Matthews v State of New South Wales (New South Wales Police Force)

Case •

[2023] NSWSC 1419

•

21 November 2023

No judgment structure available for this case.

Supreme Court


New South Wales

Medium Neutral Citation: Matthews v State of New South Wales (New South Wales Police Force) [2023] NSWSC 1419
Hearing dates: 26 October 2023
Decision date: 21 November 2023
Jurisdiction:Common Law
Before: Rothman J
Decision:

(1)   Judgment for applicant in part;

(2)   Strike out Statement of Claim;

(3)   Further orders reserved.

Catchwords:

CIVIL PROCEDURE – Motion for summary disposal – alternative Motion to strike out pleadings – workplace injury – meaning of “other tort” – need to specify in Pre-Filing Statement – to the extent proceedings not struck out – need to re-plead

Legislation Cited:

Crown Proceedings Act 1988 (NSW)

Director of Public Prosecutions Act 1986 (NSW)

Law Reform (Vicarious Liability) Act 1983 (NSW)

Uniform Civil Procedure Rules 2005 (NSW), r 14.28

Workers Compensation Act 1987 (NSW), ss 2A, 66, 151

Workplace Injury Management and Workers Compensation Act 1998 (NSW), ss 4, 121, 127, 250, 281, 282, 287, 288, 313, 314, 315, 318, Pt 7

Cases Cited:

A v State of New South Wales (2007) 230 CLR 500; [2007] HCA 10

Commonwealth Life Assurance Society Ltd v Brain (1935) 53 CLR 343; [1935] HCA 30

Deputy Commissioner of Taxation v Clark (2003) 57 NSWLR 113; [2003] NSWCA 91

Flower & Hart (a firm) v White Industries (Qld) Pty Ltd (1999) 87 FCR 134; [1999] FCA 773

GM v R (District Court (NSW), Williams SC DCJ, 26 August 2021, unrep)

Northern Territory v Mengel (1995) 185 CLR 307; [1995] HCA 65

Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28

Quazi v Quazi [1980] AC 744

Stryke Corporation Pty Ltd v Miskovic [2007] NSWCA 72

Williams v Spautz (1992) 174 CLR 509; [1992] HCA 34

Category:Procedural rulings
Parties: Glenn Matthews (Plaintiff/Respondent)
State of New South Wales (New South Wales Police Force) (Defendant/Applicant)
Representation:

Counsel:
A E Gauja (Plaintiff/Respondent)
D E Baran (Defendant/Applicant)

Solicitors:
Somerville Laundry Lomax Solicitors (Plaintiff/Respondent)
HWL Ebsworth Lawyers (Defendant/Applicant)
File Number(s): 2023/00176921

JUDGMENT

  1. HIS HONOUR: By Motion, notice of which was filed on 20 September 2022, the defendant seeks orders summarily dismissing the proceedings and consequential orders. The defendant relies upon s 318(1)(a) of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) (hereinafter “the Act”) and r 14.28(1)(a), (b) and (c) of the Uniform Civil Procedure Rules 2005 (NSW) (hereinafter “UCPR”). The defendant also, and in the alternative, seeks to have the Court strike out the Statement of Claim.

Substantive Proceedings

  1. The plaintiff, Glenn Matthews, is a former police officer who, in his Statement of Claim, alleges that he suffered mental harm as result of his employment. The mental harm alleged is post-traumatic stress disorder (hereinafter “PTSD”), major depressive disorder and alcohol use disorder.

  2. Mr Matthews was employed by the New South Wales Police Force between 30 August 2002 and 20 September 2022, at which point he was medically discharged. Mr Matthews alleges that he sustained mental harm due to harassment and threatening or bullying behaviour by colleagues throughout the time at multiple police stations, as well as due to attending on traumatic incidents in the course of his duties. These are particularised in some detail in the Statement of Claim.

  3. Over and above the foregoing, the plaintiff claims that he was the victim of malicious prosecution during his time in the New South Wales Police Force. He says that in 2018, he was investigating some individuals for drug and firearm offences and came into possession of material extracted from the phone of a suspect. The material depicted the suspect engaged in sexual activity with a woman. The plaintiff alleges that this was relevant to the investigation as the woman had denied knowledge of the suspect’s whereabouts during the period that the video was created.

  4. The Statement of Claim alleges that, in early 2019, charges against the relevant woman were dropped without reason, and his superior (with whom he had a poor relationship) commenced an investigation into whether the plaintiff had shown the video to other officers without the woman’s consent. The aforesaid investigation resulted in the plaintiff being charged and tried, and eventually exonerated on appeal to the District Court.

