Mickelberg v Western Australia

Case [2007] WASC 140


JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION:   MICKELBERG & ORS -v- THE STATE OF WESTERN AUSTRALIA & ORS [2007] WASC 140

CORAM:   NEWNES J

HEARD:   1 & 2 MARCH 2007

DELIVERED          :   29 JUNE 2007

FILE NO/S:   CIV 1628 of 2003

BETWEEN:   RAYMOND JOHN MICKELBERG

First Plaintiff

PETER MICKELBERG
Second Plaintiff

RAYMOND JOHN MICKELBERG & PETER MICKELBERG AS EXECUTORS OF THE ESTATE OF BRIAN MICKELBERG (DEC)
Third Plaintiff

AND

THE STATE OF WESTERN AUSTRALIA
First Defendant

ELIZABETH MARY HANCOCK AS EXECUTRIX OF THE ESTATE OF DONALD LESLIE HANCOCK (DEC)
Second Defendant

MARK LEWANDOWSKI AS REPRESENTATIVE OF THE ESTATE OF ANTHONY LEWANDOWSKI (DEC)
Third Defendant

WILLIAM ROUND

Fourth Defendant

JOHN GILLESPIE
Fifth Defendant

HENRY HOOFT
Sixth Defendant

DENIS WILLIAM HENLEY
Seventh Defendant

ROBERT CHARLES KUCERA
Eighth Defendant

Catchwords:

Practice and procedure - Application to strike out statement of claim - Claim of misfeasance in public office by police officers - Whether claim for misfeasance in public office available for acts occurring after defendant ceased to hold office - Whether State vicariously liable for unlawful conduct of police officer - Application of Enever v The King - Whether witness immunity applies to alleged acts of police officers in connection with investigation and prosecution of offences - Limitation of action - Fraudulent concealment of evidence of unlawful acts - Whether defendants estopped from relying on limitation period

Legislation:

Crown Suits Act 1947 (WA), s 5, s 6
Police Act 1892 (WA), s 137, s 138

Result:

Claim against first defendant struck out
Claim against second to eighth defendants struck out in part

Category:    B

Representation:

Counsel:

First Plaintiff                :     Mr M L Bennett

Second Plaintiff            :     Mr M L Bennett

Third Plaintiff               :     Mr M L Bennett

First Defendant             :     Mr G T W Tannin SC & Ms M J Paterson

Second Defendant         :     Mr E M Corboy SC & Ms K A Vernon

Third Defendant           :     Mr A J Papamatheos

Fourth Defendant          :     Mr E M Corboy SC & Ms K A Vernon

Fifth Defendant            :     Mr E M Corboy SC & Ms K A Vernon

Sixth Defendant            :     Mr E M Corboy SC & Ms K A Vernon

Seventh Defendant        :     Mr E M Corboy SC & Ms K A Vernon

Eighth Defendant          :     Mr E M Corboy SC & Ms K A Vernon

Solicitors:

First Plaintiff                :     Lavan Legal

Second Plaintiff            :     Lavan Legal

Third Plaintiff               :     Lavan Legal

First Defendant             :     State Solicitor for Western Australia

Second Defendant         :     Carol Adams

Third Defendant           :     Maxim Litigation Consultants

Fourth Defendant          :     Carol Adams

Fifth Defendant            :     Carol Adams

Sixth Defendant            :     Carol Adams

Seventh Defendant        :     Carol Adams

Eighth Defendant          :     Carol Adams

Case(s) referred to in judgment(s):

Attorney‑General for New South Wales v Perpetual Trustee Company Ltd (1955) 92 CLR 113

Barclay Mowlem Construction Ltd v Dampier Port Authority [2006] WASC 281

Bingham v England (1996) 17 WAR 226

Cabassi v Vila (1940) 64 CLR 130

Calveley v Chief Constable of the Merseyside Police [1989]…

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Mickelberg v Western Australia [2007] WASC 140
Case
[2007] WASC 140
Decision Date

CaseChat Overview and Summary

The case of Mickelberg v Western Australia involved the plaintiffs bringing claims against various defendants, including the State of Western Australia and several police officers, for alleged misfeasance in public office. The claims related to acts occurring after the defendants had ceased to hold office, the vicarious liability of the State for the unlawful conduct of police officers, the application of Enever v The King, the immunity of witnesses in relation to acts connected to the investigation and prosecution of offences, and the limitation of actions and fraudulent concealment of evidence of unlawful acts. The case was heard in the Supreme Court of Western Australia.

