McLeod v Thorpe - [2017] SADC 38

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil: Appeal Against a Master's Decision)
MCLEOD v THORPE & ANOR
[2017] SADC 38
Judgment of Her Honour Judge Bochner
13 April 2017
PROCEDURE - INFERIOR COURTS - SOUTH AUSTRALIA - DISTRICT COURT
Appeal from a Master - summary judgment - strike out.
District Court Civil Rules 2006 (SA) r 286, referred to.
McLean v DID Piling Pty Ltd [2010] SASC 33; Adelaide (SA Pools & Spas) Manufacturing and Installation Pty Ltd & Ors v Westcourt General Insurance Brokers Pty Ltd [2016] SASC 60; Tame v State of New South Wales (2002) 211 CLR 317; Halech v State of South Australia [2006] SASC 29; Christie & Anor v Leachinsky [1947] AC 573; Cunningham v Traynor [2016] WADC 168, applied.
Cameron v James [1945] VLR 113; Carter v Walker [2010] VSCA 340; Cran v New South Wales [2004] NSWCA 92; Ratcliffe v State of South Australia [2012] SADC 93; Attwells & Anor v Jackson Lalic Lawyers Pty Ltd [2016] HCA 16; D'Orta-Ekenaike v Victoria Legal Aid & Anor (2005) 223 CLR 1, discussed.

MCLEOD v THORPE & ANOR
[2017] SADC 38

JUDGE BOCHNER. On 14 July 2016, a Master of the District Court dismissed the plaintiff’s claim against the defendants, and entered judgment for the defendants, with an order that the plaintiff pay the defendants’ costs of the action and the application. The plaintiff appeals that decision.
Background
On 28 May 2010, sometime after midnight, the plaintiff was walking along King William Street, Adelaide, when he became embroiled in an altercation with two men. During the course of the altercation, a police car drove past, turned around and parked near where the altercation was taking place. The first defendant, Constable Thorpe, alighted from the vehicle, and after an exchange with the plaintiff, arrested him. Ultimately, the plaintiff was charged with three offences:
1.Behaving in a disorderly manner in a public place, namely King William Street.
2.Being a person reasonably suspected by the first defendant of having committed an offence and having been required by him to state his full name and address and refused, or failed, without reasonable excuse to comply with that requirement.
3.Resisting the first defendant in the execution of his duty.
The trial of the matter, which eventually led to the acquittal of the plaintiff of all charges, was not without incident. The complaint was initially dismissed by a Magistrate on the basis of the failure of the prosecution to provide formal particulars, and to secure certain CCTV footage which would, in all probability, have assisted the plaintiff in his defence of the charges. This decision was overturned on appeal in the Supreme Court. The trial then proceeded in the Magistrates Court on 13 June 2012, at which time, all charges against the plaintiff were dismissed.
This proceeding relates to the interaction between the plaintiff and the first defendant at the time of his arrest and subsequently, including the conduct of both defendants during the prosecution of the plaintiff.
The current action
On 28 May 2013, the plaintiff commenced these proceedings. He seeks relief on the basis of the following causes of action:
·False arrest.
·Trespass to the person.
·False imprisonment.
·Battery.
·Negligence.
·Misfeasance in public office.
·Malicious prosecution.
·Equitable fraud.
·Abuse of process.
·Defamation.
Suffice to say that the plaintiff’s statement of claim is lengthy, amounting to 495 paragraphs and seventy pages. It by no means complies with the Rules as to pleadings; it is discursive, contains argument, legal conclusions, assumptions, and much irrelevant material while simultaneously failing to particularise many of the allegations made. The defendants sought summary judgment, or in the alternative, that the statement of claim be struck out. It should be noted that the plaintiff was unrepresented up until the hearing of the appeal.
The Master entered judgment for the defendants and dismissed the plaintiff’s claim. In summary, the Master found:
·Certain findings made by the Magistrate at the hearing of the criminal charges meant that the plaintiff’s pleading in relation to battery, trespass to the person, false arrest, false imprisonment, malicious prosecution, and misfeasance in public office, were an abuse of process;
·The claims relating to malicious prosecution, equitable fraud and abuse of process were also an abuse of process because they sought to re-litigate matters already decided by Blue J in the Supreme Court;
·The claims in relation to negligence should be dismissed on the basis that, in relation to the negligent use of handcuffs, this matter had already been decided in the Magistrates Court, and in relation to all of the claims of negligence, the authorities establish that the defendants do not owe a duty of care to a person such as the plaintiff;
·The plaintiff’s claims in defamation must be dismissed on the basis that they are statute barred, and on the basis that they attract the defence of absolute privilege;
·The defendants were entitled to an order that the statement of claim be struck out on the basis that various paragraphs are scandalous, embarrassing, frivolous or vexatious. In this regard, the Master carried out a detailed analysis of the impugned paragraphs which was included as a schedule to his reasons for decision; and
·To a large degree, the plaintiff, by his statement of claim is seeking to re-litigate matters already decided by the Magistrates Court or the Supreme Court, and so it amounts to an abuse of process.
Thus, to a large extent, the Master relied on the findings made in the Magistrates Court and the Supreme Court in deciding that the plaintiff’s claim amounted to an abuse of process. This was not, however, his only basis for striking out the plaintiff’s claim and entering judgment for the defendants.
The basis for an appeal from a District Court Master is set out in Rule 286 of the District Court Civil Rules 2006 (SA) as follows:
286    (1) An appeal is to be by way of rehearing (unless the law under which the appeal is brought provides to the contrary).
(2) Subject to any limitation on its powers arising apart from these Rules, the Court may determine an appeal as the justice of the case requires despite the failure of parties to the appeal to raise relevant grounds of appeal, or to state grounds of appeal appropriately, in the notice of appeal.
(3) Subject to any limitation on its powers arising apart from these Rules, the Court may—
(a)     draw inferences of fact from evidence taken at the original hearing and, in its discretion, hear further evidence on a question of fact;
(b)     amend or set aside the judgment subject to the appeal and give any judgment that the justice of the case requires;
(c)     remit the case or part of the case for rehearing or reconsideration;
(d)     make orders for the costs of the appeal.
The nature of this type of appeal was discussed by Layton J in McLean v DID Piling Pty Ltd[1], where she said (at [18]):
[18] Accordingly, the appeal is to be by way of rehearing. This court is therefore obliged to conduct a real review of the decision and of the Master’s reasons. As Kirby J (with whom Gleeson CJ agreed) said in CSR Ltd v Della Maddalena:
[T]he appellate court is obliged to conduct a thorough examination of the record and a real rehearing. It is not confined to reconsideration of the record in order to correct errors of law, although that will certainly be encompassed in such an appeal. It is required to consider suggested errors of fact-finding. Experience teaches that many errors of this kind arise at first instance, more perhaps than errors of law. Having concluded a rehearing as so described, the appellate court is obliged to “give the judgment which in its opinion ought to have been given in the first instance”. This involves, where, as here, there is no jury, conducting a thorough review of the primary judge’s reasons and engaging in the tasks of “weighing conflicting evidence and drawing … inferences and conclusions”.
[Footnotes omitted.]