  5. The plaintiff’s position was and is that the video was handled for a genuine law enforcement purpose and that he was prosecuted maliciously. The plaintiff says that the officer who commenced the investigation, Detective Inspector Flaherty, committed offences by making a false complaint. Further, Detective Inspector Flaherty prosecuted the plaintiff maliciously and committed misfeasance in public office, and abuse of process. The plaintiff says that the State of New South Wales (hereinafter “the State”) is vicariously liable for the impugned conduct. The plaintiff bases his claim on a cause of action under the Act, on the torts of malicious prosecution, collateral abuse of process, and misfeasance in public office.

Procedural History

  1. The plaintiff initially claimed against the workers compensation insurer, EML. The claim progressed in the usual way, with a deemed date of injury of 25 February 2019.

  2. The plaintiff’s claim under s 66 of the Workers Compensation Act 1987 (NSW) (hereinafter “the WCA”) was resolved by agreement and complying certificate for 19% whole person impairment (“WPI”), entitling him to make a further claim for work injury damages. In accordance with the Act, on 7 June 2022, the plaintiff served a notice pursuant to ss 281 and 282 of the Act setting out the particulars of his further claim for work injury damages.

  3. The aforesaid notice did not contain allegations of malicious prosecution, collateral abuse of process or misfeasance in public office (hereinafter collectively referred to as “the intentional torts”). Rather, the claim was notified as being one based on negligence, as well as in respect of bullying and harassment in which each allegation was framed as an alleged breach of duty of care.

  4. On 30 November 2022, the plaintiff served a Pre-Filing Statement accompanied by all documents upon which he relied in his claim for work injury damages, including his proposed pleadings. The pleadings accorded with the proposed claim that had been put in the notice under ss 281 and 282, being the notice of 7 June 2022. The defendant, in accordance with the process prescribed, responded with its Pre-Filing Defence on 11 January 2023.

  5. On 2 June 2023, the plaintiff commenced the current proceedings. The Statement of Claim as filed included the additional claims to which reference has been made, including a claim for exemplary and/or punitive damages. On 16 August 2023, the defendant filed the Motion with which the Court is now dealing, seeking to strike out the proceedings.

Evidence

  1. The applicant/defendant relies on the Affidavit of Mr Luke Sanders of 24 August 2023 and the Exhibits thereto. The Affidavit is procedural in nature and attaches copies of all relevant documents. The Exhibit to the Affidavit (Exhibit LS-1) attaches some 4,000 pages of documentation in seven volumes. The documents are largely, if not totally, irrelevant and include all attachments to the Pre-Filing Statement and Pre-Filing Defence, including medical reports and voluminous clinical notes and the like, none of which are in issue in these interlocutory proceedings.

  2. The key documents are the notice of claim letter of 7 June 2022, the Pre-Filing Statement and Pre-Filing Defence with attached pleadings, the filed Statement of Claim, purporting to commence these proceedings, and an exchange of correspondence between the plaintiff and defendant, in which the defendant adumbrated what it saw as the deficiencies in the claim, prior to the filing of the Notice of Motion.

  3. The plaintiff/respondent does not rely on any evidence other than that which has been filed in the Court Book, filed by the State.

Submissions of the Applicant/Defendant

  1. The defendant submits that, because the plaintiff is a worker within the meaning of the WCA and a person with a relationship that, for relevant purposes, can be taken as employment under common law, the plaintiff cannot commence proceedings against the Commissioner of Police pursuant to the Crown Proceedings Act 1988 (NSW), unless and until the Pre-Filing Statement process has been completed for all the claims that he intends to bring. The defendant submits that the work injury damages under the WCA relate to negligence, or any other tort committed by the worker’s employer, or for breach of contract by the employer and, as a consequence, the “other torts” which includes the intentional torts are covered by the restriction as to process.

  2. It is necessary to refer to some of the relevant provisions of the WCA. First, s 151 of the WCA mandates that the WCA does not affect any liability in respect of an injury to a worker that exists independently of the WCA, except to the extent that the WCA otherwise expressly provides.

  3. Secondly, pursuant to s 151E(3) of the WCA, Div 3 of the WCA, which modifies common law damages for work injury damages, applies to an award of damages in respect of an injury caused by the negligence, “or other tort” of the worker’s employer, and even if the damages are recovered in an action for breach of contract or in any other action. The terms of s 315 of the Act require that, before a claimant can commence court proceedings for the recovery of work injury damages, the claimant must serve on the defendant a Pre-Filing Statement setting out such particulars of the claim and the evidence that the claimant will rely upon to establish or to support the claim.

  4. Section 318 of the Act further governs such a claim and prescribes that, for the purposes of court proceedings or a claim for work injury damages, the claimant is not entitled to file a Statement of Claim that is materially different from the proposed Statement of Claim that formed part of the Pre-Filing Statement served by the claimant, except with the leave of the relevant court. Further, such leave is not to be granted unless the court is satisfied that the material concerned was not reasonably available to the party when the Pre-Filing Statement was served, and the failure to grant leave would substantially prejudice the party’s case.

