Re State of Western Australia;
[2018] WASC 15
•18 JANUARY 2018
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: RE STATE OF WESTERN AUSTRALIA; EX PARTE K [2018] WASC 15
CORAM: CHANEY J
HEARD: 10 JANUARY 2018
DELIVERED : 18 JANUARY 2018
FILE NO/S: CIV 3172 of 2017
MATTER :In the matter of an application for leave pursuant to O 67 r 5(1) of the Rules of the Supreme Court 1971 (WA) to issue a writ against the State of Western Australia
EX PARTE
K
Applicant
Catchwords:
Practice and procedure - Leave to issue writ - Issue of writ refused by registrar - Whether proposed claim frivolous or abuse of process - Whether claims foredoomed to fail - Turns on own facts
Legislation:
Rules of Supreme Court 1971 (WA), O 67 r 5
Result:
Leave refused
Category: B
Representation:
Counsel:
Applicant: In person
Solicitors:
Applicant: In person
Case(s) referred to in judgment(s):
Jones v Skyring [1992] HCA 39; (1992) 109 ALR 303
Re City of Stirling; Ex parte Tallott [2012] WASC 33
Tame v New South Wales [2002] HCA 35; (2002) 211 CLR 317
Walton v Gardiner [1993] HCA 77; (1993) 177 CLR 378
CHANEY J: In the week leading up to Christmas 2017, the applicant attempted to lodge a writ of summons in which she was the plaintiff and the State of Western Australia was named as the defendant. A registrar refused to file or issue the writ without leave of a judge. The refusal was made pursuant to O 67 r 5(1) of the Rules of the Supreme Court 1971 (WA) on the basis that the writ appeared to be a frivolous proceeding. The applicant now seeks leave of a judge pursuant to O 67 r 5(1) to file and issue the writ.
Because of the need in these reasons to make reference to confidential medical matters concerning the applicant, I consider it appropriate that these reasons be anonymised.
The proposed writ
The writ identifies three proposed causes of action. They are 'malicious prosecution', 'breach of duty of care', and 'defamation of character'. Each cause of action is particularised in the indorsement of claim.
In summary, the malicious prosecution particulars assert that in April 2016, the defendant, represented by the Western Australian Police, charged the applicant with an unspecified complaint. It is asserted that the defendant has continued with the prosecution in circumstances where:
•the applicant has made various representations to the defendant outlining that the allegations are false and without basis;
•the applicant has resided in New South Wales and has no desire, and has made no attempt, to see the alleged victim of the complaint;
•the applicant has provided the defendant with expert medical evidence as to her mental health which, it is contended, warrants a dismissal of the complaint on the basis that there is no public interest in it proceeding;
•the alleged victim of the alleged offence has taken aggressive actions towards the applicant necessitating the applicant's response; and
•the applicant no longer has legal representation as the Legal Aid Commission 'had exhausted there (sic) resources and due to the matters dealt with in the medical reports referred to above, the applicant should not be representing herself'.
It is then asserted that the prosecution is malicious as:
(a)There is no reasonable basis, not probable cause, for the charges of [confidential charge]; and
(b)The defendant has medical evidence, warranting dismissal of other charges based on such evidence; and
(c)The Defendant, is forcing the Plaintiff to defend herself against these malicious claims, without legal representation; and
(d)The prosecution, has been ongoing, since 2016, the Defendant, knowing this matter, and the hearing in April 2018, has already made the Plaintiff unwell, and, making her further unwell; and
(e)The Defendant is aware, suppression orders have been granted in New South Wales to protect the health and safety of the Plaintiff, and, that there is no public interest, in the public knowing the Plaintiff has been unwell, yet, are still proceeding with a public trial.
A duty of care is said to arise by reason of the applicant supplying the police with medical reports as to the effect of the prosecution on the applicant's mental health.
The breach of duty of care is said to consist of the defendant, through the police:
•proceeding with the charge against the applicant notwithstanding that she has provided evidence that the continuation of the charge is 'making her unwell' and that she is at risk of suicide;
•proceeding with the charge despite being aware that the applicant no longer has legal representation;
•failing to acknowledge the distress being caused to the applicant by the prosecution;
•failing to recognise that the applicant is simply trying to get herself well; and
•ignoring suppression orders made by the Supreme Court of New South Wales in relation to proceedings in that court.
In relation to defamation, the writ asserts that the applicant is of good character, that the defendant's allegations in the prosecution are entirely false, that the defendant has refused to retract the claims and that the claims bear a number of defamatory imputations.
The remedy sought in relation to each cause of action is damages, and the writ identifies certain heads of both non‑economic and economic loss said to have been suffered as a result of the three alleged causes of action.
The applicant's affidavit in support
In compliance with O 67 r 5(4) the applicant filed an affidavit in support of her application for leave to issue the writ. The affidavit reads as follows:
1.I require leave to fie (sic) the enclosed Writ of Summons.
2.When filing this Writ with the Registry, I did not provide further information about my condition, due to suppression orders granted by the NSW Supreme Court. I believe, had I done so, the Writ would have been filed.
3.I am in a precarious position, whereby, I have had to fend off, false, and malicious charges, since 2016.
4.Legal Aid had been assisting me, provided all medical reports, as well as lengthy submissions to have the charges dismissed, as there was no public interest in the matter proceeding, with no success.
