Mohamed v State of Victoria
[2007] VSC 538
•5 December 2007
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
PRACTICE COURT
No. 6311 of 2006
| NOOR ABDIAZIZ MOHAMED | Plaintiff |
| v | |
| STATE OF VICTORIA | Defendant |
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JUDGE: | HARPER J | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 4 DECEMBER 2007 | |
DATE OF JUDGMENT: | 5 DECEMBER 2007 | |
CASE MAY BE CITED AS: | NOOR ABDIAZIZ MOHAMED v STATE OF VICTORIA | |
MEDIUM NEUTRAL CITATION: | [2007] VSC 538 | |
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PRACTICE AND PROCEDURE – Appeal from a Master - Application for judgment or to stay the proceeding – Whether statement of claim discloses a cause of action or is scandalous, frivolous and vexatious – Defamation – Negligence – Erroneous information concerning the plaintiff placed on police data bases – Absence of plea of bilateral publication – Necessity to plead matters of substance and not to rely on subsequent discovery – Use of non-party discovery provisions – Negligence not open where alleged loss arose from publication of defamatory matter – Sullivan v Moody (2001) 207 CLR 562 and Tame v New South Wales (2002) 211 CLR 317 applied.
COSTS – “Calderbank letter” served – Costs ordered on solicitor/client basis.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J. Selemi | Starnet Legal |
| For the Defendant | Dr M. Collins | John Cain, Victorian Government Solicitor |
HIS HONOUR:
The plaintiff, Noor Mohamed, has endured an experience no one would want. He is a person of good character. He had never been convicted of anything. Yet for a period ending on 2 May 2005 he was recorded "on data bases maintained by police jurisdictions at the Federal, State and Territory level" as having a series of convictions for offences involving violence. I interpolate to say that quotation, which appears in the footnote, is from paragraph 5 of an affidavit sworn by Veruna Werisekera, Acting Manager, Public Inquiry Service, Record Services Division, Victoria Police on 7 May 2007.
A charge of theft and one of rape was also shown on the database as being investigated. Otherwise, all the convictions were imposed by courts in Victoria. In placing the relevant details on the database, the Victoria Police had made, "an error involving two different persons with identical 'alias' names and birthdates". That is a reference to paragraph 21 of Mr Werisekera's affidavit.
In 2004 the plaintiff applied for a taxi licence in Western Australia. He was, however, informed by letter dated 20 December 2004 from the relevant authority that he had "recently been convicted of criminal offences" and therefore might not be able to satisfy the requirement that he be a suitable person to hold such a licence.
Not surprisingly, the plaintiff was very upset. On 12 May 2006 he filed a writ and Statement of Claim in this court. He claimed damages in defamation and negligence. On 13 June 2006 the defendant sought Further and Better Particulars. It also asked that the Statement of Claim, "plead a cause of action known to the law against the State of Victoria, clarify the extent to which it is alleged the incorrect statement was published, and remove the cause of action for negligence."
The proceeding came before Justice Bongiorno on 21 July 2006. His Honour ordered that it be entered into the Major Torts List and that an Amended Statement of Claim be filed and served by 11 August. The hearing was adjourned to 8 September 2006.
The Statement of Claim was not amended in the time allowed. Indeed it remained unamended when the matter returned to Justice Ashley on the adjourned dated, 8 September. His Honour then ordered by consent that the Statement of Claim be amended by 4.00pm. on 15 September failing which the proceeding be dismissed with costs.
An Amended Statement of Claim was served on the defendant on
15 September. Three weeks later, on 6 October 2006, the plaintiff received a request for Further and Better Particulars of the Amended Statement of Claim. There was no substantive response however until 30 October 2007, more than a year later. In the meantime, on 4 September 2007 the defendant issued the summons presently before me.
By that summons the defendant seeks an order that there be judgment for it pursuant to Rule 23.01, or alternatively Rule 23.02, of the Rules of the Supreme Court. In the alternative the defendant seeks an order that the proceeding be stayed. The grounds put forward by the summons are that the Statement of Claim as amended does not disclose a cause of action, is scandalous, frivolous or vexatious and/or is an abuse of process.
