Lum v State of Victoria (Ruling)
[2018] VCC 1359
•31 August 2018
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| GENERAL LIST |
Case No. CI-17-03725
| WARREN LUM | Plaintiff |
| v | |
| STATE OF VICTORIA | Defendant |
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JUDGE: | JUDICIAL REGISTRAR GURRY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 7 August 2018 | |
DATE OF RULING: | 31 August 2018 | |
CASE MAY BE CITED AS: | Lum v State of Victoria (Ruling) | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 1359 | |
RULING
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Subject: PRACTICE AND PROCEDURE
Catchwords: Application by plaintiff to file and serve an amended statement of claim, further discovery by defendant, leave to interrogate defendant out of time pursuant to direction orders, further direction orders as required, including orders for trial date
Legislation Cited: Victoria Police Act 2013 (Vic); Civil Procedure Act 2010; Supreme Court (General Civil Procedure Rules) 2005
Cases Cited:Mandie v Memart Nominees Pty Ltd [2016] VSCA 4; Gesah v Ross [2013] VSC 165; Zalewski & State of Victoria v Turcarolo [1995] 2 VR 562; Victoria v Richards (2010) 27 VR 343; Ryan v State of Victoria [2015] VSCA 353; Volunteer Fire Brigades Victoria v CFA (Discovery Ruling) [2016] VSC 573
Ruling: Plaintiff granted leave to file and serve an amended statement of claim in accordance with proposed amendments the subject of this application, within 14 days of the date of this Ruling. Defendant to file and serve a further affidavit of documents within 21 days of this Ruling.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr P Hamilton | All States Legal Co Pty Ltd |
| For the Defendant | Ms R Ellyard | Victorian Government Solicitor’s Office |
JUDICIAL REGISTRAR:
1 This is an application by the plaintiff for:
(a) leave to file and serve an amended statement of claim;
(b) further discovery by the defendant;
(c) leave to interrogate the defendant out of time pursuant to direction orders;
(d) further direction orders as required, including orders for the trial date 10 September 2018.
2 This matter was listed for trial on 10 September 2018 as a cause with an estimate of five to seven days. By agreement between the plaintiff and defendant prior to the hearing of this application, it was agreed that the trial date of 10 September 2018 be vacated and the issue of leave to further interrogate the defendant not be the subject of the present application. A directions hearing is listed before me on 25 September 2018 at 9.30am for further direction orders.
3 The plaintiff filed a Writ and Statement of Claim dated 28 July 2017. The plaintiff alleges, in paragraph 2 of the Statement of Claim, that on 13 December 2014, at around 1.20am, he was in the company of his wife outside The Emerson, South Yarra, and in the company of Mr Kent Morgan (“Morgan”).
4 In paragraphs 3 to 5 inclusive, allegations are made that Morgan had made unwanted physical contact and sexual advances towards the plaintiff’s wife and the plaintiff had acted in self defence in attempting to physically keep Morgan away from his wife.
5 It is further pleaded that, as a result of these events, Sergeant Mark Sahib, Constable Joshua White and First Constable Timothy Bryan (police officers) restrained the plaintiff with force and, in concert, assaulted and battered the plaintiff.[1]
[1]Paragraphs 6 to 18 inclusive of the Statement of Claim
6 At paragraph 29 of the Statement of Claim, it was pleaded:
“In the premises, by operation of section 72 of the Victoria Police Act 2013 the:
(a) Assault and Battery;
(b) First Detention; and
(c) Second Detention.
amounted to police torts for which the defendant is liable.”
7 At paragraph 30 of the Statement of Claim, it is pleaded that by reason of the assault and battery, first detention and or second detention, the plaintiff had suffered injury, loss and damage.
8 For the application, I had the following material:
(a) Affidavit of the plaintiff’s solicitor, Andrew Theodore, sworn 6 August 2018;
(b) Affidavit of the defendant’s solicitor, William Francis Yates, affirmed 6 August 2018;
(c) Plaintiff’s submissions dated 7 August 2018;
(d) Defendant’s submissions dated 6 August 2018.
