appeared on behalf of the eleventh defendant, as formulaic.
The task that must be undertaken by the plaintiff is, to use jargon, to disaggregate the pleas made by the plaintiff against the various defendants. The plaintiff must identify the case advanced against each defendant including their alleged role as a prosecutor. Accompanying that plea, or each such plea, should be the relevant and necessary pleas of malice and the absence of reasonable and probable cause tailored in each case to the relevant date or date range within which the conduct alleged falls.
Case pleaded against the other lawyers of the CDPP
I turn to say something about the case against the second, fourth and fifth defendants, each of whom were lawyers within the office of the CDPP. Their respective roles as prosecutors are not pleaded with any level of specificity. The formula used in relation to Mr Plummer, to which I have referred, is adopted in relation to the pleas that the second, fourth and fifth defendants were 'prosecutors'.
What I have said about that formula in the context of the case against Mr Plummer applies with equal force to the cases pleaded against the second, fourth and fifth defendants.
I would pause to add, however, that the pleading of the cases against the fourth defendant and the fifth defendant requires further care and attention to detail because of the date and temporal limits of their respective involvements in this case. The fourth defendant is pleaded to have had a role only between June 2016 and February 2017. The fifth defendant's role is said to have commenced in February 2017. Consequently, the conduct which is alleged against those defendants in relation to their roles as prosecutors must necessarily be confined to those periods, and the cases of malice and absence of reasonable and probable cause must also be articulated by reference to those limited periods.
The case against the third defendant is pleaded differently. There are particular facts alleged against the third defendant to support her participation and involvement as an initiator and maintainer of the prosecution. But the case against the third defendant suffers from the same difficulties to which I have referred previously concerning the pleas of malice and absence of reasonable and probable cause. That is, the pleas of malice and the absence of reasonable and probable cause are aggregated with the cases against the other lawyer defendants.
Case pleaded against the police officer defendants
I turn now to the cases against the defendants who were police officers. Substantially, the same observations that I have made in respect of the lawyers apply to the cases advanced against the members of the police force. The statement of claim must identify the facts that are relied upon by the plaintiff to plead the case that each was a prosecutor. Each of the police officer defendants should be dealt with separately and the same approach that I described already in relation to the elements of malice and absence of reasonable and probable cause must be followed.
A further refinement needs to be attended to in relation to the cases advanced against the ninth defendant, who is a member of the Australia Federal Police, and the twelfth defendant, who is a member of the Western Australia Police Force. The ninth defendant is pleaded to have signed the prosecution notice in relation to one set of money laundering charges, and the twelfth defendant is said to have signed the prosecution notice in relation to one set of harbouring charges in the Magistrates Court.
It follows that the cases against each of those officers needs to reflect their involvement in the particular prosecutions for which they signed the prosecution notice.
The observations made of the pleading in respect of the first to tenth defendants apply with equal force to the pleading in respect of the eleventh to thirteenth defendants.
I note (even though there is no application made on behalf of the thirteenth defendant), that no particular factual allegation is made against him. The pleaded case rests entirely on him having held the rank of Detective Senior Sergeant and it being alleged that he was one of the main investigating officers into the prosecutions, and that he played an active role in the conduct of the prosecutions or was a person instrumental in the conduct of the prosecutions. Again, so far as I can tell, the pleaded case against the thirteenth defendant is entirely devoid of any material facts.
The fifteenth defendant's application
I turn now to the application brought by the fifteenth defendant. I grant the fifteenth defendant leave to bring the application out of time. The delay in bringing the application having been satisfactorily explained by the affidavit evidence of Mr Hart, her solicitor.[3]
[3] Affidavit of Jason Paul Taylor Hart sworn on 22 November 2021.
Insofar as the fifteenth defendant's application for summary dismissal is concerned, the principles to be applied are those outlined by the Court of Appeal in the decisions of Zaghloul v Bayly[4] and ABC (A Pseudonym) v Reader Lawyers & Mediators[5].
[4] Zaghloul v Bayly [2021] WASCA 125.
[5] ABC (A Pseudonym) v Reader Lawyers & Mediators [2021] WASCA 202.
The focus of the summary dismissal application is whether the fifteenth defendant was a 'prosecutor' for the purposes of the tort of malicious prosecution. That is a question of fact, and, as such, it is not a question that I consider should be determined on a summary basis. On that basis I dismiss the fifteenth defendant's summary judgment application.
