Saffari v State of Western Australia [No 2]
[2023] WASC 46
•21 FEBRUARY 2023
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: SAFFARI -v- STATE OF WESTERN AUSTRALIA [No 2] [2023] WASC 46
CORAM: STRK J
HEARD: 1 DECEMBER 2022
DELIVERED : 21 FEBRUARY 2023
FILE NO/S: CIV 3183 of 2019
BETWEEN: SHAHRIAR SAFFARI
Plaintiff
AND
STATE OF WESTERN AUSTRALIA
Second Defendant
CHRIS DAWSON
Third Defendant
DANIEL TALBOT
Fourth Defendant
MAHER FLEYFEL
Fifth Defendant
ANDREW MACKAY
Sixth Defendant
Catchwords:
Practice and procedure - Applications to remove the third defendant and the fifth defendant as parties to the proceeding pursuant to the Rules of the Supreme Court 1971 (WA) O 18 r 6(2)(a) - Application to strike out pleading in its entirety as it relates to the fifth defendant pursuant to the Rules of the Supreme Court 1971 (WA) O 20 r 19(1)
Legislation:
Police Act 1892 (WA)
Rules of the Supreme Court 1971 (WA)
Result:
Application of the third defendant granted
Application of the fifth defendant granted in part
Representation:
Counsel:
| Plaintiff | : | In Person |
| Second Defendant | : | L W Geddes |
| Third Defendant | : | L W Geddes |
| Fourth Defendant | : | L W Geddes |
| Fifth Defendant | : | C Liu |
| Sixth Defendant | : | No appearance |
Solicitors:
| Plaintiff | : | In Person |
| Second Defendant | : | State Solicitor's Office |
| Third Defendant | : | State Solicitor's Office |
| Fourth Defendant | : | State Solicitor's Office |
| Fifth Defendant | : | Pragma Lawyers |
| Sixth Defendant | : | No appearance |
Cases referred to in decision:
A v New South Wales (2007) 230 CLR 500
Bell v The State of Western Australia [2004] WASCA 205
Board of Fire Commissioners (NSW) v Ardouin [1961] HCA 71; 109 CLR 105
Coco v The Queen (1994) 179 CLR 427
Commonwealth Life Assurance Society Ltd v Brain (1935) 53 CLR 343
Danby v Beardsley (1880) 43 LT 603
Davis v Gell (1924) 35 CLR 275
Evans v London Hospital Medical College [1981] 1 WLR 184
Gregory v Portsmouth City Council [2000] 1AC 419
Johnston v Australia & New Zealand Banking Group Ltd [2006] NSWCA 218
New South Wales v Zreika [2012] NSWCA 37
Noye v Robbins [2007] WASC 98
Noye v Robbins [2010] WASCA 83
Porter v Oamps Ltd [2005] FCA 232
Puntoriero v Water Administration Ministerial Corporation [1999] 199 CLR 575
Saffari v Western Australia Police [2022] WASC 220
Savile v Roberts (1698) 1 Ld Raym. 374
The State of Western Australia v Cunningham [No 3] [2018] WASCA 207
Table of Contents
Introduction
Overview of procedural history and ambit of the applications
Mr Saffari's claims
Parties
Background and allegations
Claims against the State of Western Australia
Claims against the Commissioner of Police
Particulars of Mr Saffari's damage
Claims against Sergeant Talbot
Claims against Mr Fleyfel
The Commissioner of Police's application
The Commissioner of Police's position
Mr Saffari's position
Disposition
Mr Fleyfel's application
Mr Fleyfel's position
Malicious prosecution
The pleaded claim against Mr Fleyfel
Mr Saffari's position
Disposition
Removal as a party
Strike out application
Conclusion and orders
Sch A - Amended chamber summons filed on behalf of the second, third and fourth defendants on 30 November 2022
Sch B - Amended chamber summons filed on behalf of the fifth defendant on 30 November 2022
STRK J:
Introduction
On 1 December 2022, two applications were listed for hearing. In summary, they were applications seeking that the third and fifth defendants be removed as parties to the proceeding. For the reasons set out below, it is appropriate that the application made on behalf of the third defendant be granted, and the application made on behalf of the fifth defendant be granted in part.
Overview of procedural history and ambit of the applications
On 29 December 2019, Mr Shahriar Saffari commenced proceedings by writ of summons indorsed with a statement of claim in which he named six defendants. Appearances were entered on behalf of the first to fifth defendants. The sixth defendant, Mr Andrew MacKay, was not served and has not entered an appearance.
In the course of the proceeding, applications were prosecuted on behalf of the first to fifth defendants seeking, among other things, for their removal as parties to the proceeding pursuant to the Rules of the Supreme Court 1971 (WA) (RSC) O 18 r 6(2)(a), and to strike out the writ of summons and substituted statement of claim in their entirety as they relate to the defendants pursuant to the RSC O 20 r 19(1).
For reasons that were published, I was satisfied that the defendant applicants were entitled to a significant part of the relief then sought: Saffari v Western Australia Police [2022] WASC 220. Among other things, I concluded that it was appropriate that the first defendant, Western Australia Police, be removed as a party to the proceeding; and that the substituted statement of claim be struck out in its entirety, with leave granted to Mr Saffari to replead subject to certain constraints. Mr Saffari was not given leave to re-plead any of the following claims:[1]
(a)the claim against the first defendant, the 'Western Australia Police';
(b)any claim against the third defendant, the Commissioner of Police, on the basis of vicarious liability;
(c)any claim against the third defendant, the Commissioner of Police, that is an action in tort within the scope of the protection from personal liability afforded by s 137(3) of the Police Act 1992 (WA);
(d)any claim against the fourth defendant, Sergeant Talbot, that is an action in tort within the scope of the protection from personal liability afforded by s 137(3) of the Police Act;
(e)any claim for exemplary or punitive damages as against the second defendant, the State of Western Australia, for any liability of the State pursuant to the Police Act s 137(5); and
(f)any claim for exemplary or punitive damages for defamation by operation of s 37 of the Defamation Act 2005 (WA).
[1] Order 12 of the orders made on 15 June 2022.
On 10 August 2022, Mr Saffari filed a further substituted statement of claim. No claim was pleaded as against the previously named first defendant, as 'Western Australia Police' was no longer a party to the action, nor as against the sixth defendant, Mr MacKay, who had not been served.
Shortly thereafter, an application was filed on behalf of the fifth defendant, Mr Fleyfel. By an application made by chamber summons filed on 31 August 2022, Mr Fleyfel among other things again applied to be removed as a party to the proceeding pursuant to the RSC O 18 r 6(2)(a), and to strike out the further substituted statement of claim pursuant to the RSC O 20 r 19(1).
An application was also filed on 31 August 2022 on behalf of the second, third and fourth defendants, seeking, among other things, that the third defendant, the Commissioner of Police (as he was) be removed or cease to be a party to the action pursuant to the RSC O 18 r 6(2)(a); that the indorsement of claim be struck out in its entirety with Mr Saffari to have leave to amend the writ so that the indorsement of claim complies with the RSC O 6 r 1(1) by a date to be fixed; and that certain pleadings in the further substituted statement of claim be struck out pursuant to the RSC O 20 r 19(1).
Various orders were made by the court on 20 September 2022, which included orders programming the applications for hearing at a special appointment on 1 December 2022.
By a communication filed on 12 October 2022, the solicitors for the second, third and fourth defendants advised the court that the parties had been engaged in conferral in relation to the defendants' applications and that Mr Saffari had indicated that he no longer intended to pursue a claim in defamation against the remaining represented defendants. The court was also advised that Mr Saffari intended to further amend his further substituted statement of claim so as to remove the claims in defamation. To allow conferral to be exhausted, the court amended by consent its orders of 20 September 2022 so as to allow additional time for the filing of materials prior to the special appointment.
On 25 October 2022, Mr Saffari filed his amended pleading titled 'amended further substituted statement of claim'. As a consequence of that amendment, particularly by Mr Saffari abandoning his claims in defamation, the second to fifth defendants' complaints narrowed.
On 30 November 2022, an amended chamber summons was filed on behalf of the second, third and fourth defendants, which is reproduced at sch A to these reasons. As was reflected in the amended chamber summons, the primary order sought at the hearing of the second, third and fourth defendants' application was that the third defendant, the Commissioner of Police (as he then was), be removed or cease to be a party to the action pursuant to the RSC O 18 r 6(2)(a).
