Odeh v State of New South Wales (No 2)

[2019] NSWSC 1424

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Odeh v State of New South Wales (No 2) [2019] NSWSC 1424

Hearing dates:

15 October 2019

Date of orders:

15 October 2019

Decision date:

15 October 2019

Jurisdiction:

Common Law

Before:

Rothman J

Decision:

(1)   The Statement of Claim be struck out.

 

(2)   The proceedings be dismissed.

 

(3)   The plaintiff pay the first defendant’s costs of and incidental to the proceedings on the ordinary basis.

 

(4)   The plaintiff pay the second defendant’s costs of and incidental to the proceedings on an indemnity basis.

 (5)   Any party seeking to amend any aspect of the cost order, other than an aspect made by consent, may do so within fourteen days by contacting my Associate directly.

Catchwords:

PRACTICE AND PROCEDURE – application on notice to file Amended Statement of Claim for malicious prosecution and stay pending outcome of criminal appeal – defendant’s application to strike out and dismiss proceedings – cause of action not yet arisen – delay – no relevant time constraint – proceedings dismissed

Legislation Cited:

Civil Procedure Act 2005 (NSW), ss 56, 64(3)

Cases Cited:

A v State of New South Wales (2007) 230 CLR 500; [2007] HCA 10
Hadkinson v Hadkinson [1952] P 285; (1952) 2 All ER 567
Wilkinson v Downton [1897] EWHC 1 (QB)
Williams v Spautz (1992) 174 CLR 509; [1992] HCA 34

Texts Cited:

Sappideen and Vines, Fleming’s Law of Torts (10th ed, 2011, Thomson Reuters)

Category:

Procedural and other rulings

Parties:

Husam Ali Odeh(Plaintiff)
State of New South Wales (First Defendant)
Zina Al-Obiady (Second Defendant)

Representation:

Counsel:
T Hall (Solicitor) (Plaintiff)
S Chrysanthou (First Defendant)
N Broadbent (Second Defendant)

  Solicitors:
Hall Partners Pty Ltd (Plaintiff)
Crown Solicitor’s Office (First Defendant)
Legal Aid NSW (Second Defendant)

File Number(s):

2016/131855

EX TEMPORE Judgment

1. HIS HONOUR: The Court has before it two motions each on notice, one by the plaintiff seeking the filing of an Amended Statement of Claim and the other by the second defendant seeking the striking out of the proceedings.

2. The proceedings have a lengthy history. The first Statement of Claim was filed in the District Court on 2 October 2015, dealing with only one of the factual circumstances that are said to give rise to the causes of action.

3. At a later time, the Statement of Claim was filed in the Supreme Court relating to what I will call the remainder of the factual circumstances that are said to give rise to the causes of action and that was done on 29 April 2016. As a consequence of the multiplicity of proceedings, the District Court matter was called up and heard together with the Supreme Court proceedings and the plaintiff has for some period of time sought to make his Statement of Claim conform with the procedures relating to pleadings.

4. On 1 April 2019, the Court last dealt with the issue of the filing of an Amended Statement of Claim and in those proceedings dealt with what was marked as Exhibit A on the motion being the proposed Amended Statement of Claim.

5. At that point in time it was the latest iteration of the Amended Statement of Claim. By that stage it is claimed there were some 16 iterations of the Amended Statement of Claim. None of them have been sought to be filed as an Amended Statement of Claim, notwithstanding that the defendants have not filed a defence to any of the matters and the pleadings have not closed. In any event, the iterations that were served by the plaintiff for each of the proposed Amended Statements of Claim were iterations based on objections that were raised by one or other of the defendants but at this point in time the matter is not resolved.

6. The circumstance of a plaintiff seeking to deal reasonably with an objection that is raised by the proposing of a further Amended Statement of Claim is one that ought not be discouraged. The amended document that arises out of such a process may or may not be a result of the conclusion by the plaintiff that the objections that were taken are appropriate or even arguable. It may well be the result of an attempt to achieve that which the plaintiff desires and to ameliorate or obviate the objections that may be taken in relation to that process.