[1] [2010] SASC 33.
In relation to an appeal from an exercise of discretion, she went on to say (at [22]-[23]):
[22] … it is appropriate to follow the well known rules in House v R, which case sets out the circumstances in which an appellate court would disturb an exercise of discretion. In that case the High Court said (at 504–5):
The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.
[23] Accordingly, it is necessary that the appellant identify an error by the Master of the kind described in House v R before any appeal should be allowed. [Citation omitted.]
These principles were recently restated by Doyle J in Adelaide (SA Pools & Spa) Manufacturing and Installation Pty Ltd & Ors v Westcourt General Insurance Brokers Pty Ltd[2].
[2] [2016] SASC 60 at [22].
These are the principles that I will apply in determining this matter.
The appeal
The notice of appeal listed 53 grounds in relation to which the plaintiff said the Master erred. These included a breach of the rules of natural justice, errors in characterising the statement of claim as prolix, scandalous, frivolous and vexatious taking into account that it was drafted by a lay person, errors in the application of the judgment in the Magistrates Court, and errors in the application of authorities such as Tame v State of New South Wales[3] (Tame) and Halech v State of South Australia[4] (Halech). In his written submissions, in addition to enlarging on the matters in the notice of appeal, the plaintiff submitted that the Master erred in determining that the first defendant should be removed as a defendant as a result of the application of the principles set out in McDonald & Anor v State of South Australia (No 3)[5], as well as “requesting” the Court not to consider submissions made by the Crown Solicitor’s Office on behalf of the first defendant. At the hearing of the appeal, however, the plaintiff relied on one ground only, the misinterpretation by the Master of the decisions relating to this matter in the Magistrates Court and in the Supreme Court. The plaintiff says that this misinterpretation has led to default judgment being granted against him.
[3] (2002) 211 CLR 317.
[4] [2006] SASC 29.
[5] [2016] SASC 79.
Given the plaintiff’s position that the crux of this appeal rests with the true construction of the findings of the Magistrate and the Supreme Court, it is important to determine what findings were made in each of those Courts.
What was decided by the Magistrate?
The trial in relation to the charges laid against the plaintiff was held before a Magistrate with judgment delivered on 16 June 2016. It is the contention of the plaintiff that the findings of the Magistrate are confined and do not go so far as to justify all of the actions of the first defendant, as argued by the defendants. He says that the Magistrate’s findings are confined to the following:
1.That while the conduct occurred, it did not amount to disorderly conduct.
2.That the first defendant had a reasonable basis for asking the plaintiff his name and address.
He submitted that the Magistrate did not make generalised findings about the conduct of the police, and that the findings he did make only extended to the events at the time of the arrest, and not to events thereafter.
The defendants, on the other hand, dispute the interpretation that the plaintiff places on the Magistrate’s findings in relation to the occurrence of the conduct. As to the second finding contended for by the plaintiff, the defendants submitted that the Magistrate found beyond reasonable doubt that the first defendant reasonably suspected that the plaintiff had committed an offence.
In my view, the findings of the Magistrate are quite narrow, and do not go as far as suggested by the defendants.
The plaintiff was charged with three offences. They are:
1.Behaving in a disorderly manner in a public place, namely King William Street;
2.Being a person reasonably suspected by Samuel Thorpe, a member of the police force, of having committed an offence and having been required by such member to state his full name and address and refused, or failed, without reasonable excuse to comply with that requirement; and
3.Resisting Samuel Thorpe, a member of the police force, in the execution of his duty.[6]
[6] Police v McLeod, Magistrate Smart, delivered 13 June 2012 at [1].
After describing the evidence of the various witnesses as to the events in question, the Magistrate said the following:
As concerns count 1, there is no real contest between the parties that the conduct said to amount to the disorderly behaviour did in fact occur and I am, in any case, satisfied that it did on the basis of the observations made by the police. …[7]
[7] At [17].
The Magistrate then proceeded to find the plaintiff not guilty of count 1. In my view, this can only be interpreted in one way: that the conduct complained of did occur, but it did not amount to disorderly behaviour.
In relation to count 2, he said the following:
… The charge is that the defendant refused, or failed, without reasonable excuse, upon request, to state his full name and address. There is no contest as to the first element of the offence and I am, in any case, satisfied beyond a reasonable doubt that Thorpe did believe, or reasonably suspect, the defendant had committed an offence of assault on the basis of his observations. Rather, the issue between the parties is whether it has been proved beyond a reasonable doubt that, in fact, Thorpe asked him to state his full name and address or whether it is reasonably possible he did not and merely asked for his identification. …[8]
[8] At [18].
The Magistrate found the plaintiff not guilty of count 2. It is clear that the only finding that the Magistrate made was that Thorpe (the first defendant) believed or reasonably suspected that the defendant had committed an offence of assault. His findings go no further than this.
In respect of count 3, the Magistrate made no findings, other than that he was unable to conclude beyond reasonable doubt, exactly what did take place. As a result, the plaintiff was acquitted of this charge also.
There are a number of other matters raised by the Magistrate which are worth noting:
·The Magistrate retained a doubt as to whether the plaintiff had been asked his name and address;
·The plaintiff says that he asked the first defendant if he was under arrest and for what, which was denied by the first defendant;
·The first defendant said that he told the plaintiff that he may be arrested for failing to provide his name and address, which is denied by the plaintiff;
·The Magistrate chose not to accept the evidence of the first defendant where that was not supported by other witnesses.[9]
[9] See for example [18].
In summary the Magistrate made only two findings:
·that the conduct complained of did occur, but it did not amount to disorderly behaviour; and
·that the first defendant believed or reasonably suspected that the defendant had committed an offence of assault.
What was decided by Blue J?
The matter came before Blue J as a Magistrates Appeal. Prior to the final determination of the matter in the Magistrates Court, the charges against the plaintiff had been dismissed because the prosecution had not provided him with particulars, and because CCTV which may have assisted the plaintiff’s defence was no longer available. This decision was appealed by the police and overturned by Blue J. This was the first decision that Blue J made in relation to this matter[10] (the first Blue decision).
[10] Police v McLeod [2011] SASC 160.
At various stages prior to the trial, the plaintiff had made enquiries as to the existence of CCTV footage from the Ambassadors Hotel and Bank SA. He subsequently wrote to the police, asking them to obtain a copy of the footage, as the Bank had advised him that they would only provide it to the police following a formal request from them. The plaintiff advised the police that the footage would only be retained by the Bank for a period of three months. The plaintiff repeated this request in writing to the police approximately two months later, after also raising it with the Magistrate during an appearance in Court. When the police requested the footage from Bank SA, they were advised that it was no longer available as the period of 90 days had elapsed, after which such recordings were not retained.
In addition, on various occasions, the plaintiff had sought particulars from the police. The plaintiff contended that the particulars provided were inadequate.
In the first Blue decision, Blue J set out the facts of the matter, and the reasons why he considered that the Magistrate erred. On reconsidering the matter, Blue J found that the plaintiff was entitled to further particulars. He noted, however, the following:
… In this case, there was no direction by the Magistrate that particulars be provided. There was no refusal by the Police to provide particulars in the face of such a direction. On the contrary, the Police indicated that they would provide the particulars if so directed. The particulars which had been provided by the Police on 11 March 2011 were not egregiously inadequate, and there is no reason to find that they were not provided in the subjective belief that they were adequate.[11]
[11] At [91].
