Nash v The State of Western Australia
[2023] WADC 14
•16 FEBRUARY 2023
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS
LOCATION: PERTH
CITATION: NASH -v- THE STATE OF WESTERN AUSTRALIA [2023] WADC 14
CORAM: PRINCIPAL REGISTRAR MCGIVERN
HEARD: 1 DECEMBER 2022
DELIVERED : 16 FEBRUARY 2023
FILE NO/S: CIV 1571 of 2022
BETWEEN: MARK NASH
Plaintiff
AND
THE STATE OF WESTERN AUSTRALIA
Defendant
Catchwords:
Practice and procedure - Application to strike out indorsement and pleadings in their entirety and to dismiss specific causes of action - Defective indorsement - Inadequate pleadings - Leave to re-plead
Legislation:
Civil Liability Act 2002 (WA), s 5Q, s 5S
Rules of the Supreme Court 1971 (WA), O 1 r 4A, O 1 r 4B(1), O 1 r 4B(2), O 6 r 1, O 6 r 1(1), O 18 r 6(2), O 20 r 2, O 20 r 2(3), O 20 r 3, O 20 r 3(c), O 20 r 7(2), O 20 r 8(1), O 20 r 13, O 20 r 19, O 20 r 19(1), O 20 r 19(3)(c), O 21 r 1(1), O 21 r 1(2), O 21 r 1(3), O 21 r 5
The Police Act 1892 (WA), s 137(5)
Result:
Application allowed in part
Representation:
Counsel:
| Plaintiff | : | In person |
| Defendant | : | Ms J N Harman |
Solicitors:
| Plaintiff | : | Not applicable |
| Defendant | : | State Solicitor's Office |
Case(s) referred to in decision(s):
ABB Service Pty Ltd v Hetherington [2001] WASCA 417
Ave v Palermo [2022] WADC 121
Barclay Mowlem Construction Ltd v Dampier Port Authority [2006] WASC 281; (2006) 33 WAR 82
Belgravia Nominees Pty Ltd v Lowe Pty Ltd [2017] WASCA 127; (2017) 51 WAR 341
Calabro v The State of Western Australia [No 3] [2014] WASC 84
Culleton v Permanent Custodians Ltd [2018] WASC 251
Dare v Pulham [1982] HCA 70; (1982) 148 CLR 658
English v Vantage Holdings Group Pty Ltd [2021] WASCA 47
Glendinning v Cuzens [2009] WASCA 21
MJL v The State of Western Australia [2015] WASC 348
Moder v Commonwealth of Australia [2012] QCA 92; (2012) 261 FLR 396
Morgan v Banning (1999) 20 WAR 474
Nyoni v Patterson [2012] WASCA 171
Ogbonna v Programmed Integrated Workforce Ltd [No 2] [2020] WADC 150
Re Rules of the Supreme Court 1971 (WA); Ex Parte Gates [2018] WASC 213
Re Rules of The Supreme Court 1971 (WA); Ex Parte Ruba [2020] WASC 237
Renowden v McMullin [1970] HCA 24; (1970) 123 CLR 584
Saffari v Western Australia Police [2022] WASC 200
Thorpe v Commonwealth (No 3) (1997) 71 ALJR 767
Vantage Holdings Group Pty Ltd v Donnelly [No 4] [2019] WASC 398
Wentworth v Rogers (No 5) (1986) 6 NSWLR 534
PRINCIPAL REGISTRAR MCGIVERN:
Introduction
This is an application by the defendant, principally for orders striking out the entirety of the plaintiff's indorsement of his amended writ and the pleadings comprising his amended statement of claim.[1] The application was also for orders dismissing particular causes of action.[2]
[1] Pursuant to Rules of the Supreme Court 1971 (WA) (RSC) O 20 r 19(1), O 20 r 19(3)(c).
[2] As to which, see [16] and [48] below.
In these reasons I will refer to the applicant as the defendant, and the respondent as the plaintiff, reflecting their respective party status in the substantive action.