In support of the application, a minute of proposed orders was filed on behalf of the second, third and fourth defendants, which made plain the ambit of the application, and a written outline of submissions filed on 24 October 2022 was relied upon.
The second, third and fourth defendants' application was opposed by Mr Saffari, who relied upon a written outline of submissions filed on 18 November 2022.
On 30 November 2022, an amended chamber summons was also filed on behalf of the fifth defendant, Mr Fleyfel, which is reproduced at sch B to these reasons. Reflected in the amended chamber summons, the primary relief sought at the hearing of Mr Fleyfel's application was that Mr Fleyfel be removed or cease to be a party to the action pursuant to the RSC O 18 r 6(2)(a); alternatively that Mr Saffari's amended further substituted statement of claim filed on 25 October 2022 be struck out in its entirety pursuant to the RSC O 20 r 19(1).
In support of the application, a minute of proposed orders was filed on behalf of Mr Fleyfel, which made plain the ambit of the application, and a written outline of submissions filed on 24 October 2022 together with a list of authorities filed on 1 December 2022 were relied upon. Counsel appearing for Mr Fleyfel at the hearing of the application also read the affidavits deposed to by Nicholas Francis Malone on 23 April 2021 and on 31 August 2022, which were filed in this proceeding.[2]
[2] ts 50 (1 December 2022).
Mr Fleyfel's application was opposed by Mr Saffari, who relied upon a written outline of submissions filed on 18 November 2022.
Mr Saffari's claims
In Saffari v Western Australia Police at [28] to [43] I summarised Mr Saffari's claims as were then pleaded in a substituted statement of claim, which pleading was struck out in its entirety. On 20 September 2022 Mr Saffari was granted leave to file an amended writ containing an indorsement of claim which complies with the RSC O 6 r 1(1) and (2) by 5 October 2022.
On 5 October 2022 Mr Saffari filed an amended writ with an indorsement of claim in the following terms:
1.The Plaintiff's claim is against the Second Defendant for the Tort of Negligence of the Third Defendant for Providing 'Criminal Record' in Plaintiff's name to the Department of Immigration, the Federal Police and Clayton Utz Law Firm [Administrative Appeals Tribunal, Magistrates Court of Queensland and Federal Magistrates Court] (in 2002, 2005, 2012, 2013, 2017 and 2018) in circumstances where the Charge had not (and has not) been filed with the Court, where there had not (and has not) been any proceedings in a Court and where the Plaintiff had not (and has not) been convicted of a crime by a Court; causing reputational and practical harm and damage to the Plaintiff.
1.1.The Precise, and further, dates will be provided following Discovery.
2.The Plaintiff's claim is against the Second Defendant for the Tort of Negligence of the Third Defendant for providing False 'Criminal Record' to the Department of Immigration, the Federal Police and Clayton Utz Law Firm [Administrative Appeals Tribunal, Magistrates Court of Queensland and Federal Magistrates Court] (in 2002, 2005, 2012, 2013, 2017 and 2018), causing reputational and practical harm and damage to the Plaintiff.
2.1.The Precise, and further, dates will be provided following Discovery.
3.The Plaintiff's claim is for Malicious Prosecution as against the Fourth Defendant for (in 22 March 2002) Charging the Plaintiff with a crime the Plaintiff did not commit without having a shred of evidence or probable cause, but because the Plaintiff is a "Dark Skin Iranian Training for Combat with the Ability to Kill, who should Go Back to I-ran," causing practical harm and damage to the Plaintiff.
4.The Plaintiff's claim is for Malicious Prosecution as against the Fourth Defendant for obtaining a Warrant for Plaintiff's arrest (on 25 March 2002) without a shred of evidence but because the Plaintiff is a "Dark Skin Iranian Training for Combat with the Ability to Kill, who should Go Back to I-ran," and then continuing Prosecution of the Plaintiff while refusing to drop the charge for 16 years (until 12 December 2018); causing practical harm and damage to the Plaintiff.
5.The Plaintiff's claim is for Malicious Prosecution as against the Fourth Defendant for refusing to discontinue Prosecution of the Plaintiff justified through Asserted Facts and Accusations made to the Department of Immigration, the Federal Police and Clayton Utz Law Firm [Administrative Appeals Tribunal, Magistrates Court of Queensland and Federal Magistrates Court] (in 2002, 2005, 2008, 2012, 2013, 2017, 2018) accusing the Plaintiff of crimes the Plaintiff did not commit and portraying the Plaintiff as a dangerous criminal training for combat like terrorists with the ability to kill; causing practical harm and damage to the Plaintiff.
5.1.The Precise dates will be provided following Discovery.
6.The Plaintiff's claim is for Maliciously Fabricated Accusations and Malicious Prosecution as against the Fifth Defendant for (in 2001 and 2018/2019) Accusing the Plaintiff of a crime the Plaintiff did not commit, causing the Plaintiff to be prosecuted for an offence the Plaintiff did not commit, and for pursuing Malicious Prosecution of the Plaintiff by repeating False Accusations in 2018/2019; causing practical harm and damage to the Plaintiff.
6.1.The Precise dates will be provided following Discovery.
The relief identified by Mr Saffari in his indorsement of claim as against the defendants is expressed as follows:
THE PLAINTIFF'S CLAIM IS FOR:
7.The sum of $18,000,000.00 comprising:
8.Damages under:
7.1.Police Act–Sect 137(5)(a) (Against the Second and the Third Defendants)
7.2.Police Act–Sect 138(1)(a) (Against the Fourth Defendant)
7.3.Civil Liability Act Part 5B (Against the Third Defendant)
7.4.Civil Liability Act Part 5C (Against the Third, Fourth and the Fifth Defendants)
7.5.Common Law
Including:
9.General Damages of $180,000.00
10.Exemplary Damages of $180,000.00 (Excluding the Second Defendant)
11.Compensatory Damages of $4,500,000.00
12.Punitive Damages of $13,140,000.00 (Excluding the Second Defendant)
13.Interest pursuant to s 32 of the Supreme Court Act 1935 (WA)
14.Costs
15.Such other orders as the Court thinks fit.
The Plaintiff defers to The Court to apportion the Defendants' liabilities.
In the amended further substituted statement of claim filed on 25 October 2022, Mr Saffari again used headings to provide structure to his pleading. By way of overview I note as follows.
Parties
The first heading was titled 'Parties', and among other things, Mr Saffari pleaded that:
(a) he lived in Perth, Western Australia from June 2000 to May 2001 and worked in a restaurant in Fremantle called Marconi Café (Café) at the same time as the fifth and the sixth defendants, Mr Fleyfel and Mr MacKay;
(b) the second defendant, the State of Western Australia (described in the pleading as the Crown) is the employer of the third defendant, is able to be sued, and is liable for torts committed by the third defendant (Mr Saffari referencing s 137(5)(a) of the Police Act);
(c)the third defendant, the Commissioner of Police (as he then was) is a Crown official and the Crown is liable for a tort done by the third defendant without corruption or malice while performing his function as a member of the police force (Mr Saffari referencing s 137(5)(a) of the Police Act, the Civil Liability Act 2002 (WA) and the common law);
(d)the fourth defendant, described by Mr Saffari as a Western Australia Police Sergeant, is able to be sued, and liable for tort of acts done maliciously while performing his function as a member of the police force (Mr Saffari referencing s 137(1)(a) of the Police Act, the Civil Liability Act and the common law);
(e)the fifth defendant, Mr Fleyfel, is a person able to be sued and worked at the Café throughout Mr Saffari's employment; and
(f)the sixth defendant, Mr MacKay, is a person able to be sued and worked at the Café throughout Mr Saffari's employment.
Background and allegations
The second heading was titled 'Background and Allegations', and among other things, Mr Saffari pleaded that for about eight months he worked at the Café, where Mr Fleyfel was the night shift coffee maker and Mr MacKay was the manager. He pleaded that on or about 19 May 2001 he left Fremantle and moved to Brisbane.[3]
[3] Amended further substituted statement of claim pars 8 and 9.
He pleaded that on 27 September 2001, Sergeant Talbot:[4]
began his prosecution of [Mr Saffari] with a report that on 14 September 2001 [Mr Fleyfel] complained to [Sergeant Talbot] that on 18 May 2001 he was threatened to be killed by [Mr Saffari] and that [Mr Fleyfel] "was a witness to the offence".