The central legal issues that the court needed to decide included whether a claim for misfeasance in public office could be maintained for acts occurring after the defendant ceased to hold office, whether the State could be held vicariously liable for the unlawful conduct of police officers, the applicability of witness immunity to the alleged acts of police officers in connection with the investigation and prosecution of offences, and whether the defendants could rely on the limitation period given the alleged fraudulent concealment of evidence of unlawful acts. Additionally, the court needed to determine whether the plaintiffs' claims were too complex and should be struck out, and whether special costs should be awarded given the difficulty, complexity, and importance of the case.

In its reasoning, the court found that the claims for misfeasance in public office were not maintainable for acts occurring after the defendants ceased to hold office. The court also held that the State could not be held vicariously liable for the unlawful conduct of police officers. The immunity of witnesses did not apply to the alleged acts of police officers in connection with the investigation and prosecution of offences. However, the court found that the defendants were estopped from relying on the limitation period due to the fraudulent concealment of evidence of unlawful acts. The court further determined that the complexity and importance of the case warranted special costs, but not to the extent of a special costs order for the action generally.

The final orders of the court included that the plaintiffs were to pay the costs of the first defendant and other specified defendants, to be taxed without regard to the limits in the relevant Determination of the Legal Costs Committee. The costs were to be paid within 60 days of being taxed or agreed. Additionally, the court declined to make a special costs order in respect of the action generally.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

In Pasdonnay Pty Ltd v SDS Corporation Ltd [2005] WASCA 9 (S), Wheeler J (as her Honour then was) (with whom Miller and Jenkins JJ agreed) was considering an application under s 215(2) of the Act. Her Honour said (at [8]):"The respondent submits that, as was formerly the case under O 66 r 12, what is required at this stage is a 'preliminary and provisional' judgment as to whether the relevant conditions are satisfied, citing Collins v Westralian Sands Ltd (1993) 9 WAR 56 at 64, 68. I accept that submission. I accept also the submission that the Court, having heard the appeal, is in a position to make that judgment from its own observations. Because some time has elapsed since the hearing of the matter, however, I have reviewed the judgment, the original notice of appeal and amended notice of appeal, and the submissions, in order to refresh my memory of those matters." In my view, I am in a position to make the necessary judgment from my own knowledge of the matter as it was put before me on the substantive application. I am satisfied that this was an interlocutory application of "unusual difficulty, complexity or importance". As counsel for the defendants pointed out, the statement of claim under attack extended to some 181 pages and contained detailed allegations of fact going back to 1982. It is, I think, incontrovertible that the pleading was intricate and complex, and raised legal issues of relative novelty, in particular in relation to misfeasance in public office and limitation of actions. Very lengthy written submissions were filed on both sides and a great number of cases were referred to. While the reference to authority by the first defendant may in some instances have gone further than was strictly necessary, it would be wrong to be particularly critical of that given the nature of the issues in question. I think it is also clear that the oral argument, which occupied one and a half days, is likely to have taken considerably longer had counsel not been able to rely to a significant degree on their detailed written submissions. The defendants' applications were plainly applications of considerable importance. The first defendant was wholly successful in having the claims against it struck out and the police defendants were successful in having significant parts of the claims against them struck out. In the circumstances, I am satisfied that the amount of costs allowable under the relevant costs determination in respect of the applications is inadequate because of the unusual difficulty, complexity and importance of the matter and I would order that the costs be taxed without regard to the limits on costs fixed in that determination. I am not, however, satisfied that the grounds have been made out for a special costs order in respect of the action generally, and in particular in respect of the first defendant's request for further and better particulars of the statement of claim, and I would decline to make such an order. I would therefore propose to make the following orders:1.Subject to par 3 hereof, the plaintiffs pay the first defendant's costs of the action, including reserved costs, to be taxed.2.The plaintiffs pay the first defendant's costs (including reserved costs) of the amended application dated 6 February 2007 to strike out the statement of claim, to be taxed without regard to the limits in the relevant Determination of the Legal Costs Committee, pursuant to s 215(2)(c) of the Legal Practice Act.3.The plaintiffs pay the first defendant's costs of the action and of the application within 60 days of those costs being taxed or agreed.4.The plaintiffs pay the second, fourth, fifth, sixth and seventh defendants' costs (including reserved costs) of the application to strike out the further re‑amended substituted statement of claim, to be taxed without regard to the limits in the relevant Determination of the Legal Costs Committee, pursuant to s 215(2)(c) of the Legal Practice Act.5.The plaintiffs pay the eighth defendant's costs (including reserved costs) of the application to strike out the further re‑amended substituted statement of claim, to be taxed without regard to the limits in the relevant Determination of the Legal Costs Committee, pursuant to s 215(2)(c) of the Legal Practice Act.6.The eighth defendant's costs of the application and the second, fourth, fifth, sixth and seventh defendants' costs of the application are to be taxed as one set of costs.7.The plaintiffs pay the second, fourth, fifth, sixth, seventh and eighth defendants' costs within 60 days of those costs being taxed or agreed.