He distinguished the plaintiff’s case from one where it was claimed by the accused that the complaint was invalid, on the basis that the plaintiff accepted that in his case, the complaint was valid. As a result, Blue J found that the complaint should not have been dismissed for failure by the police to provide particulars.
In relation to the loss of the CCTV footage, Blue J examined the principles which govern when a loss of evidence should lead to the permanent stay of a matter. He concluded that determining whether a loss of evidence led to an abuse of process or unfairness, a two stage process may be adopted:
The first, or threshold, stage involves a consideration of the lost evidence itself and whether relevant unfairness to the defendant has been demonstrated. The following general propositions apply, although every case must be considered on its own facts and it is unwise to lay down rigid or universal rules.
1The evidence must have once existed and have been lost or destroyed or otherwise become unavailable.
2The lost evidence must have been relevant to the case.
3The lost evidence must have been material, in the sense of being capable of affecting the result of the case.
4The lost evidence must, at least in a typical case, have been exculpatory of the defendant (on evidence deployed by or relied on by defence).
5The unavailability of the evidence must in a typical case be the responsibility (partly or wholly) of the prosecution.
…
The second stage involves a balancing of the public interest in criminal proceedings being brought to trial against unfairness to the accused by reason of the loss of the evidence. The following general propositions apply, although again every case must be considered on its merits and it is unwise to lay down rigid or universal rules.
1There is a public interest that prosecutions be brought to trial and that the court not be denied jurisdiction to determine the matter on the merits.
2In general terms, the more important the evidence which has been lost, the greater the risk (likelihood and degree) of unfairness and hence the stronger the case for a permanent stay.
3In general terms, the more culpable the conduct of the prosecution responsible for the loss of the evidence, the stronger the case for a permanent stay.
4In general terms, the stronger the prosecution case on the relevant issue or issues, the lesser the risk of unfairness and hence the less strong the case for a permanent stay.
5In general terms, the more effective alternative methods (if any) of protection and redress to the defendant during the course of the trial vis à vis the lost evidence, the lesser the risk of unfairness and hence the less strong the case for a permanent stay.[12] [Citations omitted.]
[12] At [99]-[102].

In discussing these propositions, he said that responsibility for the loss of evidence was an important factor in deciding whether to grant a stay; a stay would not ordinarily be granted unless the prosecution was responsible for the loss[13]. He also noted the following[14]:
This is a corollary of the well-established propositions that a complete and unexceptionable investigation of an alleged crime is not a necessary element of a fair trial and that trials properly proceed on a daily basis in circumstances in which less than all possible evidence is available. [Citations omitted.]
[13] At [130].
[14] At [131].
Following discussion of the legal principles set out above, Blue J proceeded to examine the decision of the Magistrate in relation to granting a permanent stay. He found that the Magistrate erred in reaching the decision that the proceedings should be permanently stayed. He deferred further consideration of this question to the second stage of the appeal, having noted that he agreed that:
… the circumstances potentially rendered the Police partially responsible for the loss of the footage. …[15]
[15] At [138].
In summary, the findings (relevant to this matter) that Blue J made in the first Blue decision are:
·the plaintiff required further particulars;
·the police did not refuse to provide the particulars in the face of a direction from the Magistrate;
·the particulars provided were not egregiously inadequate;
·there was no reason to believe that the police did not consider (subjectively) the particulars to be adequate;
·the questions of responsibility and culpability for the loss of the CCTV footage would be dealt with in the second stage of the appeal; and
·the materiality of the CCTV footage would be dealt with in the second stage of the appeal.
Blue J addressed the question of whether a permanent stay should be granted in Police v Marcus McLeod (No 2)[16] (the second Blue decision). In dealing with this stage of the appeal, he allowed each party to introduce further evidence, including both oral and affidavit evidence. He dealt in substance with the requirements of materiality and prosecution responsibility for the loss of the evidence, noting that the requirements of existence and loss, relevance and the potentially exculpatory nature of the evidence had been established.
[16] [2011] SASC 204.
Having examined the evidence of both the plaintiff and of the Police, Blue J found that the lost CCTV footage was potentially material, albeit with a low degree of likelihood that it would have changed the outcome of the prosecution[17].
[17] At [36].
Blue J specifically rejected the contention of the plaintiff that:
… it was the responsibility of the prosecution to obtain all available relevant evidence of its own volition, rather than waiting for a request from the defendant. …[18]
[18] At [30].
He concluded that the loss of the footage was not the responsibility of the prosecution[19]. This conclusion was based on his finding that the footage had probably been overwritten by the time of the plaintiff’s first request to the police to obtain it[20]. In the alternative, he found that if he was wrong about the footage already having been overwritten by the time of the plaintiff’s request, the plaintiff was jointly culpable for the loss of the evidence[21].
[19] At [31].
[20] At [29].
[21] At [40]
In summary, the findings made by Blue J in the second Blue decision are:
·the lost CCTV footage was potentially material, albeit with a low degree of likelihood that it would have changed the outcome of the prosecution;
·the prosecution did not have a responsibility to obtain all available relevant evidence of its own volition, rather than waiting for a request from the defendant;
·at best, the plaintiff and the prosecution were jointly responsible for the loss of the CCTV footage. More likely, the prosecution was not responsible for the loss of the footage.
Consideration of the appeal
In considering the appeal, I will deal with the issues raised in the order in which they are dealt with by the Master.
Abuse of process
From [14] of his reasons, the Master addressed the submissions of the defendants that the proceedings issued by the plaintiff amounted to an abuse of process. He conducted a review of the relevant Rules, and of the authorities. He summarised the basis of the defendants’ argument, which was that the issues raised by the plaintiff had previously been the subject of findings either by the Magistrate or by Blue J. The Master made the following statements:
·“The judgment [of the Magistrate] involves findings of the lawfulness of the police conduct.”[22]
·“However, the Magistrate’s rulings make it clear that the conduct of the police was not unlawful conduct in view of the finding (paragraph 18 of the Magistrate’s reasons) that the officer did believe or reasonably suspect that the defendant had committed an offence of assault on the basis of the officer’s observations.”[23]
·“The finding by Magistrate Smart of lawfulness of the conduct of the police officer is sufficient to answer the plaintiff’s causes of action as described as battery, trespass to the person, false arrest, false imprisonment and malicious prosecution.”[24]
[22] At [20].
[23] At [24].
[24] At [26].
I am of the view that in characterising the Magistrate’s findings as findings of lawfulness of the conduct of the first defendant, the Master erred. As set out above, the two findings made by the Magistrate, that the conduct complained of occurred but did not amount to disorderly behaviour, and that the first defendant believed or reasonably suspected that the plaintiff had committed an offence, say nothing about the conduct of the first defendant. The first finding relates only to the occurrence of the conduct, and the second only to the belief or suspicion held by the first defendant. Those findings on their own do not justify the subsequent conduct of the police.
