Noye v Robbins - [2000] WASC 81

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: NOYE & ANOR -v- ROBBINS [2000] WASC 81

CORAM: MASTER SANDERSON

HEARD: 21 MARCH 2000

DELIVERED : 29 MARCH 2000

FILE NO/S: CIV 2231 of 1999

BETWEEN: JEFFREY HOWARD NOYE
First Plaintiff
LINDSAY GORDON RODDAN
Second Plaintiff
AND
STEPHEN JOHN ROBBINS
Defendant

Catchwords:

Practice and procedure - Pleading summons - Turns on its own facts

Legislation:

Police Force Regulations 1979 (WA)

Restraint of Debtors Act 1984 (WA)

Result:

Pleading struck out in part

Representation:

Counsel:

First Plaintiff                :     In person
Second Plaintiff            :     In person
Defendant:     Mr T J Kavanagh

Solicitors:

First Plaintiff                :     In person
Second Plaintiff            :     In person
Defendant:     Corsers

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

Bridgetown/Greenbushes Friends of the Forest Inc v Executive Director of the Department of Conservation and Land Management (1997) 18 WAR 126
Davis v Gell (1924) 35 CLR 275
Kimberley Downs Pty Ltd v State of Western Australia, unreported; SCt of WA; Library No 6414; 25 August 1986
Little v Law Institute of Victoria (No 3) [1990] VR 257
Wan v Sweetman (1998) 19 WAR 94

Case(s) also cited:

Bond Corporation Ltd v Thiess Contractors Pty Ltd & Ors (1987) 71 ALR 615
Coe v Commonwealth (1979) 24 ALR 188
Commonwealth Life Assurance v Smith (1938) 59 CLR 527
Dalgetty Australia Ltd v de Vahl Rubin, unreported; FC SCt of WA; Library No 5485; 24 August 1984
Day v William Hill (Park Lane) Ltd [1949] 1 All ER 219
Fraser v Balfour (1918) 87 LJKB 1116
General Steel Industries Inc v Commissioner for Railways NSW (1964) 112 CLR 125
Gibbs v Rea [1983] 3 WLR 72
Glinski v McIver [1962] 1 All ER 696
Hospitals Contribution Fund of Australia v Hunt (1983) 44 ALR 365
Jingellic Minerals NL v Abigroup Ltd (1992) 7 WAR 566
Leibo v Buckman [1952] 2 All ER 1057
Mann v Jacombe (1961) NSWR 273
Mohammed Amin v Jagendra Kumarbanner Jee [1947] AC 322
Niven v Grant (1903) 29 VLR 102
Packard v Transport Trading Agency Co Ltd (1912) 14 WALR 19
R v Leece (1996) 65 FCR 544
Riches v DPP [1973] 2 All ER 935
Saville v Roberts (1698) 1 Ld Raym 374