The application was heard at a special appointment on 1 December 2022, following which I reserved my decision.
For the reasons that follow, the application is allowed in part.
Relevant procedural history
The plaintiff, who is unrepresented:
(a)commenced proceedings by filing a writ on 17 April 2022 (First Writ), and has since (with leave) filed an amended writ on 7 September 2022 (Second Writ), and purported to file (without leave) a further amended writ on 27 October 2022; and
(b)filed a statement of claim on 3 May 2022, and has since filed a further statement of claim on 9 May 2022 and amended and re‑amended statements of claim on 10 May 2022, 3 September 2022, 23 September 2022 and 4 November 2022 (referred to respectively as the First, Second, Third, Fourth, Fifth and Sixth SOC).
Named parties
The First Writ and First SOC named 'WAPOL (ABN 91 724 684 688)' as the defendant.
On 4 May 2022, the defendant entered a conditional appearance on the stated basis that the defendant 'should be properly named the State of Western Australia'.
The plaintiff filed the Second SOC on 9 May 2022 purporting in that document to name the State of Western Australia as the defendant.
At a chambers hearing on 31 May 2022, Registrar Kubacz made orders[3] which included that the plaintiff file and serve an amended writ and statement of claim by 21 June 2022. The issue of the named defendant was explicitly addressed at that hearing.
[3] Which were ultimately extracted by the defendant on 13 October 2022.
The Second Writ, and each subsequent amended statement of claim filed by the plaintiff, names the State of Western Australia as the defendant.
It is clear from the context that:
(a)by the orders made on 31 May 2022, the leave given to the plaintiff to amend his writ and statement of claim included leave to amend the defendant;[4] and
(b)by the Second Writ, the present-named defendant became the defendant in the action (and the court and parties have proceeded on that basis).
[4] As to which, see RSC O 21 r 1(1), O 21 r 1(2), O 21 r 1(3), O 21 r 5, O 18 r 6(2).
Shortly prior to the special appointment, on 18 November 2022, the plaintiff filed a minute by which he proposed to further amend the writ, such as to:
(a)amend his own name to 'Mark Stephen NASH' (that is, to add a middle name);
(b)amend the named defendant to 'Western Australian Police'; and
(c)replace the indorsement (which, on the Second Writ, had remained unchanged from the First Writ).
At the special appointment:
(a)the plaintiff proposed that I make orders in relation to his minute filed on 18 November 2022; and
(b)I declined to do so, and explained that he would need to bring a separate application for leave to further amend the writ.[5]
The application
[5] ts 16, 1 December 2022. See: RSC O 21 r 1(1), O 21 r 1(2), O 21 r 1(3), O 21 r 5. I note for completeness that counsel for the defendant indicated that any such application would be opposed on the ground that 'Western Australian Police' is not an entity capable of being sued: ts 20 - ts 21, 1 December 2022.
The defendant initially brought the present application by filing a chamber summons on 9 May 2022 (after the plaintiff had filed the First Writ and Second SOC), pursuant to which it sought orders that:
(a)the plaintiff's writ be set aside pursuant to O 6 r 1 of the RSC on the grounds that it does not comply with O 6 r 1(1) of the RSC;
alternatively, that:
(b)the plaintiff's First Writ and First SOC be struck out in their entirety pursuant to O 20 r 19(1) of the RSC; and
(c)the action against the defendant be dismissed.
Subsequently, in the context of the plaintiff's evolving pleadings:
(a)on 13 October 2022 (after the plaintiff had filed the Second Writ and Third, Fourth and Fifth SOC), the defendant filed an amended chamber summons; and
(b)at the special appointment (after the plaintiff had filed the Sixth SOC), the defendant applied to further amend the application, in terms of a further amended chamber summons dated 1 December 2022, which was handed up (and a copy provided to the plaintiff).