From [27] onwards, the Master discusses section 75 of the Summary Offences Act (SA), which provides a police officer with the power to arrest without a warrant, and reaches the conclusion that, on the basis of that section, and of the finding of the Magistrate as to the first defendant’s belief or suspicion, the arrest of the plaintiff was lawful. At [34], the Master said:
[34] The finding of the Magistrate supports the submission for the defendants that the lawfulness of the police conduct has been the subject of a determination by the Court. The principles of finality of litigation and abuse of process do not permit the plaintiff to seek to re-litigate a matter that has already been the subject of a Court determination. In my view, the decision in Cameron v James supports the case for dismissal of the claims on the grounds sought by the defendants. Similar views are expressed in the more recent Victorian Court of Appeal case, Carter v Walker. [Citations omitted.]
In reaching the conclusion that he reached, I am of the view that the Master erred. This is on the following bases:
·The lawfulness of the police conduct was not the subject of a determination in the Magistrates Court. The subject of that determination was the lawfulness of the conduct of the plaintiff. The Magistrate made no findings as to the lawfulness of the conduct of the first defendant. The only finding made in relation to the first defendant was that he held a particular belief.
·The finding that the decision in Cameron v James[25] supports the dismissal of the plaintiff’s claim is also erroneous. Cameron v James involved a matter where, in the Court of Petty Sessions, various charges had been found proved against the plaintiff, but the charges were dismissed with no conviction recorded, and the plaintiff subsequently brought an action for false imprisonment and malicious prosecution. The Court held that the plaintiff was estopped from bringing the action, on the basis of the finding in the Court of Petty Sessions, that the charges had been proved. The situation in the present case is markedly different. The charges were not proved. The plaintiff was acquitted of all charges in the Magistrates Court. Thus the principles set out in Cameron v James, and endorsed in Carter v Walker[26] do not apply.
·The mere fact that the allegations in the statement of claim support the contention that an arrest may have been lawful, does not make it so. The legality of the arrest depends on more than the fact that the sequence of events as described by the plaintiff may give rise to an offence. This will be dealt with in more detail later.
[25] [1945] VLR 113.
[26] [2010] VSCA 340.
As a consequence of this error, the findings of the Master in [34], [35] and [36] of his reasons cannot stand. As to the findings, in [36], I also do not accept that any finding as to the legality of the arrest (if there was one) would necessarily extend protection to the police for actions beyond the arrest itself. Anything that occurred at the Adelaide Watch House would need to be examined in detail, to determine whether those acts were also covered by the protection thus given, or whether they amount to a fresh episode for which protection is not necessarily afforded.
At [40] of his reasons, the Master determines that the causes of action relating to the conduct of the police and the conduct of the prosecution must fail because of determinations in the earlier proceedings before the Magistrate and Blue J. Three causes of action fall within this umbrella; they are malicious prosecution, equitable fraud (failure to disclose relevant evidence to the Magistrates Court and the Supreme Court) and abuse of process. At [42], he said the following:
[42] … The decisions of Blue J were to the effect that the lack of particulars and the loss of evidence were not reasons in themselves for the charges to be dismissed. To that extent, the decisions of Blue J have determined the question of the propriety of the police conduct in the litigation before the Supreme Court (and to an extent the Magistrates Court before Magistrate Ackland). The issues raised by the statement of claim have therefore been determined. The defendants seek an order that the action be dismissed insofar as it seeks to re‑litigate those same questions.
It is correct to say that the first and second Blue decisions dealt with the provision of further particulars, being particulars in relation to the offence itself, and the loss of the CCTV footage. However, the disclosure referred to by the plaintiff in paragraphs 331 to 372 is not solely in relation to these matters, but also in relation to the criminal history of one of the witnesses called by the prosecution. This is not a matter dealt with in either of the Blue decisions, and raising it in this proceeding does not amount to an abuse of process. Indeed, the plaintiff is not seeking to impugn the decision of Blue J on the basis of the material that he had before him; rather that Blue J did not have in his possession documents which the defendants had a duty to disclose. I am of the view, therefore, that while certain issues raised may have been previously determined, being the questions relating to particulars of the offence and the loss of the CCTV footage, these broader issues of non-disclosure have not previously been dealt with, and raising them does not amount to an abuse of process.
At [44], the Master said:
[44] The three causes of action should be struck out on the basis that they seek to re-litigate issues that have been determined. For the reasons set out above, the decision of Magistrate Smart and the decisions of Blue J make relevant findings and proceed on a basis of factual matters that were clearly in issue before the Court. The plaintiff improperly seeks to reagitate those issues. On the findings of Magistrate Smart and the factual basis for the decision of Blue J, the causes of action referred to above are an abuse of process. Each of the causes of action alleged involve the use of the Court’s procedures in an oppressive way because the matters alleged derive from factual matters already determined against the plaintiff. …
These findings cannot stand. While some of the questions raised by the plaintiff have previously been determined, not all of them have been, and they cannot be disposed of in this way. I accept that any attempt to litigate further the propriety of the defendants’ non-disclosure in relation to the CCTV footage and the particulars of the offence would amount to an abuse of process; this is not the case for the other matters raised by the plaintiff under this umbrella.
Conclusion in relation to abuse of process
·The Master erred in finding that the causes of action in relation to malicious prosecution, equitable fraud and abuse of process are an abuse of process on the basis that they had previously been determined in another Court.
Negligence
From [45], the Master deals with the various allegations of negligence made by the plaintiff, noting that they relate to failure to train and supervise, use of handcuffs, and conflict of interest.
The Master concludes the allegation of negligence in relation to the use of handcuffs is an abuse of process on the basis of the finding of lawful conduct made by the Magistrate. As I discussed above, I am of the view that the Master is in error in reaching this conclusion. No findings were made by the Magistrate as to the conduct of the first defendant.
In addition, the Master finds that, on the basis of the principles set out in Tame, it would be contrary to public policy to find that the police owed a duty of care to the plaintiff in the circumstances set out in the statement of claim. I note that the plaintiff did not address this finding in his oral submissions. It is, however, addressed at length in the plaintiff’s written submissions. In essence, the plaintiff submits that:
·Tame should be distinguished as it does not apply to situations where a failure to train or supervise has been alleged.
·Tame should be distinguished on the basis that it involved psychiatric injury suffered by the plaintiff “unassociated with any other form of injury to person or property resulting from the allegedly tortious conduct”[27]. In the present case, the psychological injury to the plaintiff was associated with physical injury suffered by the plaintiff.
·At paragraph 18 of the written submissions, the plaintiff outlines other reasons why Tame should be distinguished. These are largely on the basis of a range of intentional conduct on the part of the defendants. This is expanded upon in paragraphs 18 and 19 of the submissions, where the acts of the defendants are described as intentional or reckless. In paragraph 20 the conduct impugned is described as “a deliberate failure to perform a duty out of malicious intent or self-serving motivation”.
[27] Paragraph 17 of plaintiff’s written submissions filed on 30 January 2017.
The defendants submit that the Master appropriately applied the decision in Tame to determine that no duty of care was owed by the defendants to the plaintiff.