  5. Otherwise, the defendant submits that the damages claimed by the plaintiff in respect of the intentional torts are otherwise not open to him, as the modified common law damages regime stipulates that the only common law or work injury damages available under that regime are past and future economic loss for workers who have more than 15% whole person impairment (WPI) under s 151G and s 151H of the WCA. Exemplary and punitive damages are expressly excluded from the scheme by s 151R of the WCA.

  6. In other words, the defendant’s submissions are that the intentional tort claims fall within the ambit of Div 3 of the WCA such that they are governed by the modified common law damages scheme and would be subject to the limitations on work injury damages by reason of s 151E of the WCA. As such, the plaintiff ought to have articulated those claims at the time of making the work injury damages claim in his Pre-Filing Statement.

  7. By adding the claims for intentional torts to the Statement of Claim that accompanied the Pre-Filing Statement, the plaintiff was in breach of s 318 of the Act as the Statement of Claim in the proceedings was materially different to the draft attached to the Pre-Filing Statement. Moreover, there is no evidence to show that the material added to the Statement of Claim was not reasonably open and available at the time of the Pre-Filing Statement. Accordingly, on the submission of the defendant/applicant, the proceedings should be struck out for want of compliance with s 318 of the Act.

  8. In the alternative, the defendant submits that the Statement of Claim should be struck out or dismissed pursuant to UCPR r 14.28. It is necessary to set out the reason that the defendant/applicant submits support such a striking out. In doing so, the Court is not accepting that UCPR r 14.28 is not an appropriate vehicle for striking out as a result of a failure by a plaintiff to comply with s 318 of the Act. Nevertheless, the submissions of the defendant/applicant have been put on different bases.

  9. First, the defendant submits that the claims for malicious prosecution are not properly pleaded. In overview, the defendant submits that the Director of Public Prosecutions (hereinafter “DPP”) was the prosecutor of the allegations against the plaintiff, and not Detective Inspector Flaherty, as alleged. No allegations concerning the DPP are raised in the Statement of Claim.

  10. In order to deem that the police were the prosecutors, pursuant to the Director of Public Prosecutions Act 1986 (NSW), the plaintiff is required to demonstrate that the police, who are alleged to be the prosecutors, did so for an improper purpose and at all times controlled the proceedings or engaged in improper behaviour that affected the prosecution. The defendant submits that there are no material facts going to this in the Statement of Claim.

  11. Further, the plaintiff submits that there are no material facts pleaded in the Statement of Claim which allege a lack of reasonable and probable cause in respect of the material available to the prosecutor (assuming, for present purposes, that the police officer is the prosecutor) and what use the prosecutor ought to have made of those materials. The pleadings, it is submitted, also conflate decisions made by the DPP and by the police, as well as factors relevant to an internal investigation of the incident and the actual criminal prosecution.

  12. The plaintiff is bound to identify the improper purpose which it is said gives rise to the malice aspect of the claim. The plaintiff claims that the improper purpose was personal animosity on the part of Detective Inspector Flaherty, but the actual incidents and allegations do not involve Detective Inspector Flaherty and relate, instead, to general bullying or actions of other officers and as such the pleading is embarrassing and confusing.

  13. There is no pleading that the DPP was aware of the alleged improper purpose. There is also no explanation of how the personal animosity on the part of Detective Inspector Flaherty, or the general bullying is said to be the predominant motivation behind the prosecution. This is especially so when independent legal advice was sought by Detective Inspector Flaherty before the matter progressed for prosecution.

  14. In short, the essential elements of a claim for malicious prosecution have not, on the applicant’s submission, been properly pleaded. The Statement of Claim does not plead material facts which establish or would, if proved, establish each of the essential elements to give rise to malicious prosecution.

  15. Over and above the foregoing, the claims for misfeasance in public office are also not properly pleaded. First, the Statement of Claim does not plead facts that are said to support the allegations. The allegations are serious and involve concocting evidence and collusion.

  16. The pleading does not elucidate how the conclusions as to concocting evidence and collusion arise and no material facts are pleaded, which would establish such conclusions of fact. The invalid and unauthorised acts that the plaintiff says were performed by Detective Inspector Flaherty are not identified. The pleading is incomplete and falls short of that which is required to plead this type of claim. The pleading should be struck out.

  17. As to the claim for the intentional tort of collateral abuse of process, the defendant/applicant, in its submissions, also states that these have not been properly pleaded. The defendant says that the plaintiff is required to prove that proceedings were instituted for a purpose that is not permitted by the legal process that has been commenced or, otherwise put, to obtain a collateral advantage and coerce the defendant in some way. The defendants submit that, without a pleading or allegations of material fact that allege an advantage or collateral purpose, the tort is not properly pleaded.