At the special appointment, I gave the defendant leave to amend the application, largely in the terms proposed in the amended chamber summons dated 1 December 2022,[6] which had the effect of narrowing the substance of the application to the following:
3.The Plaintiff's indorsement on the [Second Writ] and the [Fifth and Sixth SOC] be struck out in their entirety pursuant to Order 20 r 19(1) of the RSC on the grounds that they:
(i) disclose no reasonable cause of action against the Defendant pursuant to Order 20 r 19(1)(a);
(ii) are scandalous, frivolous and/or vexatious pursuant to Order 20 r 19(1)(b);
(iii) may prejudice, embarrass or delay the fair trial of the action pursuant to Order 20 r 19(1)(c); and
(iv) are otherwise an abuse of process of the Court pursuant to Order 20 r 19(1)(d).
4.The Plaintiff's claims for malicious prosecution and misfeasance in public office be dismissed.
[6] I refused to amend the application in the terms proposed in that document only insofar as it addressed the question of costs: ts 19, 1 December 2022.
Counsel for the defendant argued, in essence, that:
(a)fundamentally, the plaintiff's indorsement and pleadings are largely unintelligible (in the sense that it is almost impossible to discern any particular cause or causes of action) and, for this reason, ought to be struck out entirely;
(b)further, insofar as the plaintiff might be understood as bringing a claim for misfeasance in public office or malicious prosecution (or any tort involving malice), those causes do not lie against the defendant;[7] and
(c)to the extent that the pleadings disclose any cause of action that might lie against the State, they fall outside the scope of the writ.
[7] By reason of Police Act 1892 (WA) s 137(5).
The plaintiff, in essence, submitted that:
(a)the defendant is raising over-technical objections to his indorsement and pleadings, and when the indorsement and pleadings are read together, is in a position to understand the claims against it;
(b)the plaintiff named the present defendant in the proceedings because of the defendant's position, and the conditional appearance it entered - the upshot being that he could not appreciate how, in those circumstances, the defendant could object to certain causes of action lying against it; and
(c)the application should fail and the defendant should be required to 'defend [the action] in the right way in a defence'.[8]
[8] ts 41 - ts 42, 1 December 2022.
Rules and principles
The starting point is to note that, except to the extent of any conflict with the District Court Rules 2005 (WA) (DCR), the RSC apply to and in respect of any case in this Court.
Of particular relevance to the application, RSC O 20 r 19(1) provides:
19.Striking out pleadings etc.
(1) The Court may at any stage of the proceedings … order to be struck out or amended any pleading, or the indorsement of any writ in the action, or anything in any pleading or in the indorsement on the ground that -
(a) it discloses no reasonable cause of action or defence, as the case may be; or
(b) it is scandalous, frivolous or vexatious; or
(c) it may prejudice, embarrass or delay the fair trial of the action; or
(d) it is otherwise an abuse of the process of the Court,
and may order the action to be stayed or dismissed or judgment to be entered accordingly, as the case may be.
Objections going to the adequacy of pleadings and indorsements, and the exercise of the court's discretion to make orders in that regard, should be approached in a manner that:
(a)reflects the contemporary role of pleadings, in the context of contemporary case management practices;[9] and
(b)best attains the objectives contained in O 1 r 4A and O1 r 4B(1) RSC,[10] which relevantly include:
(i)promoting the just determination of litigation;
(ii)avoiding delays and disposing efficiently of the business of the court, and maximising the efficient use of available judicial and administrative resources; and
(iii)ensuring proportionality between the subject matter and complexity of a dispute, and the procedure and costs of resolving it.
Qualitative grounds
[9] Barclay Mowlem Construction Ltd v Dampier Port Authority [2006] WASC 281; (2006) 33 WAR 82 (Barclay Mowlem) [5] ‑ [7]; Re Rules of The Supreme Court 1971 (WA); Ex Parte Ruba [2020] WASC 237 (Ruba) [31].
[10] RSC O 1 r 4B(2).
RSC O 20 r 19(1) requires that each of the indorsement and statement of claim must be considered to determine whether they constitute or give rise to the objectionable qualities identified in sub‑rules (a) to (d).