I am of the view that the Master did not err in his application of Tame, in regard to the allegations of negligence in relation to the decision to arrest and to investigating, reporting and prosecuting the offences. In relation to the existence of a duty of care, Gaudron J in Tame said:
… It would be incongruous and, perhaps, give rise to incompatible duties if a person charged with the investigation of a possible offence were to owe a duty of care to the person whose conduct is the subject of that investigation.[28] [Citation omitted.]
[28] At [57].
Gummow and Kirby JJ said the following:
It is unlikely that an investigating police officer owes a duty of care to a person whose conduct is under investigation. Such a duty would appear to be inconsistent with the police officer’s duty, ultimately based in the statutory framework and anterior common law by which the relevant police service is established and maintained, fully to investigate the conduct in question. …[29] [Citations omitted.]
[29] At [231].
Hayne J said:
Police officers investigating possible contravention of the law do not owe a common law duty to take reasonable care to prevent psychiatric injury to those whose conduct they are investigating. Their duties lie elsewhere and to find a duty of care to those whom they investigate would conflict with those other duties.[30] [Citation omitted.]
[30] At [298].
In addition, the Court found against the plaintiff on the question of reasonable foreseeability.
The reasoning in Tame was followed by the Full Court of this Court in Halech v South Australia[31]. In that case, Duggan J said:
In determining whether the police officers were under a duty of care to the appellant in the present case when investigating the scene of the accident, it is necessary to consider the issues identified by Gleeson CJ in Tame: the nature of the activity in which the officers were involved and their relationship to the appellant.[32]
[31] (Supra).
[32] At [36].
Having considered the two factors set out above, the Court determined that no duty of care was owed in the matter before them. Duggan J concluded:
Furthermore, it is my view that the nature of the activity in which the police were involved is inconsistent with the imposition of a duty of care of this kind. As I have said, the allegedly negligent acts of the police officers at the scene of the accident consisted of the expression of opinion based on available information. In my view, it would be contrary to the interests of the community if the recording in official reports of opinions formed in the course of police investigations was to be inhibited by the possibility of proceedings such as those which have been instituted in the present case. The investigation of road accidents is an important and necessary function which serves a variety of purposes, all of which are in the interests of the community. It would be inappropriate to impose a duty of care which could inhibit this investigational role.[33]
[33] At [43].
In discussing the question, Besanko J said:
If the duties which the police officers owed to the public or to others were inconsistent or incompatible with a duty of care owed to the plaintiff, then no duty of care would be owed to the plaintiff either in respect of those damages characterised as economic loss or those damages characterised as nervous shock.
This restriction on the imposition of a duty of care was considered by the High Court in Sullivan v Moody (2001) 207 CLR 562; 183 ALR 404; [2001] HCA 59. The case raised a question as to whether doctors examining young children for signs of sexual abuse owed a duty of care, in carrying out the examination, to the possible abuser of the child. The doctor was required to report a suspicion on reasonable grounds and there was a section in the relevant legislation which provided that the interests of the child was the paramount consideration. The court said the mere fact that a defendant owes a duty of care to a third party, or is subject to statutory obligations which constrain the manner in which powers or discretions may be exercised, does not of itself rule out the possibility that a duty is owed to the plaintiff. However, it ordinarily will if it would give rise to inconsistent obligations, or would impose upon defendants conflicting claims or obligations. The court said (at [60]):
[60] … Similarly, when public authorities, or their officers, are charged with the responsibility of conducting investigations, or exercising powers, in the public interest, or in the interests of a specified class of persons, the law would not ordinarily subject them to a duty to have regard to the interests of another class of persons where that would impose upon them conflicting claims or obligations. [34]
[34] At [103]–[104].

It is also worth noting the decision of the Court of Appeal in New South Wales, in the matter of Cran v New South Wales[35], a matter which involved an action for negligence after an accused spent longer in prison than he should have because of delays in processing evidence. The Court found that the damage was caused by the respondents and that it was foreseeable in the case of persons such as the appellant. Nonetheless, when discussing the duties of police and prosecutors, Santow J said:
Regrettably for the appellant in the unfortunate circumstances that were inflicted upon him, I consider that on present authority, the greater public interest accorded unimpeded investigation by Police and, so far as relevant, the DPP in carrying out its prosecutorial function, precludes any duty of care to the appellant. The current state of the law, and the policy which underlies it, gives paramount weight to those considerations even overriding the factors of vulnerability and entire dependency. This is so though the decision is itself ministerial. As Ipp JA explains, there is no bright line between the functions of disclosure and investigation, or between administrative and investigative tasks. Their efficient performance may be put at risk by the very prospect of civil action designed to provide sanctions against inefficiency; that, any rate, is the policy consideration reinforcing the immunity.[36]
[35] [2004] NSWCA 92.
[36] At [63].
On the basis of these authorities, I am of the view that no duty of care to the plaintiff can be established, relating to decision to arrest, and subsequent investigation and reporting of the incident. It is clear that any duty which might be owed to the plaintiff would conflict with the defendants’ broader duties to investigate and report on these types of matters. While both Tame and Harlech are cases dealing with psychiatric injury, I do not consider that the application of the principles set out therein are confined only to such cases.
The allegations made by the plaintiff in paragraphs 231 to 245 relate to the imposition of a duty of care on the defendants, and to the reasonable foreseeability of harm to the plaintiff. They relate to events surrounding the arrest of the plaintiff and the decision to pursue particular charges against him and they also made allegations that the second defendant had a duty to train and supervise the first defendant appropriately. The allegations in relation to training and supervision are dealt with in paragraphs 231, 232, 242 and 245. At paragraph 238, the plaintiff introduces a notion of “unreasonableness”; it is not clear to me if this is in contrast to the allegations of negligence made against the defendants. As to the duties alleged in paragraphs 243 and 244, I am of the view that they come within the principle enunciated in Tame and Halech. The duties pleaded have a real risk of imposing a conflict of duty, where one of the primary duties of a police officer is to conduct investigations of breaches of the law. As to paragraph 245, amongst the allegations of breach of duty pleaded, I note that the plaintiff pleads various breaches in relation to the way the trial was conducted. In this regard, I am of the view that no duty exists. A prosecutor cannot owe any duty of care to an accused; any such duty would be in direct conflict with the duty that the prosecutor owes to the prosecuting authority.
As to the allegations in relation to training and supervision, it is the plaintiff’s position that this is not covered by the principles set out in Tame. I am of the view that the plaintiff may be correct in this regard. Tame relates to a situation of direct contact between a police officer and a possible accused, in relation to investigating and reporting in relation to an offence.
Training and supervision are antecedent events. In my view, it would be inappropriate to extend the reach of Tame on a summary judgment argument; this is a matter that should be considered by a Court fully appraised of all the circumstances.
I am of the view that there can be no cause of action in negligence against the defendants in relation to charging the plaintiff and arresting him, however, one may be established in relation to training and supervision.