Rule 23.02 does not empower the court to either give judgment or stay the proceeding. It provides only that the court may, if the relevant conditions are satisfied, order that the whole or part of the pleading be struck out or amended. Accordingly, the application must be limited to Rule 23.01 unless I were to accede to the further request in the summons for, "such further or other orders as the court sees fit".
The summons came on for hearing before a Master of this court on
31 October 2007. The defendant was successful. The plaintiff now appeals to a single Judge of the court. The appeal is by way of a hearing de novo.
The Amended Statement of Claim pleads by paragraphs 1 and 2 that the plaintiff was at all material times employed as a taxi driver and that the defendant is vicariously liable for the conduct of its servants or agents pursuant to s.23(1B) of the Crown Proceedings Act 1958. Then, in paragraph 3, it is alleged that the defendant between 2003 and 17 May 2005 published in each Australian jurisdiction a National Police Certificate. The Certificate, a copy of which is annexed to the Amended Statement of Claim served on the defendant, contained information to the effect that the plaintiff had been found guilty of numerous crimes, that he was being investigated in relation to theft and rape, and that he used aliases to avoid detection. In the particulars under paragraph 3 of the Amended Statement of Claim, it is said, "The Certificate was published in each State and Territory of Australia on the National Police Records database . . . during the period and was available to any person making an application for access to the plaintiff's alleged criminal history maintained on the database. A copy of the Certificate is annexed hereto and marked with the letter A".
The Certificate, a copy of which as I have noted is annexed to the Amended Statement of Claim served on the defendant, is not annexed to the original Amended Statement of Claim on the court file. Be that as it may, the copy is not of a National Police Certificate but of one issued on 20 January 2005 by the Victoria Police to the plaintiff's then solicitors. It does not accord with the document referred to in the Amended Statement of Claim and could not have been published as alleged in that pleading.
This proposition is supported by the plaintiff's own material. By its request for Further and Better Particulars dated 6 October 2006, the defendant sought further and better particulars of paragraph 3 of the Amended Statement of Claim. The request specifically sought identification of each person to whom the certificate was allegedly published and the date of each publication.
As I have noted, the plaintiff failed until 30 October 2007 to respond to the request. When it came, the response in relation to the matters pleaded in paragraph 3 was as follows:
The certificate was published by reason of the fact that it was stored on the National Police Records database and was available to any person in making application for access to the plaintiff's alleged criminal record. Further the certificate was published to the Director General of the Department for Planning and Infrastructure and to Anne Mason, Manager, Central Customer Services, Regulatory and Regional Services of the Department for Planning and Infrastructure, Government of Western Australia, Perth. The publication took place on or about 20 December 2004. The plaintiff is unable to provide any further particulars until after the completion of discovery and interrogation. Further particulars shall be supplied after the completion of discovery and interrogation.
An allegation of publication on a National Police Database is an allegation of unilateral publication as that expression is used by the High Court in the case of Dow Jones and Co Inc v. Gutnick[1]. In that case the Chief Justice and Justices McHugh, Gummow and Hayne said:
The tort of defamation at least as understood in Australia focuses upon publications causing damage to reputation. Harm to reputation is done when a defamatory publication is comprehended by the reader, the listener or the observer. Until then, no harm is done by it. This being so, it would be wrong to treat publication as if it were a unilateral act on the part of the publisher alone. It is not. It is a bilateral act - in which the publisher makes it available and a third party has it available for his or her comprehension.
[1](2002) 210 CLR 575.
It follows that if the cause of action on which the plaintiff seeks to rely is to be pleaded properly, it must contain an allegation of bilateral publication.
Here the Amended Statement of Claim does not connect the alleged publication by the defendant to the alleged receipt of the publication by the alleged Western Australian recipients. There is accordingly no assertion of a bilateral act of publication. The certificate annexed to the Amended Statement of Claim is indeed inconsistent with such assertion. It is a Victorian Police certificate published in Victoria at a date later than that alleged for publication in Western Australia, and published to persons other than the alleged Western Australian recipients.
Paragraph 4 of the Amended Statement of Claim does not cure the defect. By that paragraph the plaintiff alleges that:
At all material times during the period the defendant by its servants or agents, published the certificate on the data base intending that the certificate would be republished to potential employers of the plaintiff in the taxi industry as a natural and probably consequence of the original publication. Full particulars of the names of the persons to whom the certificate was republished shall be supplied after the defendant has made full and proper discovery.