9 A Proposed Amended Statement of Claim was provided and the relevant amendments to the application are contained in paragraphs 29A, 29B and 30.
10 Paragraph 29A pleads:
“Further, by operation of sections 72 and 74 of the Victoria Police Act 2013, the defendant through its officers, White, Bryan and/or Sahib, owed a duty of care to the plaintiff in the performance or purported performance of their duties as officers to take reasonable steps to prevent a foreseeable risk of injury to him by their handling of the plaintiff, including while effecting his arrest and detention.”
11 Paragraph 29B pleads:
“By committing the assault and battery on the plaintiff, and, or alternatively, in their handling of the plaintiff, including during his arrest and detention, the defendant, through White, Bryan and/or Sahib, breached its duty of care that it owed to the plaintiff.
PARTICULARS
The plaintiff relies on and repeats the particulars subjoined to paragraph 19 above.
Further, the plaintiff says:
(a)White, Bryan and/or Sahib acted in disregard to the training they had received by the manner in which they handled the plaintiff during the arrest and his detention;
(b)If White, Bryan and/or Sahib were not properly trained and properly capable of doing the tasks assigned to them at the time, failing to seek out appropriate training and assistance to do the tasks assigned to them;
(c)White, Bryan and/or Sahib acted impetuously, without due enquiry and reflection of the situation faced by them in managing the situation between Morgan and the plaintiff and in arresting and detaining the plaintiff;
(d)White, Bryan and/or Sahib by their actions and excessive force and aggression provoked the situation and the plaintiff;
(e)Having taken control of the plaintiff, White, Bryan and/or Sahib used excessive and unreasonable force.”
12 Paragraph 30 pleads:
“By reason of each of the Assault and Battery; First Detention and/or Second Detention, and/or by reason of the police torts pleaded in paragraphs 29A and 29B, the plaintiff has suffered injury, loss and damage.”
13 The particulars of injury are then pleaded.
Proposed Amended Statement of Claim
14 The effect of the plaintiff’s Proposed Amended Statement of Claim is to plead that the police officers were negligent and that their negligence was a cause of the incident.
15 In support of the proposed amendment, reference is made to s72 and s73 of the Victoria Police Act 2013 (Vic).
16 Counsel for the plaintiff submitted that negligence is a classic form of tort and there is no reason on its face to limit a “police tort” to assault, battery, unlawful detention or some other form of tort but not extended to negligence. It was argued that the State is only liable for a police tort in accordance with s74 of the Act.
17 That Section, it was argued, limits the liability for serious and wilful misconduct by police officers and says nothing about the State’s liability for negligent acts or omissions of police officers, and it is reasonable to plead both.
18 Counsel for the plaintiff submitted that the only possible reason to limit the interpretation of these sections of the Act is based on common law or precedent. He said:
(i) First, that it is inappropriate here, because of the plain wording of the Act and the effect of the statutory intrusion into this area of law;
(ii) Second, there is case law which establishes an arguable case against the defendant based on common-law principles which is recognised by the defendant in its submissions;
(iii) Third, it is inappropriate to limit the plaintiff’s claim to certain causes of actions and not others at this time on the basis of alleged conflicting duties. The Court may find no assault or battery but there was negligence and the plaintiff ought not to be shut out from making the claim at this time;
(iv) Lastly, all the plaintiff needs to establish is that the negligence allegations, looked at in the pleadings’ context, are not obviously bad at law or hopeless.
19 Counsel for the defendant submitted that the plaintiff seeks to plead a new cause of action in negligence, and set out two objections in support.
20 Objection 1 was that there was no duty of care owed by individual police officers. It was argued that in order to establish that the State of Victoria is liable for a police tort under the Act, it is necessary to establish that a tort has been committed by an individual police officer. In the context of negligence, this requires the plaintiff to establish that an individual police member owed them a duty of care. The plaintiff must establish that these duties of care were owed to him personally, such that he has a private right of action for breach of the duties.
