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 PlaintiffRAYMOND JOHN MICKELBERG & PETER MICKELBERG AS EXECUTORS OF THE ESTATE OF BRIAN MICKELBERG (DEC)
Third PlaintiffAND
THE STATE OF WESTERN AUSTRALIA
First DefendantELIZABETH MARY HANCOCK AS EXECUTRIX OF THE ESTATE OF DONALD LESLIE HANCOCK (DEC)
Second DefendantMARK LEWANDOWSKI AS REPRESENTATIVE OF THE ESTATE OF ANTHONY LEWANDOWSKI (DEC)
Third DefendantWILLIAM ROUND
Fourth Defendant
JOHN GILLESPIE
Fifth DefendantHENRY HOOFT
Sixth DefendantDENIS WILLIAM HENLEY
Seventh DefendantROBERT 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]…
Continue reading Mickelberg v Western Australia
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- AGLC
- Mickelberg v Western Australia [2007] WASC 140
- Case
- [2007] WASC 140
- Decision Date
CaseChat Overview and Summary
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.