[4] Amended further substituted statement of claim par 10.
Mr Saffari noted in his pleading that references to 'reports' and 'accusations' in the pleading were references to Sergeant Talbot's entries 'in his Statement of Material Facts and Police Running Sheets on various dates throughout 16 years'.[5]
[5] Amended further substituted statement of claim par 7.1.
Mr Saffari pleaded that the substance of the allegations as reported by Sergeant Talbot were as follows:
"Three months ago (or four months ago) [Mr Fleyfel] told [Sergeant Talbot] that [Mr MacKay] told [Mr Fleyfel] that [Mr Saffari] told [Mr MacKay] (or someone else) that in three years [Mr Saffari] will come back and kill [Mr MacKay]". (footnotes omitted)
Mr Saffari pleaded that on 22 March 2002, Sergeant Talbot charged Mr Saffari with the offence of 'threatening to kill',[6] which charge was kept in the Western Australia Police Information Release Centre (IRC) and Office of Information Management (OIM) System, as the 'criminal record' of Mr Saffari.[7]
[6] Amended further substituted statement of claim par 12.
[7] Amended further substituted statement of claim par 13.
Mr Saffari pleaded that the IRC and the OIM System are the responsibility of the third defendant in his capacity as the 'Principal Officer of the Western Australia Police Force', with decision-making responsibility of release of information pursuant to the Western Australia Police Governance Policy.[8]
[8] Amended further substituted statement of claim par 14.
At par 15 of his pleading, Mr Saffari further pleaded that on 19 March 2002, Sergeant Talbot in his continued prosecution made a further accusation 'in the Statement of Material Fact' that Mr Saffari had the capacity to carry out his threat to kill. He pleaded that the allegation, in its natural and ordinary meaning, was 'Asserted Fact, False and used as an excuse to charge' Mr Saffari.[9]
[9] Amended further substituted statement of claim pars 15 and 15.1.
In the form of particulars to the 'false accusation' described in par 15 of his pleading, Mr Saffari said that the accusation gave rise to each of the following:
(a)The Plaintiff is dangerous.
(b)The plaintiff is capable of murder.
(c)The Plaintiff intends to harm the Fifth Defendant.
(d)The Plaintiff is capable of harming people.
(e)The plaintiff presents a threat to the Fifth Defendant.
(f)The Plaintiff is a threat to people and is dangerous to them.
Mr Saffari pleaded that on 25 March 2002, Sergeant Talbot issued a warrant for his arrest.[10]
[10] Amended further substituted statement of claim par 16.
Mr Saffari pleaded that 'during that period', he was living in Brisbane unaware of the allegations, the charge or the warrant, and 'during that period' applied for a protection visa.[11]
[11] Amended further substituted statement of claim pars 17 and 17.1.
Mr Saffari pleaded that in November 2005, the Federal Police in carrying out routine background checks for permanent residency applicants, obtained the 'criminal record' of Mr Saffari and contacted Sergeant Talbot; and on 24 November 2005, Sergeant Talbot provided information about Mr Saffari to the Federal Police and contacted the Department of Immigration and Multicultural and Indigenous Affairs (DIMIA).[12]
[12] Amended further substituted statement of claim par 19.
He further pleaded that Sergeant Talbot warned the DIMIA about Mr Saffari, and made entry into his 'Running Sheet' with added information about him, where he repeated the allegations against him and attacked his character.[13] In this regard, Mr Saffari pleaded that Sergeant Talbot reported as follows:[14]
"Saffari recorded as living at (redacted) (Possible false address) Saffari was training as though going into combat".
[13] Amended further substituted statement of claim pars 19 - 20.
[14] Amended further substituted statement of claim par 21.
As to the above, Mr Saffari pleaded that the allegation, in its natural and ordinary meaning was 'Malicious Asserted Fact' and false.[15]
[15] Amended further substituted statement of claim par 21.1.
Mr Saffari pleaded that on 1 December 2005 Sergeant Talbot filed a report that Mr Saffari 'has been refused Residency Visa in Queensland' and that '(Redacted) had no communication with POI [Mr Saffari] since May 2001 and the (Redacted) is not concerned about proceeding with his complaint'.[16]
[16] Amended further substituted statement of claim par 23.
Mr Saffari pleaded that Sergeant Talbot and the Western Australia Police, without being asked, recommended that DIMIA should not approve his visa application.[17]
[17] Amended further substituted statement of claim par 24.
Mr Saffari at pars 25 and 26 of his pleading described the circumstances in which he said he became aware of the charge in late December 2005, and his attempts in 2005 and 2006 to resolve the charge, cooperate with any investigation and first, to obtain information about the nature of the allegations made against him.
He further pleaded that his visa application was refused and then unsuccessfully appealed 'for 5 years citing the Charge, the Warrant and the Fourth Defendant's intervention; until, as per the legal finding by the Federal Court on 06 December 2007, Visa was approved on 02 April 2008'.[18]
[18] Amended further substituted statement of claim par 27.
Among other things, he pleaded that he spoke with Sergeant Talbot (the date of that call was not pleaded), and in response to Mr Saffari's query 'about the allegations and any evidence', Sergeant Talbot angrily told Mr Saffari that he 'should go back to I-ran', pleading that the statement was 'Racist, Discriminatory and Malicious'.[19]
[19] Amended further substituted statement of claim pars 31 and 31.1.
At pars 32 and 33 of his pleading, Mr Saffari further pleaded to the attempts he made in 2008 and 2009 to obtain information about the nature of the allegations that had been made against him. Among other things, he pleads that Western Australia Police insisted that he 'should attend a WA Police station, show an ID and the Police would deal with the Charge and that would be the best way for the Plaintiff to obtain information';[20] and at that time while he knew of the charge, he was unaware that there was a warrant for his arrest.[21]
[20] Amended further substituted statement of claim par 32.2.
[21] Amended further substituted statement of claim par 33.3.
At par 34 Mr Saffari pleaded that he applied for citizenship on 8 June 2011, which was refused on 6 December 2013; and that he was deemed 'not of good character' based on information provided by the Western Australia Police.
At pars 36 to 38, Mr Saffari described the circumstances in which Mr Fleyfel came to make a statutory declaration on 24 June 2014. He pleaded that despite attaching a copy of the statutory declaration to his second application for citizenship, the application was refused in 2018 on character grounds, by reference to the charge and the warrant,[22] and pleads that he was deemed to be 'not of good character' and without 'enduring moral qualities'.[23]
[22] Amended further substituted statement of claim pars 39 - 41.
[23] Amended further substituted statement of claim par 41.1.
At pars 42 to 48 Mr Saffari described further attempts he said were made to have the charge against him discontinued and the warrant for his arrest cancelled, and the response he received from among others, Sergeant Talbot. He further pleaded that on 14 November 2018, the charge was discontinued and on 12 December 2018, the warrant was cancelled.[24]
Claims against the State of Western Australia
[24] Amended further substituted statement of claim pars 49 and 50.
The third heading was titled 'Second Defendant's Liabilities', and as against the State of Western Australia, Mr Saffari pleaded that it is liable for a tort that resulted from the third defendant's negligence while performing his function as the Commissioner of Police, whether or not under a written or other law.[25] By way of a footnote to this plea, Mr Saffari referenced s 137(5)(a) of the Police Act, which provides as follows:
(5) The Crown is liable for a tort that results from —
(a) anything done by a member of the Police Force, without corruption or malice, while performing or purporting to perform the functions of a member of the Police Force, whether or not under a written or other law;
(b) anything done by a person, without corruption or malice, in assisting a member of the Police Force who is performing or purporting to perform the functions of a member of the Police Force, whether or not under a written or other law.
[25] Amended further substituted statement of claim par 51.
Mr Saffari's plea as against the State of Western Australia was not further developed under the third heading, by reference to the facts pleaded (which are summarised above), or otherwise.
Claims against the Commissioner of Police
Mr Saffari pleaded that:[26]
52.The Third Defendant, as the Principal Officer of the WA Police Force with the decision-making responsibility of release of information, knew or ought to reasonably have known the significance of accuracy of information that are held at the WA Police IRC and OIM System containing criminal records and the consequences of their inaccuracy.
[26] Amended further substituted statement of claim par 52.