From paragraph 246 to 266 of the statement of claim, the plaintiff makes allegations of negligence against the defendants in relation to the collection of the CCTV footage. He also makes allegations that the failure to obtain the footage was malicious and deliberate. He says that it was negligent of the defendants to proceed with the charges against the plaintiff with the footage. These allegations cannot be sustained, as this is a matter that has already been litigated before Blue J. In the second Blue decision, Blue J found that the prosecution did not have a responsibility to obtain all available relevant evidence of its own volition, rather than waiting for a request from the defendants. In my view, this finding precludes the plaintiff making the allegations that it has made.
In paragraph 268, the plaintiff alleges that the first defendant was negligent in the way that he used handcuffs to arrest the plaintiff. The crux of the plaintiff’s pleading appears to be that the first defendant was not appropriately trained in the use of the handcuffs so as to prevent injury. In Ratcliffe v State of South Australia[37] Judge Boylan in the District Court found that arresting officers may owe a duty of care in relation to the causing of physical injury. Whether any such duty is breached will depend on the scope of the duty and the circumstances of the case[38].
[37] [2012] SADC 93.
[38] At [24].
I am of the view that the allegations of negligence in relation to the use of handcuffs are in a somewhat different category to the allegations relating to the investigation and reporting of the offence. The allegations here relate to the infliction of harm in the course of an arrest. In my view, the imposition of such a duty does not conflict with any other duty attributable to the defendants; its extent, and whether it has been breached or not is a matter to be decided at trial.
From paragraph 269, the plaintiff pleads his third cause of action in negligence; he describes this as a failure to remove a conflict of interest.
In my view, these allegations cannot be sustained, on the basis of the principles set out in Tame. Tame establishes that a police officer owes no duty of care to a person whom he is investigating. Thus, the allegations in relation to a conflict of interest, as alleged in paragraphs 269 to 291 cannot be sustained.
Conclusion in relation to cause of action in negligence
·The Master erred in finding that the allegation of negligence in relation to the use of handcuffs is an abuse of process on the basis of the finding of lawful conduct made by the Magistrate;
·The Master further erred in finding that the allegations of negligence in relation to the use of handcuffs were precluded on the basis of the principles enunciated in Tame.
·The Master erred in finding that the allegations of negligence in relation to training and supervision were precluded by Tame.
·The Master did not err in finding that there exists no duty of care to the plaintiff in relation to the decision to arrest, and subsequent investigation and reporting of the incident.
·The Master did not err in finding that there can be no cause of action in negligence against the defendants in relation to charging the plaintiff and arresting him.
·I further find that any allegations of negligence in relation to the CCTV footage cannot be sustained, on the basis that this question has already been adjudicated by Blue J, who found that the defendants had no responsibility to obtain all available relevant evidence of its own volition.
Defamation
From [54], the Master deals with the plaintiff’s allegations of defamation. The Master concluded that the allegations could not stand on the bases that:
·They were statute barred;
·The alleged publications occurred on an occasion of absolute privilege;
·The pleading involves allegations that are inconsistent with the reasons for decision of the Magistrate and the first Blue decision and the second Blue decision.
·He concludes that the allegations are an abuse of process.
The plaintiff made no oral submissions in relation to these findings, however, in written submissions submitted the following:
·The Master should not have rejected the plaintiff’s request to make further submissions as to an extension of time, as the plaintiff had only recently discovered that such a request was necessary and possible;
·The Master erred in finding that a defamation action cannot be sustained against police officers, and he should not have presumed that the defence of absolute privilege would be pleaded.
·The Master also erred in finding that there could be no argument that the reason for the prosecution was to defame the plaintiff.
The plaintiff alleges defamation in relation to two separate events, “generation and distribution of police reports”[39], and “procuring decision by equitable fraud containing extra defamatory imputations and causing wider publication of defamatory material”[40].
[39] From paragraph 377 of the statement of claim.
[40] From paragraph 396 of the statement of claim.
Paragraph 377 contains a further recitation of the events leading to the plaintiff’s arrest and subsequent investigation of the offence. It contains conclusions and assumptions as to the defendant’s knowledge, motivation and intentions. Much of this material is objectionable on a number of grounds, not least relevance. It is put forward to support an allegation that the first defendant, in bringing the charges against the plaintiff was motivated by malice. He then pleads that the charges contained various defamatory imputations against the plaintiff. In addition, he pleads that the first defendant made false statements at the Adelaide Watch House, which statements would significantly diminish the plaintiff’s reputation[41].
[41] At paragraphs 393–394 of the statement of claim.
While Tame is concerned with the existence of a duty of care, it is worth noting the following statement of McHugh J:
Police officers are frequently obliged to record and use statements from witnesses and informants, statements that frequently damage the reputation of others. It seems preposterous to suggest that an officer has a duty of care in respect of such statements. Gathering and recording intelligence concerning the activities, potential activities and character of members of the criminal class is also central to the efficient functioning of a modern police force. Recording hearsay, opinions, gossip, suspicions and speculations as well as incontestable factual material is a vital aspect of police intelligence gathering. To impose a duty to take reasonable care to see that such information, recorded by police officers, is correct would impose on them either an intolerable burden or a meaningless ritual. It would often — perhaps usually — defeat the whole purpose of intelligence recording if the officer were required to check the accuracy of the material recorded. Often enough, checking the accuracy of the material would require contacting the very person who was the subject of an adverse recording.
It is unnecessary to decide in this case whether the administrative obligations of Constable Morgan and Acting Sergeant Beardsley negated the existence of a duty of care. My strong inclination is that police officers recording material relating to the administration of criminal justice have no duty to be careful to those affected by the material recorded. They should not have the burden of determining whether they have a duty of care in respect of every recording they make in the course of their duties. A blanket rule of no duty of care seems more in accord with the efficient administration of criminal justice than a case by case examination of each recording. If material is recorded honestly but carelessly, no action for defamation will lie, and I see no reason why the law of negligence should alter that balance.[42]
[42] At [125]–[126].
It would be counter-intuitive to find that a police officer, while not having a duty of care to a person who is the subject of a police investigation, nonetheless may be liable in defamation for recording and disseminating information, in relation to which no duty of care is owed.
I note that it is the plaintiff’s case that the first defendant was actuated by malice. It is in this regard that I consider that the Master was correct in finding that these pleadings are inconsistent with the decision in the Magistrates’ Court. The Magistrate found that the first defendant believed or reasonably suspected that the defendant had committed an offence of assault. Thus, the plaintiff is precluded from alleging malice in relation to the statements made by the first defendant at and around the time of his arrest.
As to the defence of absolute privilege, I am in agreement with the Master that this is a complete defence in relation to any material published in the course of the Magistrates’ Court and Supreme Court proceedings. For the plaintiff to suggest that this defence may not be pleaded is fanciful.
Given my findings above, I do not need to consider the submissions of the plaintiff in relation to an extension of time.
Conclusion in relation to defamation
·The Master did not err in finding that the alleged publications occurred on an occasion of absolute privilege;
·The Master did not err in finding that the pleading involves allegations that are inconsistent with the reasons for decision of the Magistrate and the first Blue decision and the second Blue decision.
·The Master was correct in concluding that the allegations are an abuse of process.
Proceedings are frivolous and vexatious
While this is the next topic dealt with by the Master, I will deal with the question of strike out on this ground later in these reasons.