5.It has not left me, in a position, whereby, I have to defend myself, but, given my medical condition, and nature of these charges, I should not have to.
6.These charges, have and continue, to ruin my life, my career, and are causing me and my family, undue distress.
7.In the interests of justice, it is imperative this writ be filed, as, I have been ambushed and unfairly attacked by the State, for no valid purpose.
8.I need to look after my health, and my career, which has suffered greatly since these charges have been negotiated. It has been two years now, I cannot continue to live in this matter, it is terrible, for my life, my health, my finances, my family, my career.
9.I ask the Court also respect the suppression orders granted by the Court of NSW regarding this matter, to the Western Australian jurisdiction.
I pause to note that the remedy of damages sought in the writ, and therefore the issue of the writ, would have no impact on the continuation of the charge in the Magistrates Court.
Other materials provided by the applicant
Prior to the hearing, the applicant also forwarded to the court a bundle of documents comprising various medical reports, correspondence between the applicant and the police in relation to the prosecution, correspondence between the applicant and the Magistrates Court, and certain other correspondence presumably said to be relevant to the merits of the prosecution case against her. In addition, the applicant provided what I take to be a copy of six selected paragraphs of a decision by Fagan J in the Supreme Court of New South Wales concerning the applicant's capacity to comprehend proceedings, although the context of those observations is not apparent on the materials provided. A handwritten date of 22 August 2017 appears on that document. I have had regard to those documents as though they form part of the applicant's affidavit in support.
Following the hearing, and without leave, the applicant provided further documents generally of the same character as those provided prior to the hearing. I have briefly reviewed those documents, although for reasons which follow, they are not material to the proper disposition of the application for leave.
Disposition
The requirement for leave of a master or judge to issue a writ which appears to a registrar to be an abuse of process or a frivolous or vexatious proceeding reinforces the inherent power of the court to protect itself from unwarranted wastage of time and resources and to avoid the loss caused to those who have to face actions which lack any substance.[1] Proceedings will constitute an abuse of process if they are clearly foredoomed to fail.[2]
[1] Jones v Skyring [1992] HCA 39; (1992) 109 ALR 303, 312; Re City of Stirling; Ex parte Tallott [2012] WASC 33 [7].
[2] Walton v Gardiner [1993] HCA 77; (1993) 177 CLR 378, 393; Tallott [7].
As noted above, the materials supplied by the applicant included what appear to be observations by Fagan J in August 2017 to the effect that the applicant lacked capacity to conduct legal proceedings. It is unclear whether the applicant maintains that that disability continues. If it does, the applicant is not able to institute proceedings in this court other than through a next friend.[3] I assume, however, for the purposes of this application that the applicant does not presently satisfy the definition of a 'person under disability' for the purposes of O 70 r 2.
[3] Rules of the Supreme Court 1971 (WA), O 70 r 2(1).
The elements of a cause of action for malicious prosecution are:
(i)institution of criminal proceedings by the defendant;
(ii)termination of proceedings in favour of the plaintiff;
(iii)absence of reasonable or probable cause for the prosecution;
(iv)malice, or a primary purpose other than that of carrying the law into effect; and
(v)damage suffered by the plaintiff.
The prosecution of the applicant is said in the proposed writ to be set for hearing on 11 April 2018. The outcome of the prosecution will not be known until that time. Clearly the second of the elements of the cause of action cannot, at the present time, be established by the applicant. Furthermore, the matters pleaded as demonstrating malice are no more than factors that might be said to be relevant to the exercise of discretion to continue the prosecution, rather than as demonstrating some ulterior purpose in maintaining the prosecution. The pleaded basis for malice does not support a conclusion that the prosecution is motivated by an improper purpose on the part of the prosecuting officer.
The proposed defendant is the State of Western Australia. The State is liable for tortious wrongdoing by police provided the wrongdoing is without corruption or malice.[4] The State would not appear to be the correct defendant to a complaint of malicious prosecution by a police officer.
[4] Police Act 1892 (WA), s 137(5).
Because of those matters, the pleaded cause of action for malicious prosecution has no prospects of success.
Nor do I consider that the writ, even having regard to the applicant's affidavit and the materials provided to the court in support of the application, is capable of establishing a relevant duty of care on the part of the police to the applicant. I do not consider it arguable that the mere fact a prosecuting authority is aware that the continuation of a prosecution is causing stress and distress to, and even adversely affecting the mental health of, the subject of the prosecution gives rise to a duty of care in tort to avoid that harm by discontinuing the prosecution.[5]
[5] See Tame v New South Wales [2002] HCA 35; (2002) 211 CLR 317 [26] ‑ [27] (Gleeson CJ), [57] (Gaudron J), [126] (McHugh J), [231] (Gummow and Kirby JJ), [298] ‑ [299] (Hayne J).
In the course of oral submissions made on the application, the applicant suggested that her principal complaint in relation to defamation concerned assertions made by the alleged victim of the alleged offence rather than the police. That person is not, of course, nominated as a defendant to the writ. So far as the police are concerned, any defamatory imputations arising from the fact of a prosecution being instituted and allegations being made in the context of the hearing of that prosecution are subject to absolute privilege.[6]
[6] Defamation Act 2005 (WA), s 27.
The claim of defamation in the writ, being against the State, is foredoomed to fail.
In my view, none of the proposed causes of action is arguable. In those circumstances, leave to issue the writ is refused.
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