There is considerable overlap between the various qualitative grounds for striking out an indorsement or pleading, and some are used interchangeably.[11]
[11] Re Rules of the Supreme Court 1971 (WA); Ex Parte Gates [2018] WASC 213 (Gates) [25].
In brief:
(a)In the context of an application such as the present, the terms 'abuse' (of process), 'frivolous' and 'vexatious' bear a technical legal meaning. They describe the character of a proceeding or a step in a proceeding, rather than the motives of a party (though an improper motive or collateral purpose can of course affect the character of the proceeding or step taken).[12]
(b)What amounts to an abuse of the court's process is insusceptible of a formulation comprising closed categories. It extends to all categories of case in which the processes and procedures of the court, which exist to administer justice with fairness and impartiality, may be converted into instruments of injustice or unfairness. The notion includes proceedings that are clearly doomed to fail, are plainly unsustainable, or are otherwise frivolous, vexatious or oppressive.[13]
(c)A proceeding is frivolous or vexatious when it is not worthy of serious consideration, is lacking in substance or insupportable in law, discloses no cause of action or is groundless. The terms extend to actions that have no reasonable prospects of success, or which might be described as a sham. A proceeding will also be vexatious if it is productive of serious and unjustified trouble and harassment.[14]
(d)Obvious unsustainability, because of the absence of substance or support in law, also characterises a proceeding that fails to disclose a reasonable cause of action.
(e)Finally, pleadings may prejudice, embarrass or delay the fair trial of an action because they are evasive, they conceal or obscure the real questions in controversy, they are ambiguous or not reasonably intelligible, they raise immaterial or irrelevant issues, they fail to confine the issues or state the case of the party in question with reasonable particularity, or they raise a case in terms which are simply too general.[15]
[12] Gates [24], [32] and the authorities cited therein.
[13] Gates [26], [28] - [29] and the authorities cited therein.
[14] Gates [30] - [31], [33] and the authorities cited therein.
[15] Vantage Holdings Group Pty Ltd v Donnelly [No 4] [2019] WASC 398 (Vantage Holdings) [60]. See also English v Vantage Holdings Group Pty Ltd [2021] WASCA 47 [55].
The key consideration is whether or not each of the pleadings and the indorsement meet the fundamental objectives of those instruments in the context of contemporary case management.[16]
[16] Vantage Holdings [60].
Accordingly, notwithstanding that RSC O 20 r 19 applies both to an application to strike out a pleading and an application to strike out an indorsement of a writ, slightly different considerations will apply to the disposition of each, reflecting the distinct roles of and requirements for general indorsements and pleadings.
Functions of indorsements and pleadings
Under the court rules, a party's claim is disclosed in writing by, in order of increasing particularity, any general indorsement of claim on the writ,[17] the pleadings,[18] and (where necessary) particulars of claim.[19] Each of these devices serves its own purpose.
[17] Being a 'concise statement of the nature of the claim made, and of the relief or remedy required': RSC O 6 r 1.
[18] Which, within the parameters set by the writ, must 'state specifically the relief or remedy which the plaintiff claims': RSC O 20 r 2, O 20 r 8(1).
[19] RSC O 20 r 13. See Ave v Palermo [2022] WADC 121 [22] - [25].
Three important roles are served by a general indorsement:[20]
(a)first, it informs the defendant of the nature of the claim made and the relief sought to enable the defendant to determine whether they should enter an appearance and, if so, whether it should be a conditional or unconditional appearance;
(b)second, it enables the defendant to determine whether a cause of action is contained in the writ, and whether it might be time barred by reference to the relevant limitation period; and
(c)third, it sets out the limits within which the statement of claim must be framed.
[20] MJL v The State of Western Australia [2015] WASC 348 (MJL) [27]; ABB Service Pty Ltd v Hetherington [2001] WASCA 417(ABB Service) [7] - [10]; Glendinning v Cuzens [2009] WASCA 21 (Glendinning) [26] - [29].