Mr Saffari pleaded that a duty of care was owed by the Commissioner of Police to him in the following way:
53.The harm suffered by the Plaintiff in being refused permanent residency and citizenship and the Plaintiff's inability to protect himself from the Third Defendant's negligent misstatement imposed a Duty and Duty of Care.
54.In provisions of the Duty to voluntarily provide accurate 'Criminal Record' of the Plaintiff for a fee payable to the Commissioner of the Police, reasonable care should have been taken to convey accurate information of the Plaintiff's 'Criminal Record' which in the Plaintiff's case should have been 'No Criminal Record'. (footnotes omitted)
Mr Saffari further pleaded as follows:
55.In 2013, the Plaintiff was refused citizenship by DIMIA on character grounds because of information obtained from the WA Police.
56.The Fourth Defendant and WA Police had falsely generated a 'criminal record' in the Plaintiff's name which was then provided to the Department of Immigration.
57.The 'criminal record' included information accusing the Plaintiff of:
57.1.Having used 8 aliases with a list of 8 different ridiculous names;
57.2.Having committed an offence in Australia;
57.3.Having a pending charge since April 2002;
57.4.Having a pending warrant in WA;
57.5.Having pending proceedings for an offence against an Australian law; and
57.6.Having been found guilty of an offence in Australia.
58.The criminality attributed to the Plaintiff at (57.1) (57.2) (57.5) (57.6) were incorrect information, and the items at (57.3) (57.4) were instigated by the Fourth and the Fifth Defendants in their Malicious Prosecution of the Plaintiff.
59.The Third Defendant was ultimately responsible for maintaining correct criminal record and owed Due Diligence in providing accurate information, and liable for failing Due Diligence.
60.The Fourth Defendant never lodged the Charge with the Court, there has not been proceedings in a Court and there never was a conviction, therefore, it should not have shown up on any Police Clearances and any information that were provided ought to have been accurate.
61.The Third Defendant owed to the Plaintiff pursuant to
61.1.Police Act Part 1 (5);
61.2.Police Act Section 137 (5)(a);
61.3.Civil Liability Act Division 2 Section 5B;
61.4.Civil Liability Act Division 2 Section 5C; and
61.5.Common Law
a Duty to ensure that the data maintained by the Western Australia Police were accurate and conducted his duties in a manner which did not cause reputational and practical harm to the Plaintiff.
62.The Plaintiff suffered loss and damages by reason of Commissioner's Negligence and Breach of the Duty he owed to the Plaintiff in his Non-delegable Duty and Duty of Care pursuant to:
62.1.Police Act Section 137 (5)(a);
62.2.Civil Liability Act Division 2 Section 5B;
62.3.Civil Liability Act Division 2 Section 5C; and
62.4.Common Law. (footnotes omitted)
As to the pleading at par 59 of the amended further substituted statement of claim (reproduced above), in a footnote Mr Saffari referred to s 137(5)(a) of the Police Act, to s 5B(1) and s 5B(2) of the Civil Liability Act, and to the common law.
Particulars of Mr Saffari's damage
At par 63 Mr Saffari pleaded that he suffered injury, loss and damage, and says that his damage included the following:
63.1.Delayed the Plaintiff's permanent residency for 5 years.
63.2.Delayed the Plaintiff's Citizenship for 13 years.
63.3.Prevented the Plaintiff from gaining employment, attend school or learn and upskill a trade.
63.4.Prevented the Plaintiff from fully developing his startup Internet Video-sharing and Livestreaming Websites by preventing implementation of a Business Plan to attract investors. (Business Plan is about the Person not the Business)
63.5.Caused the Plaintiff to miss the chance when the Pandemic created golden opportunity for viral Livestreaming platforms.
63.6.Prevented the Plaintiff from traveling abroad to see (before death) his Father, his Brother now his Mother who lamented year after year of dying incomplete not having seen her son for 43 years before death.
63.7.Prevented the Plaintiff from traveling abroad to pursue his Import/Export business.
63.8.Created financial loss due to unearned income, lost business opportunities and years of legal fees.
63.9.Resulted in loss of enjoyment of life with irreparable Damage.
63.10.Caused and continue to cause the Plaintiff depression requiring medical intervention.
Further Particulars of the Plaintiff's injury and damage will be provided prior to trial.
He also noted in his pleading that full particulars of his claim for loss of earnings and loss of enjoyment of life and life opportunities will be provided prior to trial.
Claims against Sergeant Talbot
At pars 65 to 90, Mr Saffari pleaded his claims as against Sergeant Talbot. As the applications do not directly concern Mr Saffari's pleaded claims as against Sergeant Talbot, it is not necessary that they be described here in detail. It is sufficient for the purposes of these reasons to note that Mr Saffari pleaded that Sergeant Talbot had statutory functions set out in pt II of the Police Act to serve the Commissioner of Police without malice; and on 9 August 2001, Sergeant Talbot used a report that he had prepared 'as the Evidence in Chief to start Malicious Prosecution of the Plaintiff spanning 16 years'.[27]
[27] Amended further substituted statement of claim pars 65 - 66.
Among other things, Mr Saffari alleged that Sergeant Talbot acted with malice in bringing the prosecution; that the prosecution was maintained without reasonable or probable cause; and that he suffered injury, loss and damage by reason of Sergeant Talbot's malice and malicious prosecution. At par 91, Mr Saffari described his damage in terms largely identical to those reproduced at [50] above.
Claims against Mr Fleyfel
At pars 93 to 102, Mr Saffari pleaded his claims as against Mr Fleyfel.
Mr Saffari pleaded that without reasonable cause, Mr Fleyfel made 'False and Maliciously Fabricated Accusations' about him with the intent it would cause him harm and cause him to be prosecuted for an offence that he did not commit.[28]
[28] Amended further substituted statement of claim par 93.
He pleaded that the 'level of malice involved in [Mr Fleyfel's] offending had devastating effects. Everything that followed was a result of [Mr Fleyfel's] Maliciously Fabricated Accusation'.[29]
[29] Amended further substituted statement of claim par 94.
At par 95, he pleaded that:
Therefore this was a Malicious Prosecution from the beginning and everything that followed, including the Protection Visa and Citizenship refusals, inability to obtain employment, inability to obtain a passport to travel abroad to see dying family members or do business activities, the prevention of attracting business investment and loss of that opportunity and significant loss of enjoyment of life was because of the Fifth Defendant's Fabricated Defamatory Injurious Falsehood Accusations, and lies and the subsequent and continued Malicious Prosecution.
At par 96 Mr Saffari pleaded that Mr Fleyfel, 'by leveling False Accusations against the Plaintiff procured the Fourth Defendant who pursued his Malicious Prosecution and brought about the Charge and the Warrant'. He also pleaded that Mr Fleyfel perjured himself in 2014, when he knowingly signed a statutory declaration in circumstances where he had admitted that it had incorrect information, indicative of Mr Fleyfel's character.[30]
[30] Amended further substituted statement of claim par 97.
Mr Saffari pleaded that on 24 June 2019, Mr Fleyfel informed him that he had reported him to Western Australia Police, where Mr Fleyfel had 'repeated his False 'payback' allegations'.[31] He further pleaded that allegations made by Mr Fleyfel in 2018/2019, 'in its natural and ordinary meaning, were Malicious and False'.[32]
[31] Amended further substituted statement of claim par 98.
[32] Amended further substituted statement of claim par 99.1.
He further pleaded that Mr Fleyfel is liable for 'False Accusations and Giving False Statement in Documents accusing [Mr Saffari] of crimes he did not commit and also Wrongful Malicious Prosecution', and at par 100 pleaded that as a consequence of Mr Fleyfel's 'Injurious Falsehood, Defamatory and False Accusations and Lies Allegations against [him, he] has suffered injury, loss and damage'. At par 102, Mr Saffari described his damage in terms largely identical to those reproduced at [50] above.
The Commissioner of Police's application
The Commissioner of Police's position
As noted above, the only issue pressed on behalf of the Commissioner of Police at the hearing of the application was whether the Commissioner of Police should be removed as a party to the proceeding pursuant to the RSC O 18 r 6(2)(a). Counsel submitted that in circumstances where there can be no cause of action against the Commissioner of Police (or 'Chris Dawson' himself), the third defendant is neither a proper or necessary party to this proceeding. In support of this contention, counsel made the following observations.[33]
[33] Second, third and fourth defendants' submissions pars 2 - 7.