7. Nevertheless, a long time has elapsed from October 2015 or the end of April 2016 until today’s date. We are talking four or three and a half years, some of which time has been taken up by the Court. Regardless, it is a long time before any Statement of Claim has been made which purports to meet the requirements of the Act and the Rules.

8. The plaintiff comes before the Court now seeking, in essence, a stay of these proceedings. It is unnecessary to detail all of the facts that give rise to that application for a stay.

9. It is sufficient for present purposes to summarise the factual circumstance in this way. The pleadings seek to raise causes of action based upon malicious prosecution and collateral abuse of process. I reiterate, as I think I did in the judgment on 1 April 2019, that there is no application for any tort purportedly based upon the judgment in Wilkinson v Downton [1897] EWHC 1 (QB). Nevertheless, the two applications are based upon malicious prosecution and/or collateral abuse of process.

10. In order for a plaintiff to succeed on the malicious prosecutions, the plaintiff must allege and then prove a number of elements. Those elements were set out in a number of proceedings and are described, in Sappideen and Vines, Fleming’s Law of Torts (10th ed, 2011, Thomson Reuters), as: first, the institution of criminal proceedings by the defendant; secondly, the determination of proceedings in favour of the plaintiff, if from their nature they were capable of so terminating; thirdly, absence of reasonable and probable cause; fourthly, malice or a primary purpose other than that of carrying the law into effect; and, fifthly, damage suffered by the plaintiff.

11. The High Court in A v State of New South Wales (2007) 230 CLR 500; [2007] HCA 10 at [1] described the elements somewhat differently and did so in the following terms. The High Court said:

“For a plaintiff to succeed in an action for damages for malicious prosecution the plaintiff must be establish:

1.    that proceedings of the kind to which the tort applies (generally, as in this case, criminal proceedings) were initiated against the plaintiff by a defendant;

2.    that the proceedings terminated in favour of the plaintiff;

3.    that the defendant, in initiating or maintaining the proceedings acted maliciously; and

4.    that the defendant acted without reasonable and probable cause.”

12. The High Court went on to deal with the situation where the prosecutor has no personal knowledge of the facts underlying the charge, but acts on information, in which case the plaintiff is required to prove that the prosecutor did not honestly form the view that there was a proper case for prosecution or must prove that the prosecution formed that view on an insufficient basis. That too derives from A v State of New South Wales and I am referring in particular to [118] thereof.

13. The difference between the elements recited by the High Court in A v State of New South Wales and that by Fleming, to which I have earlier referred, rests upon two substantial aspects. First, the High Court contemplates proceedings other than the criminal proceedings giving rise to an action for damages for malicious prosecution. That, of course, has no relevance to the current proceedings. Secondly, the High Court does not have an element that requires proof of damage. On the authorities, in my view, seemingly supported by that statement of the elements by the High Court in A v State of New South Wales, proof of damage may be an element of collateral abuse of process but not malicious prosecution, where damage is presumed.

14. In the case of collateral abuse of process, the High Court in Williams v Spautz (1992) 174 CLR 509; [1992] HCA 34 summarised the factors required by a plaintiff for collateral abuse of process as involving:

1. The requirement that the party who has instituted the impugned proceedings has done so for a purpose, or to effect an object, beyond that which the legal process offers;

2. The purpose of the party instituting the impugned proceedings is of crucial importance;

3. The abusive purpose of the impugned proceedings must be the predominant or effective purpose, and

4. The onus of proof on a plaintiff in order to succeed on a claim of collateral abuse is a heavy one.

15. It is unnecessary to deal with the foregoing any further, save to note that, for a collateral abuse of process, it is not necessary for the plaintiff in the consequential proceedings for collateral abuse of process to prove that the proceedings were determined favourably to the plaintiff.