As noted by the Court of Appeal in Belgravia Nominees Pty Ltd v Lowe Pty Ltd:[21]
Order 6 r 1 [RSC] requires that an indorsement be a 'concise statement of the nature of the claim made, and of the relief or remedy required'. … [It] is well established that an indorsement is not a pleading, and O 6 r 1 does not require a plaintiff to plead a cause of action in the sense in which that phrase is used in O 21 r 5. Further, indorsements should not be read narrowly, but generously. What must be identified in an indorsement is the critical events which give rise to the relief claimed, without, of course, descending to the factual particularity appropriate to a statement of claim. The ambit of the action commenced by the writ is determined by reference to the facts asserted, and not by reference to any legal labels or categories which may or may not have been used in the indorsement.
[21] Belgravia Nominees Pty Ltd v Lowe Pty Ltd [2017] WASCA 127; (2017) 51 WAR 341 (Belgravia) [10].
In brief, an indorsement must put concisely stated facts in a recognisable legal framework, showing how the plaintiffs' claims arise and the relationship between the claims and the asserted loss.[22]
[22] ABB Service [23].
Relevant to the statement of claim, the general function of pleadings is to provide a statement of a party's case sufficiently clearly that an opposing party has a fair opportunity to meet it,[23] by adequately identifying the issues to be tried and disclosing an arguable cause of action or defence.[24]
[23] Dare v Pulham [1982] HCA 70; (1982) 148 CLR 658, 664.
[24] Barclay Mowlem [7].
The basic requirement of any pleading is that it contain a statement in a summary form of the material facts on which the party pleading relies for his claim (or defence), but not the evidence by which those facts are to be proved. Those allegations, and the claims arising from them, must fall within the parameters set by the indorsement of claim in the writ.[25]
[25] RSC O 20 r 7(2), O 20 r 8(1).
Disposition
I begin by noting that where, as here (where the application is to strike out the entirety of each of the plaintiff's indorsement and statement of claim), the effect of the application is to deprive the plaintiff of the opportunity to run a case:
(a)any decision to strike out should be approach with significant caution;
(b)the applicant will bear a heavy onus in satisfying the court that such an outcome is warranted; and
(c)the task should not be approached in an overly technical manner.[26]
[26] See, for example, Gates [24], [26]; Ruba [25].
The need to approach such an application with caution is amplified when the claimant is self-represented.[27]
[27] As has often been repeated, courts should approach the peremptory determination of litigation by an in person litigant with special care, to ensure that within the possibly ill-expressed and unstructured statement of claim, there is no viable cause of action: Wentworth v Rogers (No 5) (1986) 6 NSWLR 534, 536 - 537.
Nevertheless, while a degree of leniency and flexibility is proper, it remains the case that all litigants, including self-represented litigants, are bound to comply with the rules of the court which are designed to enhance the efficiency and economy of litigation and reduce the unnecessary expenditure of private and public resources.[28]
Indorsement
[28] Nyoni v Patterson [2012] WASCA 171 [36]; Culleton v Permanent Custodians Ltd [2018] WASC 251 [35]; Gates [57].
The Second Writ (which is the only writ currently before the court and the subject of the application) bears the following indorsement:
Compensation for PTSD/Psychological harm deprivation of Human Rights & Duty of Care
1.The W.A Police Officers abused their positions of Authority by unlawfully arresting, imprisoning, and trafficking I Mark Stephen Nash through the prison system. To Extent keeping me in a holding cell prior to court beyond the 24hour limit.
2.The Police Officers has Evidently given False and Misleading Statements in their own Evidence upon Cross Examination under oath.
3.The Police Attended the Prison to unlawfully move me to one Prison to the other.
4.Perjury and Forgery of Documents to conspire to falsely charge an Indictable Matter upon me & to Conceal their Misconduct.
Even allowing for the plaintiff's status as a self-represented litigant, it is difficult to make out the intended cause or causes of action from the indorsement. Doing the best I can, it appears:
(a)from the unnumbered lead paragraph, that the plaintiff seeks to claim for pure mental harm[29] arising in negligence (breach of a duty of care) and from a 'deprivation of [his] human rights'; and
(b)that the four numbered paragraphs are intended to comprise the more specific allegations of the conduct of the defendant giving rise to the asserted wrongs (breach of duty and deprivation of human rights).