In the amended writ of summons filed on 5 October 2022, it is alleged that the State of Western Australia (the second defendant) is liable for the tort of negligence of the Commissioner of Police (the third defendant) for providing a false criminal record in Mr Saffari's name to various entities. However, no allegation of malice or corruption on the part of the Commissioner of Police himself is made by Mr Saffari, nor does Mr Saffari allege that the Commissioner of Police had personal or direct involvement in the matters the subject of the claim. Rather, the basis of Mr Saffari's claim is the assertion that the Commissioner of Police was responsible for information stored in the Western Australia Police systems.
The Commissioner of Police is a 'member of the Police Force' for the purposes of s 137 of the Police Act, in that:
(a)pt I of the Police Act provides for the appointment of the Commissioner of Police, commissioned officers and non-commissioned officers; and
(b)s 136 provides that in s 137 and s 138 'member of the Police Force' means a person appointed under pt I, III, IIIA and IIIB.
Subsections (3) and (5)(a) of s 137 of the Police Act, provide as follows:
(3) An action in tort does not lie against a member of the Police Force for anything that the member has done, without corruption or malice, while performing or purporting to perform the functions of a member of the Police Force, whether or not under a written or other law.
…
(5) The Crown is liable for a tort that results from —
(a)anything done by a member of the Police Force, without corruption or malice, while performing or purporting to perform the functions of a member of the Police Force, whether or not under a written or other law;
In circumstances where the third defendant at the relevant time was a member of the Police Force and no corruption or malice is pleaded, counsel for the third defendant submits that s 137(3) of the Police Act denies Mr Saffari a cause of action against the third defendant in respect of the pleaded events, and in circumstances where there is no cause of action, the third defendant is neither a proper nor necessary party to the action.[34]
[34] Second, third and fourth defendants' submissions par 6.
At the hearing of the application, counsel for the third defendant further developed this submission by reference to the Court of Appeal decision of The State of Western Australia v Cunningham [No 3] [2018] WASCA 207.[35] Counsel referred particularly to [128], where Buss P and Murphy JA stated:
Section 137(3) operates, in general terms, (not unlike its predecessor, s 57A) positively to provide immunity from 'action' in tort, to police officers performing or purporting to perform their functions for anything done without corruption or malice. When s 137(3) is engaged, it confers immunity from action. It alters the position at common law, insofar as and to the extent that under the common law, an action could lie against a police officer in tort even where the police officer has acted without malice or corruption. It nevertheless leaves the common law to apply to torts where police officers in the performance, or purported performance, of their powers and duties, act with corruption or malice. The liability of police officers in such circumstances could include liability for both aggravated and exemplary damages. (footnotes omitted)
[35] ts 45 - 46 (1 December 2022).
In answer to Mr Saffari's submission that statutory immunities such as that found in s 137(3) ought be read in a restrictive manner,[36] counsel submitted that the decisions cited by Mr Saffari concerned different legislation with language and phrasing that was not the same as s 137(3); and the Court of Appeal had considered and determined the proper construction of s 137(3) in The State of Western Australia v Cunningham [No 3].[37]
Mr Saffari's position
[36] The plaintiff's submissions are summarised at [68] to [73] below.
[37] ts 45 - 46 (1 December 2022).
In response, Mr Saffari referred to par 6 of the submissions filed on behalf of the second, third and fourth defendants, which I reproduce below with pars 2 to 7 for context:
2.The Plaintiff's amended writ of summons filed on 5 October 2022 alleges (in summary) that the State of Western Australia is liable for the tort of negligence of the Commissioner of Police for providing a false criminal record in the Plaintiff's name to various entities.
3.The Plaintiff does not allege malice or corruption on the part of the Commissioner himself, nor does he allege that the Commissioner had personal or direct involvement in the matters the subject of the claim. The basis of the claim is that the Commissioner of Police was responsible for information stored in the WAPOL systems.
4.The Commissioner of Police is a 'member of the Police Force' for the purposes of section 137 of the Police Act 1892 (WA) (Police Act).
5.Section 137 of the Police Act relevantly provides as follows:
(3) An action in tort does not lie against a member of the Police Force for anything that the member [has done, without corruption or malice, while performing or purporting to perform the functions of a member of the Police Force, whether or not under a written or other law.]
(5) The Crown is liable for a tort that results from —
(a) anything done by a member of the [Police Force, without corruption or malice, while performing or purporting to perform the functions of a member of the Police Force, whether or not under a written or other law.]
6.Section 137(3) of the Police Act denies from the outset the existence of a cause of action in respect of the relevant events.
7.In circumstances where there is no cause of action against the Commissioner of Police (or "Chris Dawson") himself, the Third Defendant is neither a proper nor necessary party to the action
It appears from Mr Saffari's submission that he queried the position advanced on behalf of the third defendant as expressed at par 6. Among other things, Mr Saffari referred to the approach adopted by the High Court in Puntoriero v Water Administration Ministerial Corporation [1999] 199 CLR 575, in construing s 19(1) of the Water Administration Act 1986 (NSW), and the immunity provided by that section.[38] I note that at [4], Gleeson CJ and Gummow J recorded that:
[The] principal task is to construe s 19(1). This should be done both by looking at the sub-section in the context of the Administration Act as a whole and on the footing that the immunity conferred by such a provision should not "be carried further than a jealous interpretation will allow", to repeat a statement by Kitto J in Board of Fire Commissioners (NSW) v Ardouin [(1961) 109 CLR 105 at 116].
[38] ts 45 (1 December 2022).
I also understood that Mr Saffari referred to the decisions of the High Court in Board of Fire Commissioners (NSW) v Ardouin [1961] HCA 71; 109 CLR 105, particularly at [116], and Coco v The Queen (1994) 179 CLR 427, in opposition to the submission made on behalf of the third defendant at par 6 that s 137(3) of the Police Act 'denies from the outset the existence of a cause of action in respect of the relevant events'.[39]
[39] Plaintiff's submissions in reply to the second, third and fourth defendants' application pars 6 - 7.
I understood Mr Saffari to submit that s 137(3) of the Police Act properly construed and in light of these authorities, ought only extend to aspects of the functions of the Commissioner of Police that are done that justify special protection from liability. He submitted that the action attributed to the Commissioner of Police (the act of making available criminal records for a fee) was undertaken by the Commissioner of Police as a volunteer. That is, the Commissioner of Police by his action undertook a voluntary function and not a mandated function which required special authority, and therefore his action was not one which justified special protection from liability and must fall outside the scope of the immunity afforded by subsection (3) of s 137 of the Police Act.[40]
[40] ts 46 - 47 (1 December 2023).
In response to the submissions made in support of the application, particularly the submission made at par 6 (reproduced above), Mr Saffari also posed a number of questions. First, in the context of Mr Saffari's contention that the third defendant provided a 'Police Certificate' for a fee without a legal requirement to do so, Mr Saffari asks 'can the Crown deny any responsibility imposed under s 137(5)(a) where the Commissioner of Police was performing a voluntary function for a fee?'[41] Secondly, Mr Saffari asks 'can a claim against the Second Defendant for the tort of the Third Defendant remain if the Third Defendant was not named as a party or is removed as a party?'[42]
[41] Plaintiff's submissions in reply to the second, third and fourth defendants' application, par 8.
[42] Plaintiff's submissions in reply to the second, third and fourth defendants' application, par 9.
At the hearing of the application, Mr Saffari also submitted that the Commissioner of Police ought to remain a named defendant in the proceeding 'to negate the need for issuing a subpoena to be called as a witness'.[43]
Disposition
[43] ts 46 - 47 (1 December 2022).
In the context of the application to strike out the substituted statement of claim that had previously stood as Mr Saffari's pleaded claim, in Saffari v Western Australia Police at [113] I observed that:
Having regard to the provisions of s 137 of the Police Act to which I have referred, there is a basis for sheeting home liability to the State for a tort that results from anything done by the Commissioner or Sergeant Talbot, without corruption or malice, while performing or purporting to perform the functions of a member of the Police Force, whether or not under a written or other law. Of course, any such liability depends on their being a reasonable cause of action in tort that results from anything done by the Commissioner or Sergeant Talbot without corruption or malice. Under the Police Act, such liability will not extend to exemplary or punitive damages, as is presently claimed by Mr Saffari as against all defendants.
