Roddan v Walker - [2000] WASC 25

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: RODDAN -v- WALKER & ANOR [2000] WASC 25

CORAM: MASTER SANDERSON

HEARD: 15 DECEMBER 1999

DELIVERED : 11 FEBRUARY 2000

FILE NO/S: CIV 1869 of 1999

BETWEEN: LINDSAY GORDON RODDAN
Plaintiff
AND
MICHAEL JOHN WALKER
First Defendant
DOMINIC ANTHONY STALTARI
Second Defendant

Catchwords:

Practice and procedure - Application for leave to file a substituted statement of claim - Turns on its own facts

Legislation:

Limitation Act 1935, s 38, s 39

Result:

Leave refused

Representation:

Counsel:

Plaintiff:     In person
First Defendant             :     Mr T Darbyshire
Second Defendant         :     Mr T Darbyshire

Solicitors:

Plaintiff:     In person
First Defendant             :     Kott Gunning
Second Defendant         :     Kott Gunning

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

Cabassi v Vila (1940) 64 CLR 130

Case(s) also cited:

Commonwealth Dairy Produce Equalisation Community Ltd v McCabe (1938) 38 SR (NSW) 397
Commonwealth Life Assurance Society Limited v Brain (1935) 53 CLR 343
Hooker Corp Limited v Commonwealth (1996) 65 ACTR 32
Nationwide News Pty Ltd v Wiese (1990) 4 WAR 263
Raleigh v Goschen [1898] 1 Ch 73
Water Authority of Western Australia v AIL Holdings Pty Ltd (No 2) (1992) 10 WAR 233