21 At paragraph 15 of the defendant’s submissions, it was stated:
“The duties the plaintiff seeks to plead are novel. Whilst courts have imposed a duty of care on police officers in certain circumstances, those circumstances are exceptional.”
22 It was argued that the rationale for denying the existence of such a duty of care was rooted in:
(a) the inconsistency of the alleged private duty of care with the public duties and responsibilities of police officers (“conflicting duties principle”);
(b) a variety of related public policy considerations; and
(c) the absence of control exercise by the police officers over the relevant risk and the vulnerability of the plaintiff.
23 The second objection was that the negligence claim is subsumed by the intentional torts claim. It was argued that where a claim of assault and or battery is brought simultaneously with a claim in negligence concerning the same acts, a finding of assault and or battery subsumes any claim in negligence.
24 The Court of Appeal in Mandie v Memart Nominees Pty Ltd[2] (“Mandie”), considered an application for leave to appeal against an order made by a judge in the Trial Division of the Supreme Court of Victoria, refusing leave to the applicants to amend their statement of claim and a separate cost order.
[2][2016] VSCA 4
25 In that decision, the Court, comprising Kyrou, Ferguson and McLeish JJA, noted that the trial judge had determined the application for leave to amend the statement of claim by applying the “no real prospect of success” test in s63(1) of the Civil Procedure Act 2010 (“CPA”), which deals with the giving of summary judgment.
26 At paragraph 29, the Court stated:
“She adopted the interpretation that was given to that phrase by this Court in the following passage from the judgment of Warren CJ and Nettle JA in Lysaght Building Solutions Pty Ltd v Blanalko Pty Ltd:[3]
‘… the test … should be construed as one of whether the respondent to the application for summary judgment has a ‘real’ as opposed to a ‘fanciful’ chance of success; that the ‘real chance of success’ test is to some degree a more liberal test than the ‘hopeless’ or ‘bound to fail’ test; and that, as the law is at present understood, the real chance of success test permits of the possibility that there may be cases, yet to be identified, in which it appears that, although the respondent’s case is not ‘hopeless’ or ‘bound to fail’, it does not have a real prospect of succeeding’.”[4]
[3](2013) 42 VR 27
[4](Supra) at paragraph [29]
27 The Court of Appeal, in Mandie,[5] considered, s63(1) of the CPA, and noted how the CPA had changed the litigation landscape. Importantly, the Court said, at paragraph 43:
“The power conferred on the court by s 63(1) of the CP Act to dispose of claims before a trial facilitates one of the stated purposes of the Act. Subject to limited exceptions, if a claim or defence has no real prospect of success, then summary judgment may be given. It must follow that a proposed pleading amendment raising a claim or defence of that type should not be permitted. To grant leave in that circumstance would be futile as the claim or defence would be susceptible to a summary judgment application. This principle facilitates the administration of justice, as it enables courts to prevent claims or defences being pleaded where they will inevitably fail and thus avoid the cost and inconvenience that would otherwise arise if those claims or defences were permitted to be made only to be the subject of summary judgment subsequently.”[6]
(Footnotes omitted.)
[5]ibid
[6](ibid) at paragraph [43]
28 It should also be noted what the Court of Appeal said at paragraph 44 in Mandie.
“Since the introduction of the CP Act and the ‘no real prospect of success’ test, various authorities have used different language to explain what the test means.”