16. I turn then to the factual circumstances before the Court here. There are seven separate, for one of a better term, proceedings on which the plaintiff relies in relation to the cause of action. In relation to one of them, which is the most substantive issue, the plaintiff commenced proceedings, and/or maintained the proceedings, at a point in time when charges had been laid for what I will call the substantive criminal offence. Those charges ultimately concluded with a conviction and the imposition of a sentence.

17. That conviction and sentence is the subject of a Notice of Intention for Leave to Appeal to the Court of Criminal Appeal filed on 31 July 2019. As a consequence, at least, in relation to the cause of action associated with malicious prosecution on those particular facts associated with these criminal charges, the currently conceded facts are against the existence of a tort associated with the malicious prosecution.

18. It is possible, although most unlikely, for the plaintiff to have success on malicious prosecution against the first defendant in relation to the other proceedings. I say that because the first defendant is the State of New South Wales and acting in its capacity representing the police officers and, therefore, acting on information.

19. Nevertheless the situation is this: proceedings were commenced and/or maintained at a point in time where the plaintiff was aware that there were charges pending against the plaintiff in relation to proceedings. Those charges were ultimately proved to the criminal standard. The question of appeal to the Court of Criminal Appeal is pending. As a consequence any cause of action that relies upon the malicious prosecution or is based upon malicious prosecution in relation to that set of circumstances is fundamentally flawed and ultimately premature.

20. The plaintiff says, correctly, that the success of the other facts or circumstances which give rise, he says, to the causes of action, will depend as a matter of practicality, and certainly in relation to the level of damages, on that which may occur in relation to the conviction and sentence that have been imposed. That may well be true. Nevertheless, there are causes of action that currently persist in relation to those other matters. There is no cause of action that exists in relation to the charge in which the plaintiff has been found guilty.

21. The common law prior to statutory amendment, or amendment by-law, did not allow for the amendment of proceedings to bring a cause of action that had not arisen at the time of the filing of the pleadings. So much is trite.

22. That proposition was overcome, by the legislature, by the promulgation of s 64(3) of the Civil Procedure Act2005 (NSW). Thus, pleadings nowadays can be amended in such a way as to raise a cause of action that had not arisen at the time of the initial filing of the Statement of Claim. There are still some issues associated with when the pleading takes effect but they are irrelevant for present purposes.

23. I am aware of no legislative promulgation which would allow the filing of a pleading or initiating process commencing an action that has not yet arisen. Even a retrospective amendment, as I call it loosely, must be taken at a point in time when the cause of action has in fact arisen. It cannot be taken at a point in time before the cause of action arises.

24. Having said that, it seems abundantly clear that the plaintiff has taken these proceedings prematurely. The plaintiff is not stopped from taking subsequent proceedings, if they were so minded, in relation not only to the facts arising from the proceedings of the subject of appeal in the Court of Criminal Appeal or Application for Leave to Appeal, but also in relation to the other matters.

25. The plaintiff in his outline of submissions seeks orders in or to the following effect. As against the first defendant, being the State of New South Wales, the plaintiff be granted leave to amend and that these proceedings be stayed pending the outcome or determination of the plaintiff’s appeal with respect to the matters for which he was convicted.

26. The second order that the plaintiff seeks is, as against the second defendant, that the proceedings be dismissed with costs, on the proviso that the plaintiff is granted leave to bring an appropriate application and that proceedings be reinstated in the event that the plaintiff’s appeal succeeds.

27. Thirdly, the plaintiff seeks that the proceedings stand over to a suitable date following the filing of an appeal; the plaintiff pay both of the defendants costs of the application. The above orders are proffered on the basis that the defendants are disinclined to accede to a stay.