Arguably, the indorsement might also evince an intention to claim for misfeasance in public office and false imprisonment.
[29] Within the meaning of that term in the Civil Liability Act 2002 (WA) (CLA) s 5Q.
As emphasised above, an indorsement of claim is not a process of incantation - merely naming a cause of action is insufficient to serve the purpose of an indorsement.
Rather, because a cause of action is a factual situation that entitles a person to approach the court for relief, for an indorsement to disclose a reasonable cause of action, it must disclose the factual situation linking the nature of the action and the relief sought.[30]
[30] Ogbonna v Programmed Integrated Workforce Ltd [No 2] [2020] WADC 150 [97] - [98], citing Morgan v Banning (1999) 20 WAR 474.
The indorsement is clearly inadequate in that regard. The matters referred to in numbered pars 1 - 4 of the indorsement are largely conclusionary in nature, without reference to anything that would allow the defendant to determine any particular incidents that might give rise to a cause of action. There is, for example, no reference to the date or dates of the matters complained of, or to any particular proceedings.
Regard may, however, be had to the statement of claim if the detail contained in the indorsement is inadequate. As long as the statement of claim is within the causes of action mentioned in the writ, it may operate to 'alter, modify or extend' the indorsement[31] such as to remedy the defect in the indorsement.[32]
Statement of claim
[31] RSC O 20 r 2(3).
[32] MJL [31], citing Renowden v McMullin [1970] HCA 24; (1970) 123 CLR 584, 596 - 597, 609.
As noted above, the application is stated to be brought in relation to both the Fifth SOC and Sixth SOC. Such an approach is, however, unwarranted. Where a statement of claim is validly[33] amended, then the amended statement of claim stands as the only operative pleading (rather than there being several concurrently operative statements of claim). I have proceeded on the basis that the plaintiff has amended his statement of claim and that his pleadings in the action are now contained in, and only in, the Sixth SOC.[34]
[33] In the sense that the amendment is made with leave or in circumstances where leave is not required.
[34] To avoid confusion, and to give clear effect to the determination of the application, I will order that all previous versions of the statement of claim be inactivated on the court file.
Unlike the indorsement, the Sixth SOC does, with some particularity, make allegations about the conduct of particular police officers on particular dates between July 2020 to March 2022. In broad terms, the plaintiff makes various allegations against the police, including that:
(a)on 2 July 2020, a search was unlawfully carried out at his residence, and certain property was unlawfully seized (and damaged) by certain officers;
(b)on 12 July 2020:
(i)the plaintiff was unlawfully arrested and held for questioning; and
(ii)his mobile telephone was interfered with;
(c)on 22 October 2020, false and misleading information (in the form of altered records) was given by police to a magistrate at a sentencing hearing concerning the plaintiff;
(d)on 6 August 2021, the plaintiff was unlawfully arrested and imprisoned by police;
(e)on 17 September 2021 the police attempted to arrest, and on 29 September 2021 did arrest, the plaintiff unlawfully;
(f)in or about November 2021, the police unlawfully held and transported the plaintiff;
(g)at a court hearing on 30 March 2022, a prosecutor improperly attempted to add a further charge against the plaintiff.
The plaintiff also makes allegations concerning various sets of proceedings,[35] the substance of which is difficult to make out. Broadly, it appears that the plaintiff complains that the proceedings were conducted unfairly and included the admission of fabricated evidence.
[35] In pars 10 and 13 of the Sixth SOC.
Although the allegations contained in the Sixth SOC are certainly more detailed than the indorsement, they do not in my view correct the fundamental deficiencies in the indorsement. That is, for the reasons outlined below, the statement of claim:
(a)does not disclose a reasonable cause of action against the defendant, alternatively lacks any reasonable prospect of success; and
(b)otherwise may prejudice, embarrass or delay the fair trial of the action.