MASTER SANDERSON: This the defendant's application to strike out the plaintiffs' statement of claim. The first plaintiff was, at all material times, a police officer. He is now retired. The defendant presently is, and was at all material times, also a police officer. The claim brought by the plaintiffs against the defendant concerns certain charges laid against both plaintiffs by the defendant. The claim also relates to certain disciplinary action taken by the Police Department at the instigation of the defendant. The plaintiffs' claim is for malicious prosecution and misfeasance in public office. For the purposes of this pleading summons it is unnecessary to go into the details of the charges brought against the plaintiffs.
The defendant's complaints against the statement of claim can be broken down into four separate categories. First, it is said that the claim based on malicious prosecution, insofar as it relates to internal disciplinary charges instituted by the defendant against the first plaintiff (par 25 to par 28 of the statement of claim), cannot stand because an action for malicious prosecution does not lie in such circumstances. It is submitted, on behalf of the defendant, that it is only in relation to "court" proceedings that an action for malicious prosecution can lie. Any internal disciplinary charges are brought, it is said, under the Police Force Regulations 1979 (WA) and as these charges are entirely administrative or bureaucratic no abuse of the process of a court is involved.
For much of its history, the tort of malicious prosecution has been confined to actions involving bankruptcy petitions and winding‑up applications: see Little v Law Institute of Victoria (No 3) [1990] VR 257. However, in the Little decision, the Full Court of the Supreme Court of Victoria concluded that there was no basis for limiting proceedings in which an action for malicious prosecution might lie. In Wan v Sweetman (1998) 19 WAR 94, Parker J appears to have accepted and applied what was said by the court in Little (see 100 ‑ 101). The Wan case concerned an action brought by the defendant in reliance upon the Restraint of Debtors Act 1984 (WA). It was alleged by the plaintiff that the use of this Act by the defendants was malicious. There is nothing in the Wan decision which deals with the question of whether an action for malicious prosecution is available in relation to proceedings in the nature of disciplinary proceedings. Nor was any authority cited to me in support of the proposition that the action was available.
The standard texts dealing with the law of torts do not rule out the prospect that the cause of action might be available in disciplinary proceedings. Fleming, "Law or Torts" 9th ed says, " … there is nothing in the history of the action, nor any pronouncement of binding authority to suggest the action is confined to criminal proceedings". The learned author goes on to deal with the basis of the cause of action. He makes the point that it is based upon the damage to the reputation of an individual consequent upon the action being brought. If that is the case, it may well be that disciplinary proceedings where the possible outcome is the dismissal of an individual from the Police Service could allow for a claim of malicious prosecution. In any event, it would seem to me that the position is at least arguable. On a strike‑out application, it is inappropriate to make orders which might stifle the development of the law: see Kimberley Downs Pty Ltd v State of Western Australia, unreported; SCt of WA; Library No 6414; 25 August 1986; Bridgetown/Greenbushes Friends of the Forest Inc v Executive Director of the Department of Conservation and Land Management (1997) 18 WAR 126 per Templeman J at 188 ‑ 189.
On that basis, then, I am prepared to allow the plea in relation to the disciplinary charges to stand.
The second complaint made by the defendant relates to certain charges on which the plaintiffs were committed to trial (par 4 through to par 24, excluding par 20 of the statement of claim). In relation to these charges, the Crown filed a nolle prosequi. It is submitted by the defendant that this is not a termination of proceedings favourable to the defendants as is required to ground an action for malicious prosecution. In support of this proposition, the defendant relies upon the decision of Davis v Gell (1924) 35 CLR 275. The headnote of the case puts the position as follows:
"In an action for malicious prosecution the plaintiff must prove his innocence, but the fact that on his trial a nolle prosequi was entered, although it established that the proceedings terminated in his favour, does not establish his innocence."
The facts of the case were that the plaintiff had brought an action for malicious prosecution after he was charged with certain offences, pleaded not guilty and a nolle prosequi was entered by the Crown. At the trial of the action, the jury was directed that it should assume the plaintiff was innocent because the criminal proceedings had ended in his favour. It was argued by the appellant that this direction was an error of law. The High Court agreed. Isaacs ACJ and Starke J considered the action for malicious prosecution and its elements in some detail. Starke J concluded (at 297 ‑ 298):
"Consequently, in my opinion, if the plaintiff in an action for malicious prosecution seeks to prove his innocence by acquittal, then he must establish it in the sense already indicated. But it is 'not necessary in an action for malicious prosecution that the plaintiff should allege or prove such an acquittal, for it may be brought under circumstances which preclude the possibility of such an acquittal' … He may show, for instance, that the proceedings terminated in his favour by a nolle prosequi or by the ignoramus of a grand jury or by the refusal of a justice to commit to trial, or by some want of jurisdiction in the Court or some technical defect in the indictment or information, and so forth. Proof of these facts would show that the proceedings terminated in favour of the plaintiff, but they do not establish the innocence of the plaintiff, and the burden is upon him in the first instance to make out his case. It is unnecessary, and indeed undesirable, in this case to discuss what (if any) presumptions in favour of innocence, or other evidence, would satisfy the burden."
At first reading, the decision in Davis v Gell and the comments by the various justices seemed to be at odds with the presumption of innocence to which an accused person is entitled. The answer may be that the presumption of innocence is really no more than another way of saying that the prosecution is obliged to prove the case against the accused beyond reasonable doubt. If the prosecution is not able to discharge that burden, then a not guilty verdict is returned. But the presumption of innocence does not survive termination of the criminal proceedings. Whatever may be the correct view, there is now considerable doubt as to the applicability of Davis v Gell. In Commonwealth Life Assurance Society Ltd v Smith (1938) 59 CLR 527, the court held that in an action for malicious prosecution arising out of a charge of conspiracy in respect of which the Attorney‑General for New South Wales, after the plaintiff had been committed for trial, refused to file an indictment, the guilt or innocence of the plaintiff was not an issue going to the cause of action. In reaching this conclusion, the court sought to distinguish Davis v Gell. However, the majority (Rich, Dixon, Evatt and McTiernan JJ) discussed the decision at length. While Davis v Gell is not expressly overruled, the discussion strongly suggests that it is not supported by authority (see 533 ‑ 543). On this basis, Fleming concludes (at note 56 p 679):
"The majority decision in Davis v Gell that a nolle prosequi, whilst not an absolute bar, required the plaintiff to prove his innocence, may be safely discounted in the light of Commonwealth Life Assurance v Smith which rejected this compromise for the analogous case of an A‑G's refusal to file an indictment."
For my part, I am not entirely sure that Davis v Gell can be so easily discounted. It would appear to be binding authority at least so far as actions for malicious prosecution are brought in relation to proceedings terminated by a nolle prosequi. But I am satisfied that the decision is attended by sufficient doubt to allow the present pleading by the plaintiffs to stand. It may be prudent for them to plead, as an alternative, their innocence and seek to establish such innocence at trial. But that is a matter entirely for them. In the context of this application, I am prepared to allow the pleading in its present form to stand.
The third objection taken by the defendant relates to the complaints upon which the second plaintiff was not committed for trial (par 4 to par 24, including par 20 of the statement of claim). The submission in relation to these matters is that they were so inextricably bound with the charges in respect of which the plaintiffs were committed for trial, that if the paragraphs in relation to that matter could not stand, the pleading in relation to these matters could not stand. Given the conclusion I have reached in relation to the other charges, that submission must fail. I would not strike out these paragraphs.
Finally, in relation to the claim for misfeasance in public office, it is submitted that par 29 is bad because it pleads material facts as particulars. This objection is well made. The mischief can be cured by simply repleading the particulars as materials facts and, if this is done, the pleading can stand.
The defendant further submits that the reference to "the Complaints" in par 30 is confusing because the term "the Complaints" is not defined. Once again, this criticism, although a matter of form, is, in my view, well‑founded. The pleading in its present form is confusing. Minor amendment will cure this confusion and such an amendment should be made. I will give leave for that purpose.
In the circumstances, the appropriate orders are that I strike out par 29 and par 30 of the statement of claim and give the plaintiffs leave to replead. Otherwise, the chamber summons will be dismissed. I will hear the parties as to the appropriate order with respect to costs.