Ritson v Myers

[2012] NSWSC 1504

Supreme Court

New South Wales

Medium Neutral Citation:

Ritson v Myers [2012] NSWSC 1504

Hearing dates:

13 July 2012

Decision date:

03 September 2012

Jurisdiction:

Common Law

Before:

Latham J

Decision:

1. The appeal is dismissed

2. The plaintiff is to pay the defendant's costs

Catchwords:

STATUTORY INTERPRETATION - Crimes Act 1900, s 556(2) - whether defendant a person against whom civil proceedings had been taken - whether criminal proceedings "for the same cause" as civil proceedings - discretionary disposition of appeal under Crimes (Appeal and Review) Act 2001, s 59(2)

Legislation Cited:

Crimes (Appeal and Review) Act 2001
Law Reform (Vicarious Liability) Act 1983
Interpretation Act 1987

Cases Cited:

Knezevic v Markovic [1985] 5 FCR 219; (1985) 56 ALR 557
Read v Brown (1888) 22 QBD 128
State of New South Wales v Ibbett [2006] HCA 57; (2006) 229 CLR 638
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 153 ALR 490

Category:

Principal judgment

Parties:

Brendan Paul Ritson - (Plaintiff)
Karen Grace Myers - (Defendant)

Representation:

Counsel:
WG Roser SC - (Plaintiff)
M Thangaraj SC / B Haverfield - (Defendant)
Solicitors:
Mitchell Lawyers - (Plaintiff)
Oates Legal - (Defendant)

File Number(s):

2011/356598

Judgment

1. The Plaintiff, Mr Ritson, appeals against the decision of Magistrate Wynhausen of 7 October 2011 pursuant to s 56(1) of the Crimes (Appeal and Review) Act 2001. He seeks the setting aside of the decision dismissing proceedings against the defendant, Ms Myers, and that the matter be remitted back to the Local Court.

Background

1. The proceedings arose out of an incident that occurred at the Surry Hills Police Station in Sydney on 19 July 2006 between Mr Ritson, then a police constable, and Ms Myers, then a police inspector. On 3 October 2008, Mr Ritson commenced civil proceedings in the District Court of NSW against the State of New South Wales pursuant to s 9B(2) of the Law Reform (Vicarious Liability) Act 1983. Under s 6 of the Law Reform (Vicarious Liability) Act, Ms Myers was deemed to be a person in the service of the Crown as a police officer and was therefore precluded from being joined as a party to the proceedings.

1. In the civil proceedings, Christie ADCJ found that Ms Myers had thrown a pizza box in the direction of Mr Ritson constituting the tortious act of assault. Judgment was entered in favour of Mr Ritson and he was awarded the sum of $2050 comprising compensatory, aggravated, and exemplary damages.

1. On 21 March 2011, Mr Ritson brought a private prosecution in the Local Court of New South Wales against Ms Myers under s 60(1) of the Crimes Act 1900 for assault police officer in execution of his duty. Later, Mr Ritson laid an additional charge under s 61 of the Crimes Act. Ms Myers filed a notice of motion in the criminal division of the Local Court seeking that the proceedings be dismissed for want of jurisdiction. She also called in aid s 556(2) of the Crimes Act in support of the prayer that she be released from all criminal proceedings arising out of the incident on 19 July 2006.

1. In order to determine whether s 556 barred Mr Ritson from bringing criminal proceedings against Ms Myers, Magistrate Wynhausen considered the meaning of the term 'cause of action'. Her Honour turned to the Osborn Dictionary and Knezevic v Markovic [1985] 5 FCR 219; (1985) 56 ALR 557 - in which the court gives a detailed synopsis of the provision -to inform the finding that the July 2006 incident gave rise to the same cause of action in the criminal and civil proceedings.

1. The court then turned to consider the plaintiff's submissions in relation to the meaning of 'person'. It was contended that the precondition requiring the same 'person' to be the subject of the civil and criminal proceedings was not met. This was asserted on the basis that the civil proceedings were initiated against the State of NSW, whilst the criminal proceedings were initiated against Ms Myers. The court was satisfied that due to the inclusive definition of 'person' in the Crimes Act and the fact that the Law Reform (Vicarious Liability) Act precluded Ms Myers being joined as a party to the civil proceedings, Ms Myers was the same 'person' for the purposes of s 556(2).

1. Accordingly, the court found Ms Myers was entitled to rely upon the bar to further proceedings provided by s 556(2) and was released from all criminal proceedings relating to the incident at Surry Hills Police Station. The court dismissed the prosecution case.