  18. The Statement of Claim seeks to impute a purpose, without expressing it. The purpose that is sought to be implied, it is submitted, is not a purpose that would advantage Detective Inspector Flaherty nor anyone in his position. The plaintiff was disciplined for his role in the conduct and, as a consequence of that, could have been terminated by the Commissioner, if the Commissioner were so satisfied. If, therefore, the “collateral purpose” was the termination of the plaintiff, such a purpose was available without the commencement of the criminal proceedings. Again, the defendant submits that the pleading is deficient and should be struck out.

  19. In the alternative to the submission that the intentional torts must be treated under the Workplace Injury Management and Workers Compensation Act and WCA as workplace injuries, the defendant/applicant submits that the Statement of Claim, as currently framed, is inadequate in dealing with vicarious liability for the alleged intentional torts and it is unclear, from the Statement of Claim, whether vicarious liability is alleged. If, contrary to the defendant’s submission, the intentional torts, or any of them, are not workplace injuries within the regime established under the Workplace Injury Management and Workers Compensation Act and WCA, then the damages claim for alleged abuse of public duties, malicious prosecution or collateral abuse of process is an inappropriate addition to a claim under the workers compensation regime.

  20. First, the Crown, not the insurance scheme, ought to be the proper respondent and ought to be responding to such claims. Secondly, the limitations on damages are significantly different, if there had been a limitation in relation to the intentional torts. Lastly, the intentional torts are police torts, within the meaning of the Law Reform (Vicarious Liability) Act 1983 (NSW) and any claim arising from such torts should be brought as a separate action as a suit against the Crown.

  21. Further, again, the defendant submits that the Statement of Claim should be struck out for want of clarity and specificity. Given that the plaintiff has made allegations of criminal conduct, collusion, and the concocting of evidence (if such is not included within the term “criminal conduct”), each of which is extremely serious, the Court should intervene and stay the proceedings until there is a proper pleading, which pleads how these allegations are maintainable.

  22. In relation to the motion, the defendant seeks costs forthwith.

Submissions of the Respondent/Plaintiff

  1. The plaintiff accepts that two distinct claims are being advanced in the Statement of Claim. The first claim is for work injury damages; the second is for all or each of the intentional torts.

  2. The plaintiff submits that the Statement of Claim complies with the preconditions of the Workplace Injury Management and Workers Compensation Act, because the work injury damages component is not materially different to what was proposed in the Pre-Filing Statement. The plaintiff also submits that the intentional tort claims are arguable within the meaning of the principle established as applicable to a claim to strike out proceedings.

  3. The plaintiff relies upon the judgment of the District Court, on appeal in the criminal proceedings preferred against him, when the District Court set aside his conviction. [1] In those proceedings, and in the comments and/or reasons related to the setting aside of the conviction, the learned District Court Judge expressed disquiet and unease with the circumstances of the prosecution. The District Court Judge noted that there was a prospect of contamination or concoction of evidence.

    1. GM v R (District Court (NSW), Williams SC DCJ, 26 August 2021, unrep).

  1. The plaintiff’s submissions concentrate on whether the claims are unarguable, but do not engage sufficiently with the allegation that the claims are not properly pleaded.

  2. The thrust of the plaintiff’s position is that he is bringing two proceedings in one Statement of Claim. Such a process is in accordance with the overriding purpose of the Civil Procedure Act 2005 (NSW) in that it facilitates a just, quick and cheap resolution of the issues between the parties.

  3. The plaintiff maintains that issues going to insurance and which of a number of State departments would have responsibility for each different set of claims is an irrelevant consideration for the Court and not a matter which should be used against a plaintiff who is proceeding against the same defendant.

Legislation

  1. Many of the provisions of the WCA and the Workplace Injury Management and Workers Compensation Act have been summarised in the course of summarising the submissions of the State. As already indicated, the Workplace Injury Management and Workers Compensation Act modifies common law damages in relation to the award of damages in respect of an injury to a worker caused by the “negligence or other tort of the worker’s employer”. [2]

    2. Workers Compensation Act 1987 (NSW), s 151E.

  2. In the case of damages for such an injury, the only damages that may be awarded are damages for past economic loss due to loss of earnings and damages for future economic loss due to the deprivation or impairment of earning capacity. [3] Further, by operation of s 151H of the WCA, no damages may be awarded unless the injury has resulted, relevantly, in a degree of permanent impairment (“WPI”) of the injured worker that is at least 15%.