It is to be noted that the allegations thus pleaded in paragraph 4 of the Amended Statement of Claim are pleaded as substantive allegations. This is appropriate given that, as I have noted, the plaintiff must in order to make good the cause of action plead what can be seen to be a bilateral act of publication involving both the defendant and a third person.
In submissions on behalf of the defendant, Dr Collins pointed out that, as pleaded in paragraph 4 of the Amended Statement of Claim, the cause of action remains incomplete because the particulars to which that paragraph refers have not been supplied. But they must be supplied as part of the substantive plea if the cause of action is to be properly pleaded. I accept Dr Collins' submissions in this respect. It is not sufficient for the plaintiff simply to state that full particulars of the persons to whom the certificate was republished shall be supplied after full and proper discovery. Those matters are not properly the subject merely of particulars, but of the substantive plea and accordingly should appear when the Statement of Claim is properly drawn and should appear not by way merely of particulars. Moreover, as Dr Collins also submitted, it is fishing to refer, as the plaintiff has done in the Amended Statement of Claim, to matters which are not presently known to the plaintiff but which must form part of the substantive plea itself.
If the plaintiff is in a position where material facts are unknown and accordingly the plaintiff is not in a position to adequately plead a possible cause of action, then the appropriate course is for the plaintiff to seek discovery from a non-party pursuant to the provisions of the Rules and in particular Rule 32.07 of the Rules of the Supreme Court. That Rule provides for discovery from a non-party; and that is the appropriate Rule to which the plaintiff should have recourse if a substantive element of the cause of action is unknown to him, and if he is thereby unable to say whether he is able to make out a completed cause of action in a statement of claim.
The position then, it seems to me, is that the cause of action in defamation as presently pleaded is one which suffers from a terminal problem. A material element of the cause of action is not pleaded, and on the materials provided by the plaintiff himself cannot be pleaded at present, because the plaintiff does not have the relevant information. Until that information is obtained the plaintiff will not be in a position to assert that he has a complete cause of action in defamation and will therefore not be able to plead all the elements which make up such a cause of action. In those circumstances the cause of action in defamation should, as the defendant submits, be struck out.
I have referred to the fact that the Statement of Claim also contains or purports to contain a pleading setting out a cause of action in negligence. That part of the pleading is also the subject of attack by the defendant. By paragraph 8 of the Amended Statement of Claim the plaintiff pleads that at all material times it was reasonably foreseeable that he would suffer psychiatric injury if the defendant and/or its servants or agents published false matters of and concerning the character of the plaintiff. In paragraph 9, the Amended Statement of Claim proceeds to allege that the defendant and/or its servants or agents therefore owed a duty to the plaintiff to exercise reasonable care to avoid causing the plaintiff to suffer from any psychiatric injury. Then, in paragraph 10, it is alleged that in breach of that duty the defendant recorded and published false matters of and concerning the character of the plaintiff.
The defendant submits that in the circumstances of this case a cause of action in negligence is not open to the plaintiff and any attempt to plead such a cause of action must fail. It is well established, according to the defendant, that where a plaintiff claims to have suffered loss by reason of the publication of defamatory matter, his or her remedy lies in the law of defamation and not in the law negligence. For that proposition the defendant relies particularly on two cases.
The first of those two is Sullivan v. Moody[2]. In that case the appellants sued a number of medical practitioners and social workers in South Australia in negligence. The allegation was that the appellants had suffered psychiatric injury as a result of the making of false reports by the defendants to the effect that the plaintiffs had sexually abused children. The High Court held that the cause of action could not be maintained. In their joint judgment the Chief Justice and Justices Gaudron, McHugh, Hayne and Callinan said at paragraphs [53] to [54]:
Developments in the law of negligence over the last 30 or more years reveal the difficulty of identifying unifying principles that would allow ready solution of novel problems. Nonetheless that does not mean that novel cases are to be decided by reference only to some intuitive sense of what is 'fair' or 'unfair'. There are cases, and this is one, where to find a duty of care would so cut across other legal principles as to impair their proper application and thus lead to the conclusion that there is no duty of the kind asserted.