1. Mr Ritson appealed to this Court on the basis that her Honour Magistrate Wynhausen erred in law on several grounds. These grounds can be broadly summarised as follows. First, that Magistrate Wynhausen erred in law in holding that the prosecution of the defendant was barred pursuant to s 556(2) of the Crimes Act, in that the defendant stood in the position of a party to the civil proceedings by the operation of the Law Reform (Vicarious Liability) Act and the defendant was therefore a person against whom civil proceedings had been taken. Second, that the magistrate erred in law in holding that the criminal proceedings were 'for the same cause' as the civil proceedings.

The Legislative Framework

1. Section 10 of Law Reform (Vicarious Liability) Act states:

10 Effect of statutory exemptions

(1) In this section:

person includes the Crown.

statutory exemption means a provision made by or under an Act which excludes or limits the liability of a person.

For the purposes of determining whether or not a person is vicariously liable in respect of a tort committed by another person, any statutory exemption conferred on that other person is to be disregarded.

Except as provided by this section, nothing in this Act affects a statutory exemption conferred on a person.

1. Section 556 (2) provides:

556 Summary conviction a bar to further proceedings

[...]

(2) Any person against whom civil proceedings have been taken in respect of any act or thing done or omitted to be done by him or her which is an offence of which he or she might have been convicted summarily without consent under this Act shall be released from all criminal proceedings for the same cause on the information of the person by whom the civil proceedings were taken.

1. The legislative history of this provision was carefully traced in Knezevic v Markovic. Consideration was given to whether s 556 should be construed as a bar to civil and criminal proceedings that arise from the same cause. Similarly to the current proceedings, the proceedings in Knezevic v Markovic arose out an assault. However in that case, the appellant was convicted of assault and served a term of imprisonment. The civil proceedings were commenced following the outcome of the criminal proceedings.

1. A forerunner of the provision appeared in early statutes of the Imperial Parliament. The Act 9 Geo IV No 1 (NSW) applied these statutes in NSW. They included provisions whereby a person who had paid a penalty, whether a term of imprisonment or monies owed, was released from all further proceedings or other proceedings for the same cause: Knezevic v Markovic at 9 - 20. In Knezevic v Markovic, the court concluded that the inclusion of the words 'for the same cause' was 'more likely to have been due to a desire on the part of the legislature to remove any doubt as to the extent of the bar': Knezevic v Markovic at 20. From its early beginnings, the bar was adapted and was included in the consolidation of the criminal law at the turn of the century. Notwithstanding some changes to these provisions, the legislative intention was to bar not only criminal but also civil proceedings 'for the same cause'.

1. The court also outlined the purpose of such a bar. Essentially, according to early legislation, for example the Act 9 Geo IV No 1 (NSW), where a party was assaulted they had available two modes of proceeding to punish the offender. In such cases, s 28 of 9 Geo IV prevented the prosecutor from bringing additional actions for the same cause: Knezevic v Markovic at [23]. As the provision evolved into its current form, the purpose remained largely the same:

Section 556 was originally intended...to prevent multiplicity of actions and to put a person aggrieved by an act which is both a crime and a tort at his election to institute either civil or criminal proceedings:

Knezevic v Markovic at [2] per Blackburn J.

1. Section 556 operates to prevent a multiplicity of criminal or civil actions, thereby ensuring a person shall not be liable in any other proceedings 'for the same cause': Knezevic v Markovic at [40].

"For The Same Cause"

1. The plaintiff submits that the criminal proceedings do not arise from the same cause of action as the civil proceedings, on the basis that the cause of action in the District Court had civil foundations with a remedy that was designed to place the plaintiff in the same position as he was before the tort was committed. According to the plaintiff, this is a different and distinct cause to that of the Local Court proceedings, whereby the "remedy" or outcome is to punish the defendant for wrongdoing.

1. The Crimes Act does not define "cause of action". It is therefore appropriate to consider other definitions of the term. In "A Dictionary of Modern Legal Usage", "cause of action" is defined as "a group of operative facts, such as a harmful act, giving rise to one or more legal rights of action": Byran A. Garner, A Dictionary of Modern Legal Usage, 2nd ed, 1995, Oxford University Press, 140.

1. In Read v Brown (1888) 22 QBD 128, the court determined the expression to "...have long been judicially defined as meaning ... the material facts...".

1. The material facts that gave rise to the District Court civil proceedings was the physical act of throwing a pizza box. The material facts that give rise to the prospective prosecution against Ms Myers is the physical act of throwing a pizza box. Accordingly, while the remedies for each action may differ, the proceedings were initiated for the same cause.