28. In exercising the discretion of the Court, the primary object of the Civil Procedure Act and the Rules made thereunder, and one of the factors that is a required factor to be taken into account in exercising such a discretion, is that which is stated in s 56 of the Civil Procedure Act and following. That requires the Court, the parties and the legal practitioners representing the parties to facilitate the just, quick and cheap resolution of the real issues in the proceedings. The conduct of these proceedings and the making of orders of the kind sought by the plaintiff at paragraph 9 of the plaintiff’s outline of submissions are the antithesis of the achievement of those objects.

29. The plaintiff raises two fundamental issues associated with the course that I proposed during submissions, namely, the dismissal of proceedings. The first is that the plaintiff would be required to pay the costs forthwith or at least prior to the filing of any further Statement of Claim and, secondly, that the plaintiff would be required to obtain leave of the Court.

30. As to the first point, I do not see that the plaintiff is in a subsequently different position vis-à-vis the dismissal of the proceedings with a proviso that they can be reinstated in relation to the second defendant and the dismissal of the proceedings simpliciter. In any event, the plaintiff would be required to pay the second defendant’s costs.

31. There is much authority, albeit within the discretion of the Court, that a party cannot come before the Court and seek to utilise the resources of the Court against another party in circumstances where that initiating party is in breach of another order of the Court in relation to that same party. I do not have the reference but it dates back to a judgment in the Probate Division of the House of Lords in Hadkinson v Hadkinson [1952] P 285; (1952) 2 All ER 567.

32. As to the question of the necessity for leave, it seems to me that the Court is required to balance the interests of the plaintiff and of the defendants and to do so in a manner which considers the primary objective and facilitates the administration of justice. At the moment we have had 16 or so iterations of a Statement of Claim, none of which are in good form and upon none of which any party wants to proceed. The notion that the Court would be required to grant leave for the filing of a further Amended Statement of Claim seems to me to be a matter of common sense, if not necessity, in those circumstances.

33. Assuming, for present purposes, that the leave to appeal were granted and the appeal allowed and the conviction quashed in relation to the most material issue between the parties that is said to give rise to the malicious prosecution, the current iteration does not seek to agitate that proceedings and that factual circumstances and could not. As earlier explained, that cause of action is not capable of being processed at the moment, because there is simply no result which is favourable to the plaintiff. In those circumstances, it is most unlikely if leave were necessary, and I am not currently convinced that it would be, but if leave were necessary, to file an Amended Statement of Claim in relation to that matter, that leave would be refused.

34. Further, if leave were necessary and granted in relation to that matter, it may well be, given the circumstances of this dismissal, that leave would be granted in relation to the other matters, but that is a matter for the Court when and if an Amended Statement of Claim in proper form is filed and sought to be pursued. At the moment, we have a Statement of Claim that is not in proper form; a proposed Amended Statement of Claim that is not sought to be pursued; and a delay of over four years

35. It is not said that the plaintiff would be out of time by the time the Court of Criminal Appeal dealt with the substantive proceeding, to which I have referred earlier in these reasons. In those circumstances, the most expeditious way of dealing with the matter, and the most just way of dealing with the matter, is to strike out the Statement of Claim and the proceedings and allow the plaintiff to deal with the matter in accordance with the Rules, if and when the plaintiff so desires.

36. The issue of costs has arisen. The plaintiff will pay the first defendant’s costs of and incidental to the proceedings on the ordinary basis. The second defendant seeks costs on an indemnity basis. That proposal is not opposed in circumstances where the Court was not minded to make the orders sought by the plaintiff in par 9 of the plaintiff’s submissions.

37. In those circumstances the Court makes the following orders:

1. The Statement of Claim be struck out;

2. The proceedings be dismissed.

3. The plaintiff pay the first defendant’s costs of and incidental to the proceedings on the ordinary basis.

4. The plaintiff pay the second defendant’s costs of and incidental to the proceedings on an indemnity basis.

5. Any party seeking to amend any aspect of the cost order, other than an aspect made by consent, may do so within fourteen days by contacting my Associate directly.

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Amendments

21 October 2019 - Case title amended - Second Judgment

Decision last updated: 21 October 2019