In relation to the fifteenth defendant's application to strike out the pleading of the case against her, the observations that I have made in relation to the pleas against the other defendants apply with equal force to the plea against the fifteenth defendant, and I will not repeat what I have already said.
Conclusion on strike out applications
It follows from what I have said that the statement of claim should be struck out in its entirety.
Observations on particular paragraphs of the statement of claim
Without derogating from my observations about the overarching structural difficulties with the statement of claim, I will make brief reference to particular paragraphs of the statement of claim. In the light of what I have already said about the structure of the statement of claim I will deal with these in a relatively summary way.
Paragraphs 2.5 and 31
I have commented already on the inadequacy of the formula adopted and recited in par 2.5 (and the other introductory paragraphs in which the same verbal formula is used). The same criticism about the generality of the plea, applies to the plea in par 31.1 (the plea the police officers initiated and continued the prosecutions against the plaintiff) and to the plea in par 31.2 (the plea the lawyers continued or conducted the prosecutions). In my view, those paragraphs are pleaded at a significantly too high level of generality to sustain the plaintiff's case.
Paragraph 39
Paragraph 39 pleads, at some length, the plaintiff's reputation as a successful businessman and pleads it was a matter which should have been known to the police officers. I presently do not understand the relevance of that plea or how it fits into the overall case that the plaintiff seeks to advance other than possibly in the context of loss and damage. It is a matter that may require further consideration by the plaintiff's lawyers.
Paragraphs 56 and 57
Paragraphs 56 and 57, in effect, repeat the plea of par 39 but apply it to the 'lawyer defendants'. Again the purpose of those pleas or their relevance are not immediately apparent.
Paragraph 110A
The difficulty of rolled-up pleas is compounded in par 110A by the use of the term 'the Crown' as opposed to identifying the parties whose conduct is impugned.
Paragraph 111A
In so far as par 111A pleads the 'police officer defendants' had decision-making responsibilities in relation to both the laying of the summary charges and the maintaining of the prosecutions, the factual basis for the pleas of decision‑making responsibilities needs to be set out within the context of the pleas that should be made against each individual police officer. What I have said about the decision‑making responsibilities pleaded in par 111A applies equally to the pleas in par 113 and in par 115 of 'decision‑making powers'.
Paragraph 115
The plea in par 115.1 is inadequate as are, in my view, the pleas in pars 115.5 to 115.8. They are pleas at such a high level of generality that they do not assist in the identification of the case that is advanced against the defendants.
Further, I would adopt what was said by Ms Mitchelmore SC on behalf of the first to tenth defendants that if, in effect, the plaintiff seeks to incorporate into the plea a lack of reasonable and probable cause, some or all of the matters referred to in the judgment of Chief Judge Sleight in Le v The Queen[6] should be incorporated more directly and with a greater level of specificity.
Paragraph 120
[6] Le v The Queen [2019] WADC 11.
In par 120, the observations that I have made earlier in relation to rolled up pleas apply with respect to the plea of an absence of reasonable or probable cause in the pleas of the absence of reasonable or probable cause advanced against the lawyer defendants.
I do note that in the proposed minute the plea of an assertion by the lawyers that they honestly believed that there was sufficient grounds for the probable guilt of the plaintiff and that there were reasonable prospects of convicting Mr Le is retained, whereas the similar plea that existed in relation to the police officers has been deleted. The assertion of an honest belief is an unnecessary plea.
Paragraph 121
In par 121, again, what I have said in relation to the adequacy of the pleas in relation to par 115 applies in general terms to the pleas in pars 121.1 to 121.16.
Paragraph 123
In relation to the pleas of malice, I confine myself to the observation that the adverse inference pleaded in par 123.1 is not supported by any material facts. That deficiency is replicated on each occasion when there is a plea of an inference for the purposes of the malice pleas against both the police officer defendants and the lawyer defendants.
Conclusion
For those reasons, I will strike out the entirety of the statement of claim. The structural deficiencies are such that it is appropriate that the plaintiff start again from scratch so that even though there are particular paragraphs to which I have not referred and which might survive, it is appropriate to strike out the whole pleading.
There should be leave to replead.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
RC
Associate to the Honourable Justice Tottle
16 DECEMBER 2021
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