29 I am required to consider whether the amendments had “no real prospect of success”. On how, best, to determine whether there was a prospect of success, the Court of Appeal said, at paragraph 46 in Mandie:
“Dixon AJA, delivering the leading judgment [the decision of Utility Services Corp Ltd v SPI Electricity Pty Ltd …, described the proposed pleading as one which was not ‘fanciful or futile.’ In reaching this conclusion, he endorsed the ‘no real prospect of success’ test in s 63(1) of the CP Act. Beach AJA agreed that the appeal should be allowed. He had initially been persuaded that the construction of the legislation preferred at first instance was correct but was later satisfied that an alternative construction was at least as powerful as that preferred by the trial judge. He was satisfied that the proposed amendments were therefore ‘arguable’ and should be allowed. Bongiorno JA agreed with Beach and Dixon AJJA. In doing so, he took the view that the basis of liability alleged in the proposed pleading was not ‘unarguable.’ Essentially, the Court allowed the amendments because it could not be said that they had no real prospect of success. The Court was not establishing any different test to that set out in s 63(1) of the CP Act nor was it setting a lower threshold for when pleading amendments will be allowed.”
(Footnotes omitted.)
30 Section 63(1) of the CPA provides:
“Subject to section 64, a court may give summary judgment in any civil proceeding if satisfied that a claim, a defence or a counterclaim or part of the claim, defence or counterclaim, as the case requires, has no real prospect of success.”
31 I should also make reference to s64 of the CPA, which provides:
“Despite anything to the contrary in this Part or any rules of court, a court may order that a civil proceeding proceed to trial if the court is satisfied that, despite there being no real prospect of success the civil proceeding should not be disposed of summarily because—
(a) it is not in the interests of justice to do so; or
(b)the dispute is of such a nature that only a full hearing on the merits is appropriate.”
32 Beach J, as he then was, in Gesah v Ross,[7] was asked to determine an application by the defendants for summary dismissal of the plaintiff’s claim pursuant to Rule 23.01 of the Supreme Court (General Civil Procedure Rules) 2005 and/or s63 of the Civil Procedure Act 2010. In that case, the plaintiff had alleged a duty of care was owed to him by the first defendant as director of The Victoria Police Forensic Science Centre and against the second, third, fourth and fifth defendants, serving members of the Victoria Police. The plaintiff had alleged that while a prisoner at Fulham Correctional Centre, he had been arrested and charged in relation to the murder of two persons. At a subsequent press conference, statements were made by members of the police force on the arrest and charges, and reference was made to DNA evidence. The murder charges were subsequently withdrawn. The pleading of the duty owed by the serving members of the police force was that the duty was to ensure that the investigations and subsequent laying of the murder charges and publicising were undertaken in a proper and professional manner, with reasonable skill and care.
[7][2013] VSC 165
33 In Gesah, his Honour looked at relevant authorities regarding the duty of care that may be owed.
34 At paragraph 41, his Honour said:
“In the absence of exceptional circumstances, police officers do not owe a duty of care to an individual to investigate a complaint of actual or threatened criminal conduct.”
35 His Honour noted the facts in Gesah were different to the facts in other cases and importantly, said, at paragraph 40, that Gesah was very different from the cases in Zalewski & State of Victoria v Turcarolo[8] (“Zalewski”) and Victoria v Richards[9] as those cases involved the infliction of physical injury in one-on-one situations.
[8][1995] 2 VR 562
[9](2010) 27 VR 343
36 Zalewski was a decision of the Appeal Division of the Supreme Court of Victoria, where the issue of the imposition of a duty of care to avoid injury to others during a police operation was considered. The police were, there, found to owe a duty of care. The circumstances in Zalewski were that a siege-type situation had arisen and the serving police officers broke into a room with weapons drawn, and discharged those weapons.
37 In Zalewski, Hansen and Brooking JJ, looked at numerous authorities on whether police may be liable for the negligent discharge of their responsibilities in the course of operational duties. The issue of an immunity from a duty of care was considered, and Hansen J, with whom Brooking and Phillips JJ agreed, said he would not be prepared to recognise an immunity where injuries arise from “specifically identified antecedent negligence … by a particular senior officer”.[10] Hansen J observed that, on the facts, the police officer “did not act in accordance with his training and instructions”[11] and was, therefore, beyond the immunity sought.