I have reached that conclusion because:
(a)To the extent that the plaintiff seeks to found his claim on any 'deprivation of human rights', it is unclear from the indorsement or the statement of claim the basis upon which the plaintiff asserts that a civil claim for compensation arises. It is not possible to discern the nature or origin of any recognised cause of action.
(b)To the extent that the plaintiff seeks to found his claim on misfeasance in public office (or indeed malicious prosecution):
(i)malice is an essential element of any such claim;[36]
(ii)by reason of s 137(5) of the Police Act, the defendant could only be liable in tort for anything done by the police 'without corruption or malice' and so the claim lacks merit;[37] and
(iii)in any event, the plaintiff has not particularised the facts that he relies upon to establish malice against any individual officer.[38]
(c)To the extent that the plaintiff seeks to bring a claim in negligence for pure mental harm, the elements of a claim in negligence - being a duty of care arising from the relationship between the parties,[39] breach of that duty, and causation of compensable mental harm - are not articulated in, or do not clearly arise from, the plaintiff's pleadings or indorsement.
(d)To the extent that the statement of claim raises allegations in connection with the conduct of persons other than police officers, those allegations fall outside the parameters set by the indorsement. Further and in any event, those parts of the claim do not clearly connect with any discernible cause of action.
(e)Arguably, par 1 of the indorsement, when read with the Sixth SOC, might suggest a claim of false imprisonment. Lawful detention cannot, of course, give rise to a successful claim. Further, bare assertions of unlawfulness do not fulfil the requirement that a pleading must contain the facts that might meet the requisite elements of the claim.[40] As it stands, it is difficult to disentangle the indorsement and those parts of the Sixth SOC that are directly relevant to, and could meet the requisite elements of, a claim of false imprisonment. Accordingly, the indorsement in this regard is deficient and the pleadings are embarrassing (in the sense that they are ambiguous or not reasonably intelligible).
(f)More generally, the Sixth SOC does not plead the material facts in a coherent order capable of putting the reader (being the defendant, and indeed the court) in a position to understand the case. The pleadings may well put the defendant in a position to understand the complaints the plaintiff makes, but that is quite different to being in a position to understand (and therefore to meet) any claims he advances. They do not, in my assessment, meet this fundamental objective of a pleading.
[36] See for example: Calabro v The State of Western Australia [No 3] [2014] WASC 84 (Calabro) [35] ‑ [40], and the authorities cited therein.
[37] See for example Calabro [54] - [57].
[38] Noting that the tort of misfeasance in public office, with the requisite element of malice, 'cannot be established on the basis of the "composite of the conduct of a number of individual officers, let alone a department"': MJL [87], citing Moder v Commonwealth of Australia [2012] QCA 92; (2012) 261 FLR 396 [73].
[39] As contemplated by CLA s 5S.
[40] In this sense, the plaintiff's claim shares a number of similar features with the pleadings in Calabro (see, in particular, Calabro [58] - [69]).
By way of conclusion:
(a)as noted above, the plaintiff's indorsement does not fulfil the fundamental purposes of an indorsement and is deficient. That deficiency is an irregularity and does not render the indorsement a nullity,[41] but does make it susceptible to being struck out;
(b)although pleadings may rectify a defective writ, in this case the plaintiff's Sixth SOC is itself deficient and so incapable of curing the indorsement;
(c)the plaintiff's pleadings are themselves liable to be struck out because they are in large part ambiguous or not reasonably intelligible. They fail to confine the issues or connect the facts pleaded with the claims advanced by the plaintiff, and raise his case in terms which are too general and conclusionary; and
(d)accordingly, I am satisfied that the plaintiff's indorsement and statement of claim should be struck out in their entirety. To that extent, the application is allowed.
[41] Glendinning [27].
Dismissal
The application, as amended, included an application to dismiss the plaintiff's claims for malicious prosecution and misfeasance in public office.
The conceptual difficulty attendant in this aspect of the defendant's application is that the decision to strike out the indorsement and statement of claim is founded in large part on the conclusion that they did not disclose a reasonable cause of action.