Summary judgment – intentional torts
Having considered the various causes of action set out above, the Master then proceeded to consider whether summary judgment should be granted to the defendants. The Master cited well-known authorities and referred to their oft-relied on passages. He then considered each cause of action in turn to determine whether summary judgment should be granted.
When considering the intentional torts pleaded by the plaintiff, he said the following:
The allegations of fact in the pleading relating to the conduct of the police officer at the time of the disturbance on King William Street on 28 May 2010, do not support any cause of action and there is no reasonable basis for the claim. The conduct of the police was lawful and justified in accordance with the observations the police officer had made in order to support a belief or reasonable cause to suspect within the meaning of sections 74A and 75 of the Summary Offences Act. The police officer had reasonable cause to suspect that the plaintiff had committed or was committing or was about to commit an offence within the meaning of that section. These conclusions follow from allegations in the statement of claim and from the findings of Magistrate Smart.
Once the lawfulness of the police conduct at the time of questioning and of arrest is established (as it has been by the findings of Magistrate Smart), and admitted in the statement of claim, each of the causes of action for the asserted tort of false arrest must fail. The asserted causes of action in tort of trespass to the person must fail. Whether the asserted tort is assault, battery or false imprisonment, it is bound to fail in view of the finding of lawful conduct by the police officer. If it is the case, strictly, that lawfulness of conduct is a defence and the onus of proof is on the defendant, summary judgment is appropriate on the facts of this case.[43]
[43] At [92]–[93].
In relation to misfeasance in public office (dealt with by the Master from [98]), the Master found that such allegation would require reconsideration of issues already determined against the plaintiff, and in addition would be contrary to public policy as set out in Tame. He further found that they would amount to a collateral attack on the conduct of the prosecution, thus amounting to an attack on the advocate’s immunity from suit as set out most recently by the High Court of Australia in Attwells & Anor v Jackson Lalic Lawyers Pty Ltd[44] (Attwells).In addition, he found that the elements of the tort, and in particular malice, were not established.
[44] [2016] HCA 16.
It is the plaintiff’s contention that the Master erred in reaching this conclusion on the basis that:
·In relation to unlawful arrest, the Magistrate made no findings in relation to the legality of the police conduct, thus there could be no abuse of process in relation to prosecuting this ground;
·More than a mere suspicion on the part of the police is required for an arrest to be lawful, and the common law principles in Christie & Anor v Leachinsky[45] must be applied;
·Public policy requires the recognition of a wider principle that police officers should be discouraged from arresting a person to enable them to commit a pre-meditated tort in custody; in this regard, it is the plaintiff’s position that the arrest was performed to allow the first defendant to commit a pre-meditated intentional tort, namely battery;
·In relation to battery, false imprisonment, and misfeasance in public office, the Master’s error in relation to false arrest led to his conclusion that these causes of action could not be sustained; thus, the initial error led to this further error;
·The Master determined that the unlawfulness of the arrest was an element of the tort of battery. Once the arrest has been determined to be lawful, the tort of battery must fall away. This is a clear error; a battery may occur despite a lawful arrest having taken place;
·The Master mistook the facts pleaded in relation to battery, in that his decision was premised on the battery having occurred during the course of arrest; in fact, the plaintiff pleads that the battery occurred subsequent to the arrest and while in custody;
·The Master found that the tort of battery does not apply to police, contrary to authority.
[45] [1947] AC 573.
It is the position of the defendants that the decision of the Master in relation to false arrest and battery must be upheld, on the basis that the Magistrate found in fact and in law that there was a reasonable basis for arresting the plaintiff. Thus, the plaintiff is seeking to re-litigate a core finding of the Magistrate or collaterally attack them.
In light of my previous conclusions, I am of the view that the Master erred in reaching the conclusion that he did in relation to the torts of battery, unlawful arrest and false imprisonment. On the basis of my finding that the Magistrate made no findings as to the legality of the conduct of the police, any decision on this basis cannot stand.
In addition, I am of the view that the Master erred in the following respects.
There is no suggestion in the authorities to which I have been referred that the principles in Christie do not apply in South Australia. Nor did the defendants submit that these principles do not apply. Thus, it is at least arguable at trial that a requirement of a valid arrest is that the arrested person must be advised on what charge or on suspicion of what crime he is being arrested. It is useful to set out the relevant passage of Christie here:
The above citations, and others which are referred to by my noble and learned friend, Lord du Parcq, seem to me to establish the following propositions. (1) If a policeman arrests without warrant upon reasonable suspicion of felony, or of other crime of a sort which does not require a warrant, he must in ordinary circumstances inform the person arrested of the true ground of arrest. He is not entitled to keep the reason to himself or to give a reason which is not the true reason. In other words a citizen is entitled to know on what charge or on suspicion of what crime he is seized. (2) If the citizen is not so informed but is nevertheless seized, the policeman, apart from certain exceptions, is liable for false imprisonment. (3) The requirement that the person arrested should be informed of the reason why he is seized naturally does not exist if the circumstances are such that he must know the general nature of the alleged offence for which he is detained. (4) The requirement that he should be so informed does not mean that technical or precise language need be used. The matter is a matter of substance, and turns on the elementary proposition that in this country a person is, prima facie, entitled to his freedom and is only required to submit to restraints on his freedom if he knows in substance the reason why it is claimed that this restraint should be imposed. (5) The person arrested cannot complain that he has not been supplied with the above information as and when he should be, if he himself produces the situation which makes it practically impossible to inform him, eg, by immediate counter-attack or by running away. …

It is the plaintiff’s pleaded case that he asked the first defendant on numerous occasions for what offence he was being arrested, to which he received no response. On the plaintiff’s case, there is a prima facie claim against the defendants.
As to the torts of battery, false imprisonment, and misfeasance in public office, the decision in Cunningham v Traynor[46] is instructive. In this case, the plaintiffs were detained by police, tasered, arrested and taken to a police station, where they were charged with obstructing a police officer in the performance of his duties. The charges against each were dismissed at trial. They subsequently made claims of battery, misfeasance in public office, malicious prosecution and false imprisonment against the police officers involved and the State of Western Australia. All defendants were found liable.
[46] [2016] WADC 168.
The Court examined the elements of each tort, and the following comments are instructive in the present case. In relation to battery, Davis DCJ said[47]:
The onus is on the plaintiff to prove that there has been some offensive physical contact by the defendant, but the tort does not require proof that the defendant intended the plaintiff any harm, or that the plaintiff suffered harm in fact: Carter v Walker [215].
Where a battery is proved in the context of the actions of police, the onus is on the police to establish that they acted with lawful justification (ie their actions were authorised or excused by law): Bulsey v Queensland [2015] QCA 187 [4] and [46].
If reasonable force is used in the course of effecting a lawful arrest, that can provide a legal justification for what would otherwise be a battery. However, an unlawful arrest is not a tort separate to battery: New South Wales v Williamson [2011] NSWCA 183 [24] (Campbell JA).
[47] At [110]-[112].
In relation to false imprisonment, he said[48]:
The tort of false imprisonment consists in the act of arresting or imprisoning any person without lawful justification, or otherwise preventing him, without lawful justification, from exercising his right of leaving the place in which he is: McDonald v Coles Myer Ltd (1995) Aust Torts Report 81-361, 62,690.
