Richards v Hadden

[2009] VSC 611

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

PRACTICE COURT

No. 9840 of 2008

JASON RICHARDS	Plaintiff
v
SENIOR CONSTABLE ANDREW HADDEN and Ors	Defendants

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JUDGE:	OSBORN J
WHERE HELD:	Melbourne
DATE OF HEARING:	14 December 2009
DATE OF JUDGMENT:	14 December 2009
CASE MAY BE CITED AS:	Richards v Hadden
MEDIUM NEUTRAL CITATION:	[2009] VSC 611

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CIVIL – Summary judgment not applicable to claims for false imprisonment -  Summary judgment not applicable as resolution of the dispute involves question of fact and degree – Defence raised involves defendant’s state of mind - Defence does not fail to disclose an answer to the claim and is not scandalous, frivolous or vexatious – Appeal dismissed - Police Regulation Act 1958 s 123(1) - Supreme Court (General Civil Procedure) Rules 2005 rr 22, 23

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	In person
For the Defendant	Ms L Ponderly	Russell Kennedy

HIS HONOUR:

1. In this proceeding the plaintiff sues for damages in respect of alleged assaults and false imprisonment by a police officer at Newport Police Station on Thursday 30 October 2008. 

1. The plaintiff has sought summary judgment in respect of his claim pursuant to rr 22 and 23 of Chapter 1 of the Supreme Court (General Civil Procedure) Rules 2005.  The plaintiff's application was refused by Associate Justice Mukhtar on 18 September 2009 and he now appeals to a single judge of this court. 

1. There are, I think, a series of reasons why, ultimately, the application for summary judgment should be refused although I accept that Mr Richards has brought it in an honest belief as to the justice of his case.

1. First, sub‑r 22(2) does not permit application for summary judgment with respect to claims for false imprisonment.  It is true that sub‑r 22(3) does not preclude application in respect of other aspects of the plaintiff's claim, but Mr Richards' pleading discloses that the assault and other claims are substantially bound up with the false imprisonment claim and there are, to my mind, very real difficulties in sensibly severing the claims.

1. Next, and perhaps more fundamentally, there is an underlying factual dispute in relation to the basis of Mr Richards' claim.  The first defendant's account is evidenced in a sworn police statement.  The matters in issue are also the subject of contested Magistrates' Court proceedings listed for hearing on 27 January 2010. 

1. Mr Richards maintains the critical facts must be resolved in his favour by reference to closed circuit television footage.  But ultimately, if his claim in this Court proceeds to trial, the question of what happened will fall to be determined on the evidence as a whole, including the evidence not only of the parties, but potentially of other witnesses supplemented, of course, by matters such as the CCTV footage. 

1. I should add that the resolution of what happened may, in my judgment, involve decisions involving issues of fact and degree and those matters are quintessentially matters for resolution upon the hearing of the whole of the evidence.

1. This brings me to the third difficulty with the plaintiff's claim. The first defendant has pleaded a defence pursuant to s 123(1) of the Police Regulation Act which raises issues whether the first defendant acted reasonably or necessarily and in the course of his duties.  There is thus a further level of dispute between the parties, not only as to what actually occurred but as to the first defendant's state of mind. 

1. This further dispute is potentially dispositive of the proceeding, in other words, even if the plaintiff is successful in respect of his version of what occurred, nevertheless, the first defendant may succeed in satisfying the court that he acted reasonably in the course of his duties.

1. The first defendant's police statement runs to some seven pages and contains a relatively detailed circumstantial account of what occurred, from his point of view.  It seems to me that it cannot be said that the dispute is other than one which requires a full hearing in order to determine the facts, once the first defendant's state of mind is put in issue.

1. Insofar as the claim for summary judgment is made pursuant to r 23, it seems to me that that claim must fail on its face. This is not a case where the defence itself fails to disclose an answer to the claim or is scandalous, frivolous or vexatious. It is rather a case where the defence joins issue with the statement of claim and does so in proper form. The real issue between the parties is one of fact. As I have said, that issue is two‑fold. Firstly, there is an issue as to what actually occurred and secondly, there is an issue as to the first defendant's state of mind.

1. When the matter is looked at in the broad, in my view, the Associate Justice was correct in holding that this was not an appropriate matter for summary judgment. Ultimately, the court's power pursuant to both rr 22 and 23 is discretionary and it is appropriate for the court to form an overall view as to whether the matter is one appropriate for summary judgment. In my view this is not such a matter and accordingly the appeal will be dismissed.

1. I propose to order that the plaintiff pays the cost of the appeal but to stay payment of those costs for 90 days.