The present cases can be seen as focussing as much upon the communication of information by the respondents to the appellants and to third parties as upon the competence with which the examinations or other procedures were conducted. The core of the complaint by each appellant is that he was injured as a result of what he, and others, were told. At once, then, it can be seen that there is an intersection with the law of defamation which resolves the competing interests of the parties through well developed principles about privilege and the like. To apply the law of negligence in the present case would resolve the competition on an altogether different basis. It would allow recovery of damages for publishing statements to the discredit of a person where the law of defamation would not.
[2](2001) 207 CLR 562
Their Honours clearly had in mind in that passage the problem that would arise were a defendant in a defamation action to plead, for example, qualified privilege only to be met by a claim that an alternative cause of action in negligence bypassed that plea and rendered it ineffectual.
The defendant submits that the High Court reached a similar conclusion in the New South Wales case of Tame v. New South Wales[3] to that which it reached in Sullivan v. Moody. In Tame the plaintiff claimed that she suffered a psychiatric injury as a result of a false entry made concerning her blood alcohol level in a traffic accident report compiled by a policeman, Acting Sergeant Beardsley, following a road accident in which she was involved. The error was corrected, but a copy of the uncorrected report was provided to an insurer who nonetheless admitted liability. In turn Ms Tame herself nonetheless became obsessed with the error and developed a psychiatric disorder. The High Court however held that Acting Sergeant Beardsley did not owe a duty to take reasonable care to avoid that psychiatric injury. The Chief Justice said at paragraphs [26] and [28]:
The primary duty of a police officer filling out such a report is to make available to his or her superiors, honestly and frankly, the results of the observations, inquiries and tests that were made. It would be inconsistent with such a duty to require the police officer to take care to protect from emotional disturbance and possible psychiatric illness a person whose conduct was the subject of investigation and report.
...
Furthermore, as in Sullivan v. Moody, this is a case where the appellant claims to have been injured in consequence of what others were told about her. There is the same intersection with the law of defamation, and the same need to preserve legal coherence. In the events that occurred, Mrs Tame's reputation was not harmed. But suppose it had been. Then the law would have engaged in an exercise of balancing the rights and responsibilities of Mrs Tame and Acting Sergeant Beardsley by reference to considerations many of which would have been rendered irrelevant by the application of the law of negligence.
[3](2002) 211 CLR 317
The Chief Justice's conclusions were similarly reached by other members of the Court.
It follows from the passages to which I have referred from the several judgments of the High Court, that the plaintiff faces two difficulties in pleading negligence as a separate cause of action in the circumstances of this proceeding. First, by pleading both defamation and negligence, the plaintiff squarely requires the court somehow to marry the intersecting and, to an extent, inconsistent principles of the law relating to defamation on the one hand, and negligence on the other. I have already referred to one instance of the difficulty of that intersection by reference to the defence of privilege in defamation which is not available to meet a cause of action in negligence.
The second difficulty for the plaintiff is that the persons responsible for placing entries on the Police Data Base and maintaining the accuracy of those entries are under a duty to do so. That duty comes from a different source no doubt from that which applied to Acting Sergeant Beardsley and to the medical practitioners who prepared the reports the subject of the claim in Sullivan v. Moody. Nevertheless, the duty is one which members of the police force are required to undertake. It is a duty the social policy behind which is clear enough. It is in the community's interests that the relevant authorities maintain an accurate database of information relating to the commission of criminal offences and the conviction of persons for those offences. It follows that in placing entries on the data base and maintaining those entries the relevant members of the police force are not only fulfilling a duty, but are also carrying out a socially desirable function.
It is hardly necessary for me to note my acceptance of the submission of the plaintiff that in making entries on the database those responsible for taking that action ought to act with care. The accuracy of the data base is important. It is important for appropriate police operations and it is important in that the consequences of disseminating incorrect information can be serious particularly where the information relates to a person who suffers by an inaccuracy which is then disseminated. To say that, however, is not necessarily to accede to the proposition that a duty of care to a person the subject of information maintained on the data base exists in the relevant authority. Indeed it seems to me that by analogy with the cases to which I have referred, that is, Sullivan v. Moody and Tame v. New South Wales, the law is that there is no duty of care on the relevant authorities to a person about whom information is stored on a police data base. To impose such a duty of care would be to impose upon the relevant persons or authorities a duty that, if not directly inconsistent with the duty relating to the requirements of the authority or authorities in maintaining the data base, would interfere with the proper execution of that duty.