    3. Ibid, s 151G.

  3. The assessment of WPI is required to be performed by Medical Assessors, assuming for present purposes that the assessment is a matter of dispute between a worker and the worker’s employer. [4]

    4. Workplace Injury Management and Workers Compensation Act 1998 (NSW), ss 121, 127, 287, 288.

  4. Once the Personal Injury Commission (hereinafter “the Commission”) is seized of a reference, it is required to determine the dispute between a worker or claimant and the employer. If, in circumstances of a referral to the Commission, there be a dispute as to the degree of WPI resulting from an injury, a claimant worker cannot commence court proceedings unless and until a Medical Assessor has determined the WPI under Pt 7 of the Workplace Injury Management and Workers Compensation Act. [5]

    5. Ibid, s 313.

  5. The provisions of s 315 of the Workplace Injury Management and Workers Compensation Act require a claimant, before commencing court proceedings for the recovery of work injury damages, to serve on the defendant a Pre-Filing Statement setting out “such particulars of the claim and the evidence that the claimant will rely on to establish or in support of the claim as the Commission rules may require”. Section 314 of the Workplace Injury Management and Workers Compensation Act prevents the service of a Pre-Filing Statement before the degree of permanent impairment has been assessed as sufficient for an award of damages. The defendant is required to respond to a pre-filing statement.

  6. By operation of s 318 of the Workplace Injury Management and Workers Compensation Act, as stated earlier, a claimant is confined, in any proceedings, to a Statement of Claim that is not materially different from the proposed Statement of Claim that formed part of the Pre-Filing Statement. The same confinement applies, the necessary changes being made, to the defendant and the proposed Defence filed with its Pre-Filing Statement. Exceptions exist for the filing of a materially different Statement of Claim, but only with the leave of the Court.

  7. It is also necessary to reiterate that the leave of the court, exempting a party from that which is contained in the Pre-Filing Statement, is available only where the claim that is materially different from the claims made in the Pre-Filing Statement was not reasonably available to the party at the time that the Pre-Filing Statement was served and, even then, in circumstances where the failure to grant leave would substantially prejudice the party’s case.

  8. There is no suggestion that the claim for intentional torts was not reasonably available to the plaintiff/respondent at the time that the Pre-Filing Statement was served or that the material upon which the claim for intentional torts is based was not reasonably available.

  9. One other matter in the legislature needs noting. The legislature, by s 2A of the WCA, has prescribed that the WCA and the Act are to be read as if they were one and the same piece of legislation. Further, the WCA defines “injury” as meaning “personal injury arising out of or in the course of employment” and then prescribes that it includes disease, injury, which is defined, and does not include injuries arising from dust diseases.

  10. Somewhat oddly, given that the two Acts are to be read together, the term “injury” is also defined in the Act as meaning “a personal injury arising out of or in the course of employment” and, again, is defined to include certain diseases and not to include dust diseases. The objects of the Act include: securing the health, safety and welfare of workers; preventing work-related injury; providing prompt treatment of injuries; effective and proactive management of injuries and medical and vocational rehabilitation in order to assist injured workers; the provision of income support to injured workers for permanent impairment or death and the payment of reasonable treatment; as well as implementing a fair, affordable and financially viable scheme, which seeks to ensure contributions by employers are equitable.

Consideration

  1. The primary submission of the State is based upon its construction of the term “other tort” in s 151E(3) of the WCA. Essentially, the State submits that, because each of the intentional torts is, by definition or otherwise, a tort, it is caught by the term “other tort” in the provision, which, then, requires the plaintiff to include the intentional torts in the Pre-Filing Statement.

  2. The plaintiff did not and, for one, or both, of two reasons, the Statement of Claim is inappropriate to commence proceedings. The two fundamental reasons are: that the intentional torts, on the forgoing analysis, are required to be included in the Pre-Filing Statement; and, secondly, the plaintiff is disentitled from following a Statement of Claim that is materially different from the claims in the Pre-Filing Statement.

  3. It is necessary to deal with the term “other tort”. Usually, the use of the term “other” brings into play the ejusdem generis rule of construction which confines the general words to the class of the specific words that it follows. Lord Diplock, explaining the rule, said:

“the presumption then is that the draughtsman’s mind was directed only to [the genus indicated by the specific words] and that he did not, by his addition of the word ‘other’ to the list, intend to stray beyond its boundaries, but merely to bring within the ambit of the enacting words those species which complete the genus but have been omitted from the preceding list either inadvertently or in the interests of brevity.”[6]

6. Quazi v Quazi [1980] AC 744 at 807-808.

  1. This approach and/or explanation was cited with approval and relied upon by Spigelman CJ to the effect that if there are not at least two different species identified, it is not possible to determine a relevant genus which may then be used to read down the general words which follow it. [7] Here there is not more than one description and, on the reasoning of Spigelman CJ, the term “other” ought not to be used to read down the general words.

    7. Deputy Commissioner of Taxation v Clark (2003) 57 NSWLR 113 at 143; [2003] NSWCA 91.

  2. All statutory construction involves the Court obtaining the intention of the legislature and the purpose of the legislation from the words of the statute. [8] However, there are many instances of limitations being placed on a term, even though two or more members of the class or genus have not been described.