[10]Zalewski (ibid) at 577
[11](ibid) at 579
38 Hansen J, upon considering the English authorities and the appellant’s submissions on the immunity that was sought, noted that the difficulty with the appellant’s submissions was the width of the expression of the immunity. His Honour also considered that there may be appropriate case considerations of a public policy nature which would exclude liability, but whether there was an exclusion of a duty of care by reason of the relationship, or other factors, which will have to be considered in an appropriate case. Further, he noted that the applicability of the immunity would depend upon a careful examination of the facts in a particular case. He said:
“Even if one is to accept there may be an immunity as found in the English cases, the present is a different case. This is a case of an experienced police officer who it was open to the jury to find acted impetuously, without due inquiry and reflection, in disregard of police instructions, in the face of a risk of provoking a situation involving a person with a psychiatric or psychological condition and who did provoke by his actions a situation which it was open to the jury to find was a probable consequence of his actions.”[12]
[12](ibid) at 578-579
39 At 579, his Honour said:
“I am not prepared to hold that in such circumstances a police officer and his employer are immune from liability in negligence. In my opinion the case was properly determined in accordance with the law of negligence. Indeed, on the facts of this case the basis of the immunity contended for before this court did not exist, because Zalewski did not act in accordance with his training and instructions. The verdict is consistent with the jury having so found.”
40 I am going to grant the plaintiff’s application to amend the Statement of Claim. The authorities support that there are different factual circumstances which will be relevant on whether a duty was owed. In particular, the decisions of Gesah and Zalewski make it clear that those circumstances need to be considered before determining whether a duty is owed, and this can only occur if the pleading is allowed.
41 I accept that there is at least an arguable case that can be made out by the plaintiff and the pleading cannot be viewed as fanciful or futile given the authorities I have referred to. Importantly, the dispute is of such a nature that a full hearing of the merits is required and this should be at the trial.
42 I have also considered s64 of the CPA, and although I have not made a finding this is a “no-real prospect of success” situation, it would not be in the interests of justice to not allow the amendments. I have considered the position the plaintiff may find himself in if the amendment was not allowed and be shut out of a claim for negligence which the evidence may support.
Discovery
43 The plaintiff’s request for further discovery was set out in a letter from the plaintiff’s solicitors to the defendant’s solicitors dated 18 May 2018. The following categories of documents were sought:
(a)documents relating to each of the three police officers involved in the case as it relates to:
(i)their training in arrests in the three years before the arrest on 13 December 2014, including all relevant OSTT training documents;
(ii)all training in arrests in the three years after 13 December 2014, including all relevant OSTT training documents;
(iii)any complaints made about their behaviour towards members of the public in the three years before 13 December 2014, and the two years thereafter, so far as they relate to effecting arrests;
(iv)any incidents involving injuries to or incidents involving members of the public and any disciplinary complaints in the three years before 13 December 2014, and the two years thereafter, as far as they relate to effecting arrests;
(b)all documents relating to the training of the officers generally, as at 13 December 2014, including all relevant OSTT training documents.
44 The defendant simplified the request to two categories of documents, being:
(a) Category 1 – attendance records and other documents relating to the training undertaken by the attending members in arrests between 2011 and 2017; and
(b) Category 2 – training documents showing what manoeuvres the attending members performed when arresting the plaintiff.
45 It was conceded by the defendant that if the plaintiff was successful in the application to amend the Statement of Claim, which would result in a pleading regarding the adequacy of training provided to the police officers, then it may be required to discover the documents covered by Category 1.
46 After discussion between the plaintiff and defendant solicitors, the defendant, in a letter dated 26 July 2018, provided discovery of further documents which had been initially requested by the plaintiff. The defendant acknowledged that these further discovered documents may be indirectly relevant, but maintained an objection to further discovery of Category 2 documents and cited in reliance the authority of Ryan v State of Victoria.[13]
[13][2015] VSCA 353
47 The plaintiff submits that the issue of training is essential to its case and relies in support upon a statement from one of the police officers, White, wherein he states:
“These practices are modelled off the OSTT safety principles and my training at the Police Academy.”[14]
[14]Affidavit of the plaintiff’s solicitor, Andrew Theodore, sworn 6 August 2018, enclosing exhibit AT6
48 In the plaintiff solicitor’s letter dated 18 May 2018, it says:
“In other words the police officer says that he proceeded with the arrest of the plaintiff based on his OSTT training. The plaintiff at the moment has no idea what the OSTT training is, nor what OSTT training the officers underwent.”