In the circumstances, I consider such orders to be inapt and that part of the defendant's application is refused.
Leave to re-plead
I note that although the plaintiff has previously filed an amended writ, the indorsement remained unchanged as between the First Writ and the Second Writ. He has not therefore had or exercised the opportunity to recast the indorsement, or to seek to substitute the general indorsement by indorsing the writ with a statement of claim.[42]
[42] Pursuant to RSC O 20 r 3. I note, however, that the limitations contained in that rule may, in light of what appears to be the scope of the plaintiff's complaints, preclude this as a viable option.
Further, although he has filed six statements of claim, the plaintiff's pleadings continue to be deficient. Although this might ordinarily weigh against the exercise of discretion to grant the plaintiff leave to re‑plead, I note that the plaintiff's pleadings have to date been prepared and amended:
(a)other than as a result of any part or parts having been struck out; and
(b)without the plaintiff having the opportunity to consider any reasons for decision given in relation to this or any previous strike-out application.
As has previously been observed:[43]
Even if a party makes good its attack on another's pleading, a court will ordinarily permit the opponent to reframe the pleading so long as it is clear that there is point in doing so and that the further time and opportunity will have utility.
[43] Thorpe v Commonwealth (No 3) (1997) 71 ALJR 767, 774 - 775.
In my view, there is utility in allowing the plaintiff the opportunity to recast his indorsement, and make more fundamental changes to his existing pleadings, now that he is in a better position to understand the requirements of that task. Nevertheless, there is no utility in extending such leave to permit the plaintiff to advance causes of action that cannot lie against the defendant. An appropriate balance is to grant leave to the plaintiff to re-plead, subject to limitations.[44]
[44] As, for example, in: Saffari v Western Australia Police [2022] WASC 200. See [56] below.
Conclusion and proposed orders
Subject to hearing the parties, my preliminary views are that:
(a)following from the reasons above, the entirety of the plaintiff's indorsement and pleadings should be struck out;
(b)but the plaintiff should have leave to substitute the indorsement on the writ and to re-plead subject to limitations that:
(i)no claim may be brought or pleaded against a person or entity other than the named defendant;
(ii)leave in relation to bringing or pleading any claim in tort is limited by the scope of s 137(5) of the Police Act; and
(iii)leave in relation to amending the writ is limited to substituting the indorsement of claim.
Reflecting those preliminary views, and subject to hearing from the parties, I propose to make orders in terms of sch A to these reasons.
I will hear the parties as to the precise terms of the orders that should follow, and as to costs.
SCHEDULE A: PROPOSED ORDERS
The defendant has leave to amend its application in terms of pars 1 to 4 of the amended chamber summons dated 1 December 2022.
Noting that the plaintiff filed an amended statement of claim on 4 November 2022, any statement of claim or amended statement of claim filed before 4 November 2022 is inoperative and shall be inactivated on the court file.
The indorsement of claim on the writ filed 7 September 2022 and the plaintiff's statement of claim filed 4 November 2022 are, pursuant to O 20 r 19(1) of the Rules of the Supreme Court 1971 (WA), struck out in their entirety on the grounds that each:
(a)discloses no reasonable cause of action against the defendant;
(b)is scandalous, frivolous and/or vexatious; and
(c)may prejudice, embarrass or delay the fair trial of the action.
Subject to order 5 below, the plaintiff is granted leave to substitute the indorsement on the writ and re-plead his claim.
The plaintiff:
(a)must within 28 days of this order file and serve:
(i)an amended writ indorsed with a substituted indorsement of claim; and
(ii)a substituted statement of claim; and
(b)does not, by these orders, have leave to:
(i)amend the writ other than by substituting the indorsement of claim; or
(ii)plead or bring any claim against any person or entity other than the defendant; or
(iii)plead or bring any claim in tort against the defendant beyond the scope of s 137(5) of the Police Act 1892 (WA).
I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
MB
Associate to Registrar
16 FEBRUARY 2023
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