    8. Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28.

  3. In Stryke Corporation Pty Ltd v Miskovic [9] , the Court of Appeal was dealing with an issue as to whether a claim under the then Trade Practices Act 1974 (Cth) was caught by the term “other tort”. Santow JA, after dealing with the notion of material difference between the Pre-Filing Statement and the Statement of Claim, dealt with the issue in that context, and said:

“In that definition the expression ‘other tort’ is used in contradistinction to the tort of negligence. That opens this category to encompass any common law tort such as trespass. It may likewise encompass civil liability, which may arise from breach of a statutory duty.”[10]

9. [2007] NSWCA 72.

10. Stryke Corporation Pty Ltd v Miskovic [2007] NSWCA 72 at [61] (Santow JA).

  1. If the expression “other tort” was intended to include every tort known to the law, there would be obvious tensions that would take the provision outside the purposes of the legislation. For example, if a courier employed by the Crown was said to be involved in an accident and was charged with one of the more serious criminal offences relating to driving, e.g., dangerous driving causing death, etc., and it was found that the charge was one for which malicious prosecution ran, the mere fact that the courier was employed by the Crown or the State of New South Wales would not seem to require that the malicious prosecution proceedings be taken under the Act.

  2. Nevertheless, there are obvious torts for which the purpose of the legislation would be subverted if the proceedings were taken otherwise than under the Act. For example, if an employer had an unsafe system of work the effect of which was that the employee slipped in the workplace, which was owned and occupied by the employer, the mere fact that the tort was an action taken against the employer in the employer’s capacity as the owner or occupier would not be an appropriate distinction. Such a distinction would be inconsistent with the purposes of the Act.

  3. As a consequence, while some distinction to confining the torts covered seems necessary, it would seem that a distinction based upon whether the action is taken against the employer, in that capacity, does not fulfil the requirements to achieve the purposes of the legislation. However, there is a far more obvious distinction which ought to be drawn.

  4. The WCA and the Act comprise a legislative scheme dealing with workplace injuries. As noted above, the term injury is defined in both the Act and in the WCA.

  5. Each piece of legislation is, with currently irrelevant exceptions relating to dust diseases, intended to deal with compensation for injury and diseases arising out of or in the course of employment. Trespass, the tort mentioned earlier in the comment of Spigelman CJ, and occupiers’ liability arise in circumstances where the alleged “victim” has suffered injury or illness as a consequence of the breach of duty.

  6. The intentional torts do not depend, nor do they generally compensate, illness or injury. Torts such as defamation, false arrest, malicious prosecution and collateral abuse of process generally compensate damages that are not related to an injury or illness inflicted on or contracted by the “victim”. Indeed, in such torts, economic loss is not the usual basis upon which damages are awarded. Of course, special damages, such as loss of earnings, may be the result of such a claim, but the damage is measured by the loss of freedom, the damage to reputation, and other such bases. Special damages may arise because of the effect of the damage to reputation, the effect of the loss of liberty on the ability to earn income, and the like.

  7. Since the WCA and the Act are concerned only with damages for injury (which for present purposes and for the remainder of these reasons includes its defined meaning) and the intentional torts claimed by the plaintiff/respondent do not, at least in part, concern injury, in the defined sense or otherwise, the provisions of Div 3 of the WCA modifying common law damages and requiring a WPI of 15% do not apply to damages other than damages in respect of an injury and therefore do not apply to the other aspects of the intentional torts.

  8. Similarly, the provisions of Pt 6 of the Act apply only to a claimant for “work injury damages”, which is confined to personal injury (as defined), arising out of or in the course of employment. [11]

    11. Workplace Injury Management and Workers Compensation Act 1998 (NSW), s 4 (“injury”, “work injury” and “work injury damages”), s 250 (“work injury damages”), s 315 (limited to “work injury damages”), and s 318 (limited to “work injury damages”).

  9. A construction of the scheme established by the WCA and the Act such that it applies to injuries (as defined) and not to so much of “other torts” that do not depend upon damages for an injury to the victim meets, in my view, the purposes of the legislation and allows for the scheme to cover all injuries (as defined) sustained as a result of the conduct of the employer, either directly or vicariously, but not to torts insofar as they do not involve the sustaining of any injury. On that basis, a plaintiff need not include such torts in a Pre-Filing Statement and the primary submission of the defendant/applicant should be rejected. However, to the extent that any or all torts claim damages for an injury sustained arising out of or in the course of employment of the claimant, the tort and claim needs to be the subject of notice in the Pre-Filing Statement.