49 The plaintiff has sought a ruling that the documents requested be discovered by the defendant in a further affidavit of documents including identifying those documents over which the defendant claims privilege.
50 I note that the decision of Ryan did not involve a claim for negligence. I also note s7 of the CPA, which demands that a court facilitate “the just, efficient, timely and cost-effective resolution of the real issues in dispute”.
51 By s55(1) of the CPA, a court is given an overriding discretion to give “any directions in relation to discovery that it considers necessary or appropriate”.
52 In Volunteer Fire Brigades Victoria v CFA (Discovery Ruling),[15] J Forrest J considered the test for discovery of documents and the relevant provisions of the CPA. His Honour noted, at paragraph 34, that the overriding consideration of the CPA was to ensure that the parties received a fair trial, but went on to note that a fair trial is not a perfect trial. Therefore, demands for discovery of documents which are peripheral to the central issues cannot be entertained, and the court is to focus on the central issues the best it can.
[15][2016] VSC 573
53 At paragraph 40, his Honour said:
“However, even with the introduction of the CPA, this is not how discovery works. Discovery has never been limited in such a way; discovery is an integral component in trial preparation. Discovery is not concerned with admissibility: it is part of the fact finding exercise in getting a case to trial. Indeed, often discovery may lead to a train of inquiry not confined to the tender (or putative tender) of a particular document in the course of a trial. Further, it may be that the document, or its contents can be deployed by a party in cross examination rather than part of its case. Much depends upon what happens at trial. One thing is clear: it is not for this Court on an interlocutory application to determine whether a potentially discoverable document will or will not be admissible at trial: that is the function of the trial judge.”
54 At paragraph 41, his Honour said:
“As long as the document in the possession of a party goes to a real (and not peripheral) issue to be determined at the trial then, absent any proportionality consideration, it is relevant and ought to be discovered.”
55 Amendments to the Statement of Claim now plead negligence and that the police officers acted in disregard to the training they had received. I have made reference to the statement of one of the police officers who has referred to the training he was provided and that his actions were based upon that training. The issue of training is a real issue in the way the case is now pled by the plaintiff. Documents concerning the training the police officers underwent for the requested period before the incident are relevant and important to the case.
56 The plaintiff also seeks documents for the training provided for the three years after the incident to the police officers. Again, I refer to the plaintiff’s solicitor’s letter of 18 May 2018 where, on page 2, reference is made to a discovered document by the defendant which would appear to suggest the police officers underwent, or it was suggested they undergo, revised training. The reference is to a document “Revised 05/13 issue cover sheet, VP Form 1028”. If this training related to the tactics the police officers should employ when involved in an incident such as the one pleaded, those documents would be relevant and important.
57 To the extent the plaintiff requests discovery of documents relating to any training, both before and after the incident, such a request is too broad and must be viewed as a fishing expedition. Discovery should be limited to the categories of documents which relate to the training relevant to the tactics or actions employed by the police officers for the incident.
58 There is benefit for the parties to progress the issue of discovery and ensuring an “efficient, timely and cost effective resolution of the issues in dispute” by the defendant providing a further affidavit of documents. The further affidavit can specifically identify the documents the defendant holds in its possession relevant to the issues that I have identified and to the new pleadings.
59 I will therefore make the following orders:
(1)The plaintiff be granted leave to file and serve an amended statement of claim in accordance with the proposed amendments, the subject of this application, and that the plaintiff file and serve the amended document within fourteen (14) days of the date of this Ruling.
(2)That the defendant file and serve a further affidavit of documents within twenty-one (21) days of this Ruling.
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