[48] At [113].
In relation to misfeasance in public office, he said[49]:
[49] At [122]-[126].
The tort of misfeasance in public office concerns an exercise of authority by a public officer other than in an honest attempt to perform the functions of his or her office: Northern Territory v Mengel [1995] HCA 65; (1995) 185 CLR 307, 357 (Brennan J) (Mengel).
The tort may apply to police officers in the exercise of their powers: Farrington v Thomson [1959] VR 286.
The elements of the tort, as set out by Deane J in Mengel (370) are that:
(a)     there must be an invalid or unauthorised act;
(b)     the act must be done maliciously;
(c)     the act must be done by a public officer;
(d)     the act must be done in the purported discharge of the public officer’s public duties; and
(e)     the act must cause loss or harm to the plaintiff.
The onus of proof of all of these elements is on the plaintiff.
To prove malice the plaintiff must demonstrate the public officer’s intention to cause harm, or that he was recklessly indifferent to harm, or that he knowingly acted in excess of his power: Mengel (347–348) (Mason CJ, Dawson, Toohey, Gaudron, McHugh JJ).
In relation to malicious prosecution, he said[50]:
Following two High Court authorities, A v New South Wales (2007) 230 CLR 500 [1] and Beckett v New South Wales [2013] HCA 17; (2013) 248 CLR 432 [4], to succeed in claim of malicious prosecution a plaintiff must establish that:
(a)     proceedings of the kind to which the tort applies (generally, as in this case, criminal proceedings) were initiated or maintained against the plaintiff by the defendant;
(b)     the proceedings terminated in favour of the plaintiff;
(c)     the defendant in initiating or maintaining the proceedings acted maliciously; and
(d)     the defendant acted without reasonable and probable cause.
[50] At [131].
Following detailed analysis of each of these torts in the context of the facts of the matter, Davis DCJ found that the defendants were liable in respect of each cause of action.
The effect of this decision on the present matter is to affirm the following principles:
·Battery can be committed by police, regardless of whether an arrest is lawful or unlawful.
·It may be possible for the plaintiff to establish false imprisonment, if he is able to establish that the arrest was unlawful.
·While the Magistrate found that the first defendant held a reasonable suspicion or belief that the plaintiff had committed an offence, this may not provide a defence in relation to malicious prosecution, which is dependent on the state of mind of the defendant at a later time, ie at the time of initiating or maintaining the prosecution. I note, too, that at [108], the Master relied on the findings of the Magistrate and the principle enunciated in Cameron v James in granting summary judgment. As set out in [46], these findings are erroneous and cannot be used to support an application for summary judgment.
·The same consideration will apply in relation to the tort of misfeasance in public office; the reasonably held suspicion or belief at the time of arrest may not provide a sufficient defence. In addition, I do not consider that Tame necessarily extends so far as to provide protection in respect of such a claim. Tame deals with the existence of a duty of care and foreseeability. I am of the view that, while it may be so extended following full consideration by the Court, it is not appropriate to extend the reach of Tame and grant summary judgment without full consideration of the issues. While there may be no duty of care in relation to a number of the issues raised by the plaintiff in his pleading of misfeasance in public office, this cause of action requires different considerations to a negligence claim and should not be rejected on the same basis as that on which it may be found that there was no duty of care.
·As to the Master’s view that advocate’s immunity would protect the prosecutor from a claim of this type, I am of the view that his reasoning extends the principle set out in Attwells and D’Orta-Ekenaike v Victoria Legal Aid & Anor[51]. These cases are clear authority for the existence of advocate’s immunity from suit. However, each of these cases granted immunity to the applicant’s own advocate, and did not consider the situation where the claim is brought against the advocate acting for the opposing party. Again, I am of the view that, while this may be found to be the case following a full hearing, it is not appropriate to grant summary judgment on the basis of an untested extension of the principles enunciated by the High Court.
[51] (2005) 223 CLR 1.
On this basis, I consider that there is a reasonable basis for the claims against the defendants. I am of the view that the plaintiff is entitled to a hearing on the merits in relation to these causes of action. Summary judgment should not have been awarded in relation to these causes of action.
Conclusion in relation to summary judgment for unlawful arrest, battery, false imprisonment, malicious prosecution and misfeasance in public office
·The Master erred in awarding summary judgment in relation to these causes of action.
Summary judgment in relation to claim in negligence
In light of the findings I made at paragraph [73] hereof, I am of the view that the Master erred in granting summary judgment in relation to the causes of action in negligence relating to:
·The use of handcuffs;
·The training and supervision of the first defendant.
The Master did not err in granting summary judgment in relation to the causes of action arising from:
·the arrest and charging of the plaintiff;
·reporting of the incident;
·investigation of the offence;
·the loss of the CCTV footage.
Summary judgment in relation to equitable fraud and abuse of process
The Master granted summary judgment in relation to this cause of action on the basis that these issues were previously dealt with in the first and second Blue decisions, and on the basis of advocates’ immunity. As set out above, I am of the view that the principles set out in Attwells and D’Orta-Ekenaike should not be applied to the facts of this case on an application for summary judgment. As such an application would extend them beyond their scope in these cases, it is a matter for full consideration by a Court.
As to whether the question was decided by the Supreme Court in the first and second Blue decisions, I refer to my reasoning in [51] hereof. While the issue in relation to the CCTV has been previously been determined, the allegations made by the plaintiff go beyond this. Any allegation in relation to the withholding of other information has not previously been adjudicated by a court, and pleading those matters in this action would not amount to an abuse of process.
Summary judgment should not have been granted in relation to these allegations.
Summary judgment in relation to defamation
Given my conclusions at [82] hereof, I am of the view that the Master did not err in granting summary judgment in relation to the claim in defamation.
Conclusion in relation to summary judgment
The appeal should be allowed in the following respects and summary judgment should be set aside:
·unlawful arrest;
·battery;
·false imprisonment;
·malicious prosecution;
·misfeasance in public office;
·equitable fraud;
·abuse of process;
·negligence in relation to the use of handcuffs; and
·negligence in relation to the training and supervision of the first defendant.
The appeal should be dismissed in respect of the following causes of action, with summary judgment upheld:
·defamation;
·negligence in relation to the arrest and charging of the plaintiff;
·negligence in relation to the reporting of the incident;
·negligence in relation to the investigation of the offence; and
·negligence in relation to the loss of the CCTV footage.
Proceedings are frivolous and vexatious and strike out
After an examination of the Rules and authorities in relation to pleadings, the Master found that the statement of claim was in breach of the Rules and should be struck out. The Master provided a detailed analysis of the pleading by way of a schedule.
I note that in argument the plaintiff conceded that there were serious deficiencies in the document.
I am of the view that the statement of claim should be struck out. It is prolix, repetitive, confusing and confused. It contains submissions, assumptions, legal argument and conclusions. Much of the detail included is irrelevant. In light of my decision as to summary judgment, an amended statement of claim needs to be filed. I have no hesitation in striking out the entire document and requiring the plaintiff to start afresh.