  10. The next issue requiring attention is whether the intentional torts, to the extent they do not claim damages for personal injury, may be appropriate to be included in a Statement of Claim that is otherwise governed by the workplace injury scheme. There can be no doubt that damages would be calculated on a very different basis and the causes of action are quite dissimilar. However, it is also necessary to note that the Civil Procedure Act has an overriding purpose that the parties, legal practitioners and the courts must facilitate the just, quick and cheap resolution of the real issues between the parties.

  11. There is much legislation that has been aimed at avoiding a multiplicity of proceedings. A multiplicity of proceedings is to be avoided, unless it is essential for the just, expeditious and cost-effective resolution of the issues between the parties. Those issues are defined by the pleadings themselves.

  12. In the ordinary course, there are no longer juries empanelled for the hearing of civil proceedings. As a consequence, it is for the parties and a judge to differentiate between the damages that may be awarded and/or the evidence that is relevant to one or more of the causes of action raised in the Statement of Claim or part of the cause of action.

  13. It is not unusual for different causes of action, involving different damages and different relevant evidence, to be heard in one proceeding. On one view, at least, compensation under the Australian Consumer Law may, in certain circumstances, be differently calculated than damages at common law for misrepresentation or other like torts. The examples of such situations are numerous.

  14. In these proceedings, much of the evidence would be identical and almost all the evidence in each proceeding would be admissible in the other proceeding. Ultimately, such issues are for the trial judge.

  15. Nevertheless, there seems to be no good reason why a Statement of Claim cannot deal with both the work injury damages under the WCA and the Act as well as other damages under other causes of action not so covered. I do not consider it inappropriate for the Statement of Claim, filed by the plaintiff, to allege injury arising out of or in the course of employment, covered by the workplace injury scheme, and other damages calculated under different or the same causes of action that are not so covered.

  16. Lastly, I deal with the issues raised in relation to the adequacy of the pleadings. In so doing, it is necessary, albeit briefly, to deal with the elements of each of the intentional torts.

  17. As the High Court has stated:

“For a plaintiff to succeed in an action for damages for malicious prosecution the plaintiff must establish:

(1)    that proceedings of the kind to which the tort applies (generally, as in this case, criminal proceedings) were initiated against the plaintiff by the defendant;

(2)    that the proceedings terminated in favour of the plaintiff;

(3)    that the defendant, in initiating or maintaining the proceedings acted maliciously; and

(4)    that the defendant acted without reasonable and probable cause.”[12]

12. A v State of New South Wales (2007) 230 CLR 500; [2007] HCA 10 at [1].

  1. In malicious prosecution proceedings, damage is presumed. In the foregoing element a defendant must be a prosecutor in the proceedings and in that respect needs to have instituted the proceedings. A person institutes proceedings by prosecuting them, instigating them, or setting them in motion. It requires the defendant to be actively instrumental in procuring the use of legal process against the plaintiff. [13]

    13. Commonwealth Life Assurance Society Ltd v Brain (1935) 53 CLR 343; [1935] HCA 30.

  2. Malice, in the sense used by the High Court in outlining the elements of malicious prosecution, has been the subject of much authority. It is unnecessary in the circumstances of this interlocutory judgment to summarise that authority. It is sufficient, for present purposes, to state that the malice must be pleaded in a way which is capable of being understood and answered.

  3. Many of the attributes of malicious prosecution apply in similar manner to collateral abuse of process. Collateral abuse of process requires:

  1. that the party who has instituted the impugned proceedings has done so for a purpose or to effect an object beyond that which the legal process offers;

  2. the purpose of the party instituting the impugned proceedings is of crucial importance;

  3. the abusive purpose of the impugned proceedings must be the predominant or effective purpose; and

  4. the onus of proof on the plaintiff in order to succeed in a claim of collateral abuse is a heavy one. [14]

    14. Williams v Spautz (1992) 174 CLR 509 at 523, 524 and 529; [1992] HCA 34.

  1. In order to establish collateral abuse of process, it is unnecessary to establish the absence of reasonable and probable cause, but it is necessary to prove damage, which is presumed in relation to malicious prosecution. Further, in collateral abuse of process it is not an element of the claim for the impugned proceedings to terminate in favour of the plaintiff.

  2. The essence of collateral abuse of process is malice: the purpose of the initiator of the proceedings to achieve a purpose extraneous to the purpose for which proceedings of that kind were designed. [15]

    15. Flower & Hart (a firm) v White Industries (Qld) Pty Ltd (1999) 87 FCR 134; [1999] FCA 773.

  3. Lastly, in relation to the intentional torts, it is necessary to deal with the tort of misfeasance in public office, which is claimed as part of the intentional torts in the Statement of Claim. Misfeasance in public office is not constituted merely by an act of a public officer which the public office knows is beyond power and which, as a result of the exercise, results in damage. [16]

    16. Northern Territory v Mengel (1995) 185 CLR 307; [1995] HCA 65.

  4. Rather, the tort is committed when damages suffered as a result of an act done by a public officer with the intention of causing harm to the plaintiff which he knows, or ought to know, is beyond power and which involves a foreseeable risk of harm. [17]

    17. Ibid, (Mason CJ, Dawson, Toohey, Gaudron and McHugh JJ).

  1. It is then necessary to deal with the allegations in the Statement of Claim and the appropriate manner of dealing with the proceedings. To the extent that it is said that the intentional torts caused physical damage or illness, then the physical damage or illness, caused by the employer or his agent, should, on the analysis above, be dealt with under the scheme for the determination of workplace injury.