The first priority of those maintaining the data base must be to place information on it that will be relevant to the operations of police forces in the various Australian jurisdictions. That duty may conflict with the imposition of a duty of care to an individual the subject of that information. There is also, as I have indicated, the difficulty of inconsistency between the law relating to negligence and the law relating to defamation.
For these reasons it seems to me that I should uphold the defendant's submission that the cause of action in negligence should also result in judgment for the defendant. Accordingly, I will order pursuant to Rule 23.01 of the Rules of the Supreme Court that there be judgment for the defendant. The appeal, it follows, will also be dismissed.
(Discussion ensued.)
I have before me an application by the defendant who has successfully prosecuted its summons seeking judgment for it against the plaintiff for costs assessed on a solicitor-client basis. The submission in support of such an order for costs was based upon a letter dated 4 July 2007 from the solicitors for the defendant to the solicitors for the plaintiff. In that letter the defendant offers to settle the plaintiff's claim on terms that the defendant will pay to the plaintiff the sum of $7,500 inclusive of costs upon condition that the plaintiff wholly discontinues his claim against the defendant. The letter goes on to say that acceptance of the offer would require that the plaintiff to lodge a Notice of Discontinuance wholly releasing the State of Victoria from this proceeding and further execute a Deed of Release releasing the State of Victoria from all future claims relating to the subject matter of this proceeding. It is submitted by Mr Selemi on behalf of the plaintiff that the letter is equivocal at best and is open to the interpretation that the offer involves the plaintiff disavowing any right to sue the defendant in the future for any cause of action arising from the admittedly inaccurate entries placed upon the data base maintained by Victoria Police in conjunction with the various police forces throughout Australia.
There is, I think, some substance in the plaintiff's claim when one looks at the words to which I have earlier referred, "Execute a Deed of Release releasing the State of Victoria from all future claims relating to the subject matter of this proceeding." However the letter must be read as a whole and the earlier passage to which I also referred relating to the discontinuance by the plaintiff of his claim against the defendant is a reference it seems to me which clearly enough relates only to the claim then being prosecuted by plaintiff pursuant to the Amended Statement of Claim the subject of this proceeding.
That interpretation of the letter is, it seems to me, supported by a reading of the letter in its entirety and in particular that portion of the letter which appears under the heading "Merits of the Claim" on page 2. There the defendant sets out its position in relation to the deficiencies in the Amended Statement of Claim. Those deficiencies of course relate to that particular pleading, not necessarily to the broader proposition that the plaintiff had no possible cause of action and must eschew any claim in relation to any possible cause of action arising out of the publication to the authorities in Western Australia of incorrect data relating to him.
If there were any elements in the letter that required further explication or explanation, then it was of course open to the solicitors for the plaintiff to seek such assistance from the solicitors for the defendant. I am informed from the Bar table however, and accept, that the letter of 4 July 2007 evoked no response from the plaintiff's solicitors. In those circumstances it seems to me to be inadequate for the plaintiff now to submit that the letter should be read in the way put on behalf of the plaintiff by Mr Selemi. Even given that the letter is on one view ambiguous, that ambiguity might have been readily cured by an approach to the defendant's solicitors, an approach which was not taken. The offer otherwise being in my view entirely reasonable, it seems to me that in those circumstances the defendant should not be out of pocket in its prosecution of it's summons.
I say that however bearing in mind the difficult personal position in which the plaintiff necessarily found himself from the moment that he was told by the authorities in Western Australia that he had been convicted of criminal offences. That information was inaccurate. The plaintiff was naturally concerned about it and naturally enough sought to pursue such remedies in relation to it as were available to him.
Given those considerations, it seems to me that it would perhaps most appropriate if the difference between party and party and solicitor-client costs were borne by the solicitors for the plaintiff. Those solicitors however are not before me and they being unable to answer any suggestion that that be the appropriate order, I will not make it. I would however urge the plaintiff's solicitors to consider seriously whether or not they ought charge the plaintiff with the full amount of costs which, in my opinion, should go to the defendant.
I would order that the costs of the summons of 4 September 2007 be paid as between solicitor and client by the plaintiff to the defendant.
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