MASTER SANDERSON: These are pleading summonses. Each is in identical terms. There have been a number of appearances and various orders made on those appearances. Before dealing with this particular application I should say something of the history of the action to date.
The action was commenced by a writ dated 6 August 1999. A statement of claim was endorsed on the writ. On 2 September 1999 the defendants each filed a chamber summons seeking to strike out the statement of claim. On 25 October 1999 the plaintiff filed an amended statement of claim. On 26 October 1999 I struck out the amended statement of claim and gave the plaintiff 21 days in which to file and serve a further amended statement of claim. The matter came back on for hearing on 23 November 1999 and no further amended statement of claim had been filed. The time for filing and serving the substituted statement of claim was extended by 14 days. On 9 December 1999 the plaintiff lodged a minute of proposed substituted statement of claim. The defendants object to the statement of claim in its present form. They also say that the statement of claim discloses no cause of action and that the action against both defendants should be dismissed.
The minute of proposed substituted statement of claim (which for convenience sake I will refer to as "the minute") runs to 112 paragraphs and 31 pages. So far as I can ascertain from reading the document it seeks to plead the following causes of action:
1.False imprisonment
2.Trespass to person
3.Intimidation
4.Assault and Battery
5.Malicious prosecution
6.Malicious falsehood
7.Trespass to goods
8.Conspiracy to injure by unlawful means
9.Negligence
10.Misfeasance in public office
In par 25, par 42, par 43 and par 54 of the minute the plaintiff claims for assault and false imprisonment. The material facts as pleaded can be summarised in the following way. The defendants are police officers in the West Australian Police Service. On 8 July 1993 the defendants approached the plaintiff who was sitting in his vehicle at a service station. A discussion ensued. It is not entirely clear whether the plaintiff alleges that he was arrested or not. Be that as it may, the defendants searched the plaintiff's motor vehicle and removed a firearm from the glovebox. The plaintiff was then taken to a police station by the defendants and was questioned about certain offences. Various search warrants were executed at properties belonging to the plaintiff. One of these properties was located in Gnangara. It is alleged by the plaintiff that the defendants forced him to accompany them while the search warrant was executed at the Gnangara property and during the course of the search he was assaulted.
The plaintiff alleges that he was then returned to the police station and further questioned. The thrust of the pleading is that the plaintiff, at all times, was held against his will. The plaintiff further alleges that during the course of the second period he was held at the police station he was further assaulted. The plaintiff pleads that about 10.30 pm on 8 July 1993 he was conveyed to the East Perth Lockup, was charged and released on bail.
The defendants do not object so much as to the form of the minute, but rather as to the nature of the claims pleaded. The minute provides a running narrative of the events which it is alleged by the plaintiff occurred on 8 July 1993. Much of the pleading is evidence. The rules of pleading, strictly enforced, would require much of the document to be struck out. But that issue can be put to one side. The defendants say that any claim the plaintiff might have either for assault or false imprisonment is statute barred. In making this submission they rely on s 38(1)(b) of the Limitation Act 1935. Under that section the limitation period for assault or false imprisonment is four years. In other words the limitation period, the defendants say, expired on 8 July 1997. As the writ was not issued until 6 August 1999 time has long since expired and the action cannot succeed.
In response, the plaintiff relies on s 39 of the Limitation Act. That section is in the following terms:
"39. No person entitled to any action with respect to which the period of limitation within which the same may be brought, is fixed by section thirty‑eight of this Act, shall be entitled to any time within which to commence such action beyond the period so fixed, by reason only of such person being beyond the seas at the time such cause of action accrued; or in the cases in which imprisonment was a disability by reason of such person being imprisoned at the time when the cause of action accrued."
The plaintiff alleges, and the defendants do not dispute, that he was in custody between 10 August 1993 and 20 May 1997. As I understand the plaintiff's submission he says that, pursuant to s 39, the time he was imprisoned is not to be counted for the purposes of s 38 and therefore the time limited for his bringing the action has not expired.
With respect to the plaintiff, in my view s 39 has precisely the opposite effect to that suggested by the plaintiff. The clear input of s 39 is that the imprisonment of the plaintiff has no effect on the time running. The appropriate time period is four years. That time period has passed. No action for assault or false imprisonment as pleaded in the minute can succeed. That aspect of the claim must be dismissed.
In par 49 of the minute the plaintiff refers to three complaints sworn against him by the first defendant. He claims that the initiation and prosecuting of these claims was actuated by malice. He further pleads that on 15 July 1999 the Acting Director of Public Prosecutions entered a nolle prosequi in relation to the three receiving charges. It is these facts which are said to give rise to a claim for malicious prosecution.
The defendants raise two matters in relation to this plea. First, they say that the nolle prosequi does not constitute a favourable termination of the criminal proceedings for the purposes of the tort of malicious prosecution. However, even if it did, the proceedings would not have terminated until 5 October 1999 the date upon which the nolle prosequi was filed in court. The writ in this matter was issued on 6 August 1999 and therefore was issued prior to the date upon which any cause of action arose. The second objection raised is that no mention was made of this cause of action in the original pleading. To my mind this second point is without merit. The statement of claim was endorsed on the writ and what is being amended by this application is the statement of claim. By implication, the writ is amended when the statement of claim is amended.
However, the first complaint made by the defendants has merit. The simple fact is that whether or not a cause of action exists, it had not arisen as at the date of issue of the writ. The earliest date it could have arisen is 5 October 1999. As such, it is not open to the plaintiff to plead malicious prosecution in these proceedings. It would be open to him, should he choose to do so, to raise the claim in fresh proceedings. But so far as these proceedings are concerned the claim for malicious prosecution cannot stand.
By par 72 of the minute the plaintiff pleads a conspiracy to injure by fabrication of evidence. It is well established that no action lies in respect of evidence given by witnesses in the course of judicial proceedings however false and malicious it may be. The position was put by Starke J in Cabassi v Vila (1940) 64 CLR 130 in the following terms (at 141):
" … it does not matter whether the action is framed as an action for defamation or an action analogous to an action for malicious prosecution or for deceit or, as in this instance, for combining or conspiring together for the purposes of injuring another; the rule of law is that no action lies against witnesses in respect of evidence prepared, given, adduced or procured by them in the course of legal proceedings."
On this basis the claim for malicious prosecution based on fabrication of false evidence cannot stand.
The plaintiff makes certain complaints with respect to firearms charges that were brought against him and the defendants' opposition to his bail application. In essence, it is alleged that the defendants' actions were activated by malice. In my view it is doubtful, so far as the bail application is concerned, any action for malicious prosecution could lie. The bail application was made by the plaintiff and it was resisted on certain grounds by the State. Even assuming that it could be said that the resistance was motivated by actions of the defendants, there was no prosecution as such. There was a resistance to an application. In my view, there is no basis at all for saying that such resistance was akin to malicious prosecution. This claim will be struck out.
The plaintiff complains in relation to a number of charges brought against him. One is referred to as "the three receiving charges" (par 49), one is referred to as "the stealing complaint" and another is referred to as "the explosives complaint". The plaintiff pleads that he was convicted in relation to the stealing complaint and in relation to the explosives complaint. Both of these convictions were subsequently quashed on appeal (see par 97 and par 100). In relation to both of these matters it is said that the prosecution was activated by malice. Reference is made to the testimony of various witnesses including the first and second defendants to support this claim. In my view the pleading falls foul of what was said by the High Court in Cabassi v Vila (supra). The way that the claim is pleaded is nothing more than a collateral attack on the evidence that was given by the defendants in the course of judicial proceedings. Such an attack is not permissible and so the pleading must fail.
In relation to the three receiving charges, I have already indicated that the cause of action was not available when this writ was issued. That claim cannot stand.
In relation to the claim for conspiracy, that can stand and is not the subject of criticism by the defendants. However, the form in which the plea is put at present is not proper. The claim must be repleaded. I would also make the point that a conspiracy claim which is nothing more than an attack on the evidence given by the defendants at one or other of the hearings of charges against the plaintiff cannot stand. That would amount to a collateral attack on the evidence given during the course of a hearing and, for reasons which I have set out above, it cannot be permitted.
In the circumstances, I will allow the plaintiff to replead the statement of claim. The repleading must not include matters which I have indicated cannot stand as against the two defendants.
I will hear the parties as to the precise form of the orders and as to costs.