  2. In this case, significant aspects of the damage said to be caused by the intentional torts are types of injury, being PTSD and the other psychological disorders. Further, the intentional torts are said to be part of the “bullying” and “harassment” that occurred in the workplace. The malice, to the extent it can be inferred from the Statement of Claim, also arises from the workplace conduct. As a consequence, at least in that respect, the damage that may be claimed under the intentional torts should have been the subject of notice in the pre-Filing Statement of the plaintiff. Conversely, to the extent that the other torts are utilised to claim damage that is not the cause or a cause of physical injury or illness, such a Claim is permissible and can be the subject of a “combined” Statement of Claim.

  3. Confined in that way, the Statement of Claim needs to be fundamentally and significantly re-drafted. It is, therefore, not necessary to deal in detail with the “pleading points” in order to come to the conclusion that the Statement of Claim must be struck out.

  4. In relation to the claim for misfeasance in public office, as I understand the Statement of Claim, there is no suggestion that, assuming Detective Inspector Flaherty took relevant steps to prosecute the plaintiff, those steps, even if it could be proved that it was for as extraneous motive, was conduct that was beyond the power of the relevant police officer. Assuming for present purposes, which I am prepared to accept is an arguable proposition, that the actions of Inspector Flaherty rendered him a prosecutor and that he initiated the proceedings, nothing in the Statement of Claim would suggest that such conduct, or any other conduct, even if malicious, was beyond power. Further, it is irrefragable that a police officer has within his or her power the capacity to initiate proceedings, at least, as in this case, on the advice of the DPP. The claim for misfeasance in public office is unarguable and should be struck out.

  5. As for the other two intentional torts, the pleadings are, for the reasons given by the State, wholly deficient and embarrassing. Embarrassing, in this context, refers to the proposition that they do not contain sufficient material to enable the State to answer the allegation. It must be said that there is much force in the submission of the State to the effect that, if the “extraneous purpose” was to cause the termination in employment of the plaintiff, such a course could have been effected far more simply than the commencement or initiation of proceedings. But that is an argument going to motive and purpose and depends on fact-finding and cannot be the basis of a strike-out of proceedings.

  6. For the foregoing reasons, the Statement of Claim needs to be redrafted. To the extent that it is alleged that a workplace injury occurred (being the psychiatric conditions), such injury must be dealt with in accordance with the WCA and of the Act. Because none of the causes of action for the intentional torts were pleaded in the proposed Statement of Claim filed with the Pre-Filing Statement, the Statement of Claim is materially different from the claim in the Pre-Filing Statement.

  7. Consequently, to the extent that the Statement of Claim alleges physical injury (including psychiatric injury) as a result of the intentional torts or any of them, that claim is inconsistent with s 318 of the Act. It cannot be pursued in these proceedings under the current pleadings.

  8. To the extent that the intentional torts are otherwise pleaded, they insufficiently plead the material facts that go to each of the elements of the tort in question and must be repleaded. To the extent that the Statement of Claim pleads misfeasance in public offer, it does not disclose an arguable case and is to be struck out.

  9. The issue then arises as to what next must occur. It would seem arguable that any damage caused by the intentional torts was damage caused that arose out of or in the course of employment. Nevertheless, there are two options available. Given the extent to which the Statement of Claim requires alteration, and the overarching and pervading nature of the errors associated with the foregoing, it seems appropriate to strike out the Statement of Claim and allow the plaintiff to re-plead in accordance with the foregoing rulings.

  10. However, to the extent that the plaintiff seeks to press the infliction of injury (including psychiatric injury) as a result of the intentional torts, then it would be necessary for the plaintiff to file a fresh Pre-Filing Statement raising such issues and such causes of action and, in that circumstance, the proceedings themselves would need to be discontinued or struck out.

  11. I will hear the parties separately on that latter aspect, after the parties have had a short time to consider the issues. In particular, it requires the plaintiff to consider the manner in which he seeks to progress the proceedings.

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Endnotes

Decision last updated: 21 November 2023

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A v New South Wales [2007] HCA 10
A v New South Wales [2007] HCA 10
A v New South Wales [2007] HCA 10