The Same Person

1. The plaintiff argued that the precondition, pursuant to s 556(2), that the same "person" be the subject of both the criminal and civil proceedings, was not met. It was submitted that the civil proceedings were pressed against the State of NSW (not a person), and that Ms Myers was a 'mere witness' in those proceedings, whereas the criminal proceedings were initiated against Ms Myers as a defendant in her personal capacity. This argument proceeds on the basis that "person" in s 556(2) must be construed as "party", and that it refers solely to natural persons.

1. At the time of the incident Ms Myers was a sworn member of the New South Wales Police, therefore rendering her an employee of the State. Pursuant to s 8 of the Law Reform (Vicarious Liability) Act the State was vicariously liable for Ms Myers' actions. Further, amendments to the Act in 2003 precluded the plaintiff from joining Ms Myers as a party to the proceedings in accordance with s 9B Law Reform (Vicarious Liability) Act. Section 9B(1) defines a police tort claim. Section 9B(2) reads:

9B How can police tort claims be made?

[...]

(2) Except as provided by this Part, a person may not in any legal proceedings make a police tort claim against the police officer concerned, but may instead make the claim against the Crown.

[...]

1. Clearly, at the time of the civil proceedings, which qualified as a police tort claim, Mr Ritson was restrained from filing a statement of claim against Ms Myers as the defendant. Prior to this amendment, a police officer could be named as the defendant. The High Court considered this provision in State of New South Wales v Ibbett [2006] HCA 57; (2006) 229 CLR 638. At [58] the Court said :

The scheme of s 9B is to require persons in the position of Mrs Ibbett to sue only the State, and to do so instead of making a claim against the police officers.

1. It is apparent that Ms Myers was not a party to the civil proceedings. However, she was the alleged tortfeasor. She was more than a mere witness in the proceedings. The civil proceedings were taken against her in the sense that the pleadings were directed to her allegedly tortious conduct. The State of NSW stood in her shoes as the defendant only by virtue of the operation of statute. The State assumed liability for Ms Myers' acts that would otherwise have been sheeted home to her.

1. The phrase "person against whom civil proceedings have been taken" in s 556(2) of the Crimes Act ought not, in my view, be interpreted as synonymous with "a party to civil proceedings".

1. Nor can "person" in s 556(2) be confined to natural persons. When construing the meaning of any legislation "[t]he primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute.": Project Blue Sky Inc v Australian Broadcasting Authority (1998) 153 ALR 490 at [509]. Section 4 of the Crimes Act provides that "Person, Master, and Employer severally include any society, company, or corporation."

1. The Interpretation Act 1987 also contains an inclusive definition. Section 21 provides: "Person includes an individual, a corporation and a body corporate or politic."

1. It is also relevant to note the terms of s 10 of the Law Reform (Vicarious Liability) Act. "Statutory exemption" means a provision under an Act which excludes or limits the liability of a person. Section 556(2) of the Crimes Act is a provision under an Act which excludes or limits a person's liability for criminal proceedings. Therefore, by the operation of s 10(3) of the Law Reform (Vicarious Liability) Act, the statutory exemption conferred on Ms Myers by s 556(2) of the Crimes Act is preserved.

1. The legislative intention expressed through these provisions, when read together, is that the assumption of vicarious liability by the State of NSW for its servants is not to be taken as destroying the protection that was afforded to those individuals by the operation of a statutory exemption, had the individual been sued in a personal capacity.

1. I am not persuaded that the magistrate erred on any of the bases advanced by the plaintiff.

Judicial Determination of Material Facts

1. This appeal also touches upon the importance of the finality of judicial determinations. At the hearing of the appeal, the plaintiff was asked whether a magistrate hearing the criminal proceedings would be bound by the findings of fact made in the District Court. Counsel for the plaintiff categorically disavowed such a submission. Whist it may be said that the tribunal in a criminal prosecution is bound by a more onerous burden of proof than that in civil proceedings, it nonetheless raises the prospect that the Local Court would be confronted with the prospect of contravening findings of fact that had been made by another, superior court. This undesirable state of affairs no doubt in part underlies the policy behind s 556(2) of the Crimes Act.

Discretionary Powers

1. In any event, s 59(2) of the Crimes (Appeal and Review) Act confers a discretion in this Court to determine an appeal by dismissing, or allowing, the appeal. If the above analysis regarding the application of s 556(2) of the Crimes Act is incorrect, the appeal should be dismissed on the basis that the factual matrix that gave rise to the litigation has already been determined in the District Court of NSW and there is no utility in re-litigating such a trivial matter. The remittal of this matter to the Local Court would in my view be a scandalous waste of scarce court time and resources.

Orders

(1)   The appeal is dismissed.

(2)   The plaintiff is to pay the defendant's costs.

Decision last updated: 10 December 2012