To the extent that Mr Saffari had then attempted to plead that the Commissioner of Police owed a duty of care to the public and that he breached that duty, I concluded that the pleading did not disclose a reasonable cause of action against the Commissioner of Police, as Mr Saffari had not pleaded a factual basis for the existence of a duty of care, nor a specific or identifiable instance of a breach of the duty.[44] In the circumstances, I was satisfied that the substituted statement of claim as it concerns the Commissioner of Police should be struck out, but granted Mr Saffari leave to replead a claim concerning the acts or omissions of the Commissioner of Police. In this regard, I observed that '[s]ome leniency should be afforded [to] Mr Saffari to re-plead the claim, within the bounds of the common law and s 137 of the Police Act'.[45] At that juncture, I refused to make an order removing the Commissioner of Police as a party to the proceeding pursuant to the RSC O 18 r 6(2)(a). Mr Saffari was afforded further opportunity to develop his case against the Commissioner of Police through amended pleadings. He has since attempted to plead a claim in negligence as against the Commissioner of Police.
[44] Saffari v Western Australia Police [125].
[45] Saffari v Western Australia Police [129].
I have considered the amended pleading filed by Mr Saffari. There is no plea that anything said to have been done by the Commissioner of Police was done with corruption or malice. Nor is there any plea that what actions were attributed to the Commissioner of Police were done other than while performing or purportedly performing his functions.
Having regard to the decision of the Court of Appeal in The State of Western Australia v Cunningham [No 3] at [128] (Buss P and Murphy JA), I am satisfied that when s 137(3) is engaged it confers immunity from action, and on Mr Saffari's pleaded case against the third defendant, I am satisfied that s 137(3) is engaged.
The RSC O 18 r 6 concerns the misjoinder and nonjoinder of parties and r 6(2)(a) provides as follows:
(2) At any stage of the proceedings in any cause or matter the Court may on such terms as it thinks just and either of its own motion or on application —
(a) order that any person who has been improperly or unnecessarily made a party or who has for any reason ceased to be a proper or necessary party, to cease to be a party;
I accept that when regard is had to Mr Saffari's pleas as against the third defendant in the amended further substituted statement of claim, in light of the operation s 137(3) of the Police Act, the third defendant is neither a proper nor necessary party to the action and the relief pressed on behalf of the third defendant is appropriate. A judgment could not be entered against the Commissioner of Police, in respect of whom, by force of s 137(3), an action does not lie.[46]
[46] The State of Western Australia v Cunningham [No 3] [157].
As to the first question posed by Mr Saffari in his submissions, I note that the State has not yet filed a defence to Mr Saffari's claims as presently pleaded. There may be a number of bases upon which the State will seek to defend the pleaded claims against it and this is not an appropriate occasion for the court to make observations as to what may be the State's pleaded defence and the force of the same. It is sufficient to say that I understand Mr Saffari's claim as against the Commissioner of Police concerns acts alleged to have been done by the Commissioner of Police while performing or purporting to perform the functions of a member of the Police Force, without corruption or malice.
As to the second question, I note that Mr Saffari asks whether a claim against the State for the tort of the Commissioner of Police can remain if the Commissioner of Police is not named as a party or is removed as a party?[47] It is clear from the reasons of the Court of Appeal in The State of Western Australia v Cunningham [No 3] that it can.
[47] Plaintiff's submissions in reply to the second, third and fourth defendants' application par 9.
When s 137(3) is engaged, it confers immunity from action.[48] The section operates to protect the Commissioner of Police, who at the relevant time was a 'member of the Police Force' for the purpose of that section, with immunity from civil actions in tort in certain circumstances, whereas subsection (5) in effect gives victims of tort redress against the State in circumstances where the member of the Police Force has acted without corruption or malice while performing or purporting to perform the functions of a member of the Police Force.[49]
[48] The State of Western Australia v Cunningham [No 3] [128], Buss P and Murphy JA citing Bell v The State of Western Australia [2004] WASCA 205; (2004) 28 WAR 555 [18] - [24].
[49] The State of Western Australia v Cunningham [No 3] [129] (Buss P and Murphy JA), [195] (Pritchard JA).
Mr Fleyfel's application
Mr Fleyfel's position
Malicious prosecution
In the outline of submissions filed in support of Mr Fleyfel's application, counsel broadly summarised the law with respect to the tort of malicious prosecution as follows.[50]
[50] ts 52 - 54 (1 December 2022).
First, a claim grounded in malicious prosecution requires Mr Saffari to establish that:[51]
(a)the prosecution was initiated by Mr Fleyfel;
(b) the prosecution terminated favourably to Mr Saffari;
(c) Mr Fleyfel acted with malice in beginning or maintaining the prosecution; and
(d) the prosecution was brought or maintained without reasonable and probable cause.
[51] Submissions filed on behalf of the fifth defendant par 5, citing A v New South Wales (2007) 230 CLR 500, 502 - 503.
Secondly, it is permissible for a plaintiff to commence a claim for malicious prosecution against a private citizen,[52] but a plaintiff must do more than prove any allegation made by a private citizen to an investigating officer was false, and no civil action lies 'merely for bearing false witness to investigating officers'.[53] In this regard, counsel noted that in order for a claim of malicious prosecution to succeed against a private citizen it must be shown that the private citizen was 'actively instrumental' in the institution of or continuation of the prosecution.[54]
[52] Submissions filed on behalf of the fifth defendant par 6, citing Porter v Oamps Ltd [2005] FCA 232 [41].
[53] Submissions filed on behalf of the fifth defendant par 6, citing Porter v Oamps Ltd [2005] FCA 232 [41], which in turn refers to Gregory v Portsmouth City Council [2000] 1AC 419, 426.
[54] Submissions filed on behalf of the fifth defendant par 7, citing Porter v Oamps Ltd [2005] FCA 232 [41].
Thirdly, a claim may exist where it can be shown an individual counselled or persuaded the prosecutor to instigate proceedings by dishonestly prejudicing the judgment of the prosecutor. What must be shown is that the private citizen was the 'moving force' behind the prosecution.[55]
[55] Submissions filed on behalf of the fifth defendant par 9.
Counsel further submitted that two examples of circumstances which may give rise to such a claim arise where:
(a) the prosecuting officers become 'in effect the agents of the defendant';[56] or
(b) the 'prosecutorial discretion has been overborne by the malicious acts of those that have provided the information and evidence to the prosecutor'.[57]
[56] Submissions filed on behalf of the fifth defendant par 9, citing Commonwealth Life Assurance Society Ltd v Brain (1935) 53 CLR 343, 379.
[57] Submissions filed on behalf of the fifth defendant par 9, citing Porter v Oamps Ltd [2005] FCA 232 [41].
That is, a plaintiff must show that the investigating officer was not acting 'in the ordinary course of their duties and on information received in arriving at a decision but were in effect the agents of the defendant…'.[58]
The pleaded claim against Mr Fleyfel
[58] Submissions filed on behalf of the fifth defendant par 10, citing Commonwealth Life Assurance Society Ltd v Brain (1935) 53 CLR 343, 379.
Counsel on behalf of Mr Fleyfel observed that in the latest pleading filed by Mr Saffari, his pleaded case as against Mr Fleyfel was solely in relation to a claim for malicious prosecution. Counsel referred to par 83 of the pleading where Mr Saffari pleaded that Mr Fleyfel 'played an active role in the conduct of the proceedings by instigating and setting them in motion'; and to pars 86 and 88.7 where Mr Saffari pleaded that Mr Fleyfel in effect instituted and continued the prosecution for '16 years'.[59]
[59] Submissions filed on behalf of the fifth defendant par 20.
As to the pleaded claim against Mr Fleyfel, a number of complaints were agitated by counsel on his behalf.
First, it was submitted that Mr Saffari's claim of malicious prosecution against Mr Fleyfel and also Sergeant Talbot were incompatible. That is, for Mr Saffari to succeed against Sergeant Talbot, he must demonstrate that it was Sergeant Talbot who initiated and acted with malice in bringing the prosecution. It was noted that if Mr Saffari was able to demonstrate that Sergeant Talbot acted with malice in bringing the prosecution, it followed that Mr Fleyfel was not 'actively instrumental', nor was he the 'moving force' in the institution or continuation of the prosecution.[60]
[60] Submissions filed on behalf of the fifth defendant pars 21 - 22.
Secondly, it was submitted that there remained serious deficiencies in Mr Saffari's pleaded case against Mr Fleyfel. In this regard, counsel noted that the only material facts pleaded by Mr Saffari in respect of his claim against Mr Fleyfel were as follows:[61]
(a) the Plaintiff and Fifth Defendant worked at the same Café at the same time;
(b) in or about September 2001, the Fifth Defendant made a statement to the Fourth Defendant about the Plaintiff;
(c) in or about December 2005, the Fifth Defendant made a statement to the Fourth Defendant that he was 'not concerned about proceeding with his complaint'; and
(d) on or about 24 June 2019, the Fifth Defendant 'informed the Plaintiff via SMS that the Fifth Defendant had reported the Plaintiff to the WA Police'.
[61] Submissions filed on behalf of the fifth defendant par 25, with references to the amended further substituted statement of claim pars 5, 10, 23 and 98.
The deficiency is such that counsel for Mr Fleyfel submitted that Mr Saffari had failed to disclose a reasonable cause of action as against him.[62]
[62] Submissions filed on behalf of the fifth defendant par 27; ts 60 - 62 (1 December 2022).
Counsel for Mr Fleyfel also referred to par 23 of the pleading (also summarised at [35] above), where Mr Saffari pleaded that on 1 December 2005 Sergeant Talbot filed a report that Mr Saffari 'has been refused Residency Visa in Queensland' and that '(Redacted) had no communication with POI [Mr Saffari] since May 2001 and the (Redacted) is not concerned about proceeding with his complaint'. Counsel submitted that the content of the report of Sergeant Talbot pleaded at par 23 (particularly the recording that the redacted complainant, who I understood counsel assumed was Mr Fleyfel, was not concerned about proceeding with his complaint), was inconsistent with any assertion that Mr Fleyfel was 'actively instrumental' in the institution of or continuation of the prosecution.[63]
[63] ts 61, 62 (1 December 2022).
Counsel submitted that given the incompatibility of the claims pleaded as against Mr Fleyfel and Sergeant Talbot, should Mr Saffari seek to press his claim of malicious prosecution against Sergeant Talbot, Mr Fleyfel ought to be removed from the action. Alternatively, should Mr Saffari press his claim for malicious prosecution against Mr Fleyfel, then Mr Saffari ought to properly plead the cause of action and the current pleading ought be struck out in its entirety as it relates to Mr Fleyfel.[64]
Mr Saffari's position
[64] Submissions filed on behalf of the fifth defendant pars 31 and 32; ts 52 (1 December 2022).
I understood Mr Saffari to contend that his pleading disclosed a cause of action as against Mr Fleyfel and was not so problematic that it ought be struck out. Mr Saffari complained that the ongoing attacks on his pleading were not warranted and were creating delay.
Mr Saffari made plain in his submissions that he considered Mr Fleyfel to be an instigator of the prosecution commenced against him and not a mere witness.[65]
[65] ts 63 (1 December 2022).
Mr Saffari sought to emphasise pars 98 and 99 of his pleading, where he had pleaded that on 24 June 2019, Mr Fleyfel informed Mr Saffari that he had reported Mr Saffari to Western Australia Police, where Mr Fleyfel had 'repeated his False 'payback' allegations'.[66] In his written outline of submissions, Mr Saffari referred to that as 'the most recent complaint made to the police sometime in 2018'.[67] Mr Saffari submitted that '[t]he most recent complaint to the Police relates to the Fifth Defendant's continuation of malicious prosecution of the Plaintiff, and connects the false accusation made in 2001 to 2018'.[68]
[66] Amended further substituted statement of claim pars 98 - 99.
[67] Plaintiff's submissions in reply to the fifth defendant's application par 14.
[68] Plaintiff's submissions in reply to the fifth defendant's application par 14.3.
As to Mr Fleyfel's complaints as to the pleading, and particularly what Mr Fleyfel described as the incompatibility of Mr Saffari's pleaded claims discussed at [94] and [95] above, Mr Saffari submitted that '[t]he causes of action in malicious prosecution are not controversial and the law as to the circumstances in which someone who is not actually the prosecutor can also be liable for having 'instigated' a prosecution [therefore cause of action] has been tested numerous times and well recognized, notably the reference made by Dixon J to 'joint wrongdoers''.[69]
[69] Plaintiff's submissions in reply to the fifth defendant's application par 24.
The reference to the decision of Dixon J by Mr Saffari was a reference to Commonwealth Life Assurance Society Ltd v Brain (1935) 53 CLR 343 at 379, which decision is discussed below.
It was Mr Saffari's position that Mr Fleyfel's application to be removed as a party, alternatively to strike out the pleading entirely or as it relates to Mr Fleyfel, ought be dismissed with costs.
Disposition
As noted above and as was reflected in the amended chamber summons, the primary relief sought at the hearing of Mr Fleyfel's application was that Mr Fleyfel be removed or cease to be a party to the action pursuant to the RSC O 18 r 6(2)(a); alternatively that Mr Saffari's amended pleading be struck out in its entirety pursuant to the RSC O 20 r 19(1).
The tort of malicious prosecution involves maliciously, and without reasonable and probable cause, instituting a groundless criminal prosecution.[70] The elements of the tort of malicious prosecution were identified by counsel for Mr Fleyfel, and are summarised at [84] above, to which I would add the requirement that the plaintiff suffered damage, given that the action for malicious prosecution developed from the action on the case;[71] and that the damage suffered must be of the type recognised in Savile v Roberts(1698) 1 Ld Raym. 374, that is, damage to reputation, damage to person, or damage to property.
[70] The State of Western Australia v Cunningham [No 3] [152].
[71] Noye v Robbins [2007] WASC 98 [216] (the identification of the elements of the tort was not in issue in the appeal as noted by Owen JA in Noye v Robbins [2010] WASCA 83 [61] and [62]). See also New South Wales v Zreika [2012] NSWCA 37; Balkin & Davis law of torts (6th ed, 2021) 25.16.
It was not suggested that Mr Fleyfel held an official prosecutorial role, and counsel for Mr Fleyfel accepted that it is possible for a claim for malicious prosecution to be made out as against Mr Fleyfel if he was 'actively instrumental' in the institution or continuation of the prosecution.[72] I proceed on the basis that merely telling lies to the police is not tortious unless it constitutes a defamation, which is not alleged by Mr Saffari. No civil action lies merely for bearing false witness to investigating officers.[73]
[72] Submissions filed on behalf of the fifth defendant par 7; ts 52 - 53 (1 December 2022).
[73] Porter v Oamps Ltd [2005] FCA 232 [41], citing Gregory v Portsmouth City Council [2000] 1 AC 419, 426.
As was noted by Goldberg J in Porter v Oamps Ltd at [42]:
It is clear from the authorities that where a respondent gives investigatory authorities certain information, even where that information amounts to damning evidence, that does not necessarily result in the respondent being labelled a "prosecutor". A distinction is drawn between the mere giving of information and circumstances in which the respondent provides information in such a way that the investigating body is effectively rendered unable to exercise an independent discretion whether to set the prosecution in motion. An action for malicious prosecution is more likely to be successful in circumstances where, for example, a respondent has supported false information with fraudulent witnesses (Pandit Gaya Parshad Tewari v Sardar Bhagat Singh (1908) 24 TLR 884 at 884) or where the respondent has procured the institution of criminal proceedings (Martin v Watson [1996] 1 AC 74 at 76 - 7; [1995] 3 All ER 559). In effect, it may be necessary to establish that the prosecutorial discretion has been overborne by the malicious acts of those that have provided information and evidence to the prosecutor. As it was put by Dixon J in Commonwealth Life Assurance Society Ltd v Brain (1935) 53 CLR 343 at 379:
It is clear that no responsibility is incurred by one who confines himself to bringing before some proper authority information which he does not disbelieve, even although in the hope that a prosecution will be instituted, if it is actually instituted as the result of an independent discretion on the part of that authority (Danby v Beardsley; Fanzelow v Kerr). But if the discretion is misled by false information, or is otherwise practised upon in order to procure the laying of the charge, those who thus brought about the prosecution are responsible (Pandit Gaya Parshad Tewari v Sardar Bhagat Singh; Black v Mackenzie) ... The rule appears to be that those who counsel and persuade the actual prosecutor to institute proceedings or procure him to do so by dishonestly prejudicing his judgment are vicariously responsible for the proceedings.
...
The expression "instigate" is not altogether free of ambiguity but it is used by Sir John Salmond (Law of Torts, 7th ed (1928) p 618) whence the learned Judge seems to have taken the language of the questions put to the jury. In his charge his Honour said: "When I use the word instigated in that question, I mean really do you come to the conclusion that the police were not acting in the ordinary course of their duties and on information received in arriving at a decision but were in effect the agents of the defendant company as has been suggested. In other words, was the position dominated by the defendant company, and was the police action really action through that of the defendant company." [Footnotes omitted]
Removal as a party
I am not satisfied that it is appropriate to remove Mr Fleyfel as a party to the proceeding pursuant to the RSC O 18 r 6(2)(a).
In this case, the issue arises as to whether malicious prosecution can be or has been properly pleaded as against Mr Fleyfel. Mr Fleyfel says that it cannot be and has not been properly pleaded. As noted above, counsel for Mr Fleyfel submitted that what must be shown is that Mr Fleyfel, as a private citizen, was the 'moving force' behind the prosecution of Mr Saffari. Mr Saffari's claims as against Mr Fleyfel and Sergeant Talbot are not pleaded in the alternative and Mr Fleyfel says that as a result, it is appropriate to remove Mr Fleyfel as a party to the proceeding pursuant to the RSC O 18 r 6(2)(a), or alternatively the claim against Mr Fleyfel is liable to be struck out.
As to incompatibility, Mr Saffari referred to the reasons of Dixon J in Commonwealth Life Assurance Society Ltd v Brain at 379, where his Honour observed:
If the actual prosecutor acts maliciously and without reasonable and probable cause, those who aid and abet him in doing so are joint wrongdoers with him.
To this I would add the observation made by Basten JA (Santow and Giles JJA agreeing) in Johnston v Australia & New Zealand Banking Group Ltd, that several defendants could be liable for malicious prosecution if each was involved in actively, and maliciously, putting the criminal process in motion.[74]
[74] Johnston v Australia & New Zealand Banking Group Ltd [2006] NSWCA 218 [37].
In making this observation, the court considered the tort's derivation being based upon the fact of a conspiracy between two or more persons to procure the indictment of a plaintiff. It followed that the fact that two persons were necessary for a conspiracy suggested that more than one person can be 'the real prosecutor' for the purposes of the modern tort of malicious prosecution.[75] This was also considered to be consistent with the approach of Lopes J in Danby v Beardsley[76] that a prosecutor for the purposes of the tort is a person 'actively instrumental in putting the law in force', and is consistent with the approach in Commonwealth Life Assurance Society Ltd v Brain discussed above.
[75] Johnston v Australia & New Zealand Banking Group Ltd [37], citing Davis v Gell (1924) 35 CLR 275 (Isaacs ACJ); see also Evans v London Hospital Medical College [1981] 1 WLR 184.
[76] Danby v Beardsley (1880) 43 LT 603, 604.
In light of the above, it is not appropriate to remove Mr Fleyfel as a party to the proceeding pursuant to the RSC O 18 r 6(2)(a) by reason of the complained of incompatibility. While there remain real difficulties with Mr Saffari's pleading as against Mr Fleyfel, I am not satisfied that Mr Fleyfel has been improperly or unnecessarily made a party to this proceeding. Further, I note that Mr Fleyfel's position is different to that of the Commissioner of Police who, in light of the operation s 137(3) of the Police Act, is neither a proper nor necessary party to the action. Nor is O 18 r 6(2)(a) an appropriate vehicle for Mr Fleyfel to agitate in effect for summary judgment in his favour.
Strike out application
In Saffari v Western Australia Police [8] - [10], I described the principles to be applied when considering whether a pleading ought be struck out, and when leave to amend will be granted. I adopt these principles in the determination of Mr Fleyfel's application to strike out Mr Saffari's pleading against him.
In light of [108] to [111] above, it is not appropriate to strike out Mr Saffari's pleading by reason of the complained of incompatibility.
Further, the fact that Mr Saffari's case appears weak against Mr Fleyfel is not of itself sufficient to strike out the claim. While Mr Saffari does not expressly plead that the prosecution was initiated by Mr Fleyfel, he pleaded at par 10 that on 27 September 2001, Sergeant Talbot began his prosecution of Mr Saffari with a report that on 14 September 2001 Mr Fleyfel complained to Sergeant Talbot that on 18 May 2001 he was threatened to be killed by Mr Saffari and that Mr Fleyfel 'was a witness to the offence'.
At par 49, Mr Saffari pleaded that on 14 November 2018, the charge was discontinued, in substance a plea that the prosecution terminated favourably to Mr Saffari.
At par 93, Mr Saffari pleaded that without reasonable cause, Mr Fleyfel made 'False and Maliciously Fabricated Accusations' about him with the intent it would cause him harm and cause him to be prosecuted for an offence that he did not commit. By his pleading at pars 10 and 11, and pars 98 and 99 Mr Saffari identified the two occasions Mr Saffari says the 'accusations' were made.
When regard is had to these pleas, the pleading fulfils its basic functions of identifying the issues, disclosing an arguable cause of action, and apprising Mr Fleyfel of the case that has to be met.
However, there are aspects of the pleading that make it liable to be struck out on the ground that the pleading may prejudice, embarrass and delay a fair trial. I refer to Mr Saffari's use of footnotes, which are particularly problematic from a pleading perspective. Some footnotes reference legislation. For example, in par 2, Mr Saffari pleaded that the second defendant is the employer of the third defendant, able to be sued and liable for torts committed by the third defendant. As a footnote to par 2, Mr Saffari referenced the Police Act s 137(5)(a). Other footnotes appear to contain Mr Saffari's comments on the facts pleaded or documents in his possession that may be relevant to his pleaded claim, by way of submission. For example, at pars 10 and 11 Mr Saffari pleaded as follows:
10.On 27 September 2001, the Fourth Defendant began his prosecution of the Plaintiff with a report that on 14 September 2001 the Fifth Defendant complained to the Fourth Defendant that on 18 May 2001 he was threatened to be killed by the Plaintiff and that the Fifth Defendant "was a witness to the offence". [ft 5]
11.The substance of the allegations as reported by the Fourth Defendant were: "Three months ago (or four months ago) [ft 6] the Fifth Defendant told the Fourth Defendant that the Sixth Defendant told the Fifth Defendant that the Plaintiff told the Sixth Defendant (or someone else) [ft 7] that in three years the Plaintiff will come back and kill the Fifth Defendant". [ft 8]
Footnotes 5 to 8 are as follows:
5 In some of the subsequent reports the Fourth Defendant claims the Fifth Defendant "was not a witness to the offence" but was told by the Sixth Defendant about the offence, addressed below.
6 The Fourth Defendant writes the date of the complaint as 09 August 2001 in some of the reports and as 14 September 2001 in others.
7 In some of the reports it is unclear who was the alleged witness.
8 The purpose behind the 3-year time period is yet unknown.
How the defendants ought approach pleading their respective defences in light of the extensive use by Mr Saffari of footnotes which include among other things submission, is unclear. Mr Saffari did not employ this device in his pleading filed on 13 April 2021, which was discussed in Saffari v Western Australia Police. Mr Saffari ought replead his claim avoiding the use of footnotes.
Further, Mr Saffari ought plead the facts giving rise to the alleged liability, rather than the legal basis on which he contends those facts give rise to liability; and refrain from pleading evidence which does not constitute a material fact or particulars and conclusions of law.
Conclusion and orders
For these reasons, the application of the third defendant will succeed and the third defendant will cease to be a party to the action from the date of my order. The third defendant is entitled to his costs of defending the proceeding to date, to be taxed if not agreed.
As to the fifth defendant, for these reasons the application to remove Mr Fleyfel as a party pursuant to the RSC O 18 r 6(2)(a) is refused. However, the pleading filed on 25 October 2022 will be struck out and Mr Saffari given leave to replead.
I will hear the parties as to the appropriate form of orders and as to the costs of the fifth defendant's application.
Sch A - Amended chamber summons filed on behalf of the second, third and fourth defendants on 30 November 2022
Sch B - Amended chamber summons filed on behalf of the fifth defendant on 30 November 2022
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
RW
Associate to Honourable Justice Strk
21 FEBRUARY 2023
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