Saffari v Western Australia Police - [2022] WASC 200

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   SAFFARI -v- WESTERN AUSTRALIA POLICE [2022] WASC 200
CORAM:   ACTING MASTER STRK
HEARD:   16 JUNE 2021
DELIVERED          :   15 JUNE 2022
FILE NO/S:   CIV 3183 of 2019
BETWEEN:   SHAHRIAR SAFFARI
Plaintiff
AND
WESTERN AUSTRALIA POLICE
First Defendant
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 for leave to bring strike out applications - Applications made out of time

Legislation:

Defamation Act 2005 (WA)
Limitation Act 2005 (WA)
Police Act 1892 (WA)
Public Sector Management Act 1994 (WA)
Rules of the Supreme Court 1971 (WA)

Result:

Leave to bring strike out applications granted
Application to remove the first defendant as a party granted
Applications to strike out the substituted statement of claim granted
Leave to re-plead granted in part

Category: B

Representation:

Counsel:

Plaintiff	:	In Person
First Defendant	:	JN Harman
Second Defendant	:	JN Harman
Third Defendant	:	JN Harman
Fourth Defendant	:	JN Harman
Fifth Defendant	:	N Malone
Sixth Defendant	:	No appearance

Solicitors:

Plaintiff	:	In Person
First Defendant	:	State Solicitor's Office
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 The State of New South Wales [2007] HCA 10; (2007) 230 CLR 500
Albrecht v Commissioner of Police [2015] WASC 248
Automotive, Food, Metals, Engineering, Printing & Kindred Industries Union of Workers Western Australia Branch v Bell-A-Like Rottnest Pty Ltd [2005] WASCA 157
Banque Commerciale SA, En Liquidation v Akhil Holdings Ltd [1990] HCA 11; (1990) 169 CLR 279
Bride v Peat Marwick Mitchell [1989] WAR 383
Briggs v Curtis Quick & Associates [1999] WASCA 139
Calabro v The State of Western Australia (No 3) [2014] WASC 84
Calabro v The State of Western Australia [2012] WASC 418
Chaff and Hay Acquisition Committee v JA Hemphill and Sons Pty Ltd (1947) 74 CLR 375
Church of Scientology Inc v Woodward [1982] HCA 78; (1982) 154 CLR 25
Coe v Commonwealth (1979) 24 ALR 118
Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Queensland Rail [2015] HCA 11; (2015) 256 CLR 171
Culleton v Permanent Custodians Ltd [2018] WASC 251
Dare v Pulham [1982] HCA 70; (1982) 148 CLR 658
Dart v Norwich Union Life Australia Ltd [2002] FCA 168
David Clarke Air Conditioning Pty Ltd v Quann [2016] WASC 73
Enever v The King (1906) 3 CLR 969
English v Vantage Holdings Group Pty Ltd [2021] WASCA 47
Esanda Finance Corporation Ltd v Peat Marwick Hungerfords [1997] HCA 8; (1997) 188 CLR 241
Forrest v Australian Securities and Investments Commission [2012] HCA 39; (2012) 247 CLR 486
Gould v Mount Oxide Mines Ltd (in liq) [1916] HCA 81; (1916) 22 CLR 490
Graham Barclay Oysters Pty Ltd v Ryan [2002] HCA 54; (2002) 211 CLR 540
Hart-Roach v Public Trustee (Unreported, WASC, Library No 980044, 11 February 1998)
Insurance Commission of Western Australia v Woodings [No 2] [2017] WASC 372
Kidd v Artus [2013] WASC 264
Kimberley Downs Pty Ltd v The State of Western Australia (Unreported, WASC, Library No 6414, 25 August 1986)
McKechnie v Campbell (1996) 17 WAR 62
Mickelburg v The State of Western Australia [2007] WASC 140
Minogue v Human Rights and Equal Opportunity Commission [1999] FCA 85; (1999) 84 FCR 438
Nyoni v Patterson [2012] WASCA 171
Opperman v The State of Western Australia [2011] WASC 25
Pense v Hemy [1973] WAR 40
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473
Sullivan v Moody [2001] HCA 59; (2001) 207 CLR 562
Taff Vale Railway Co v Amalgamated Society of Railway Servants [1901] AC 426
Tame v The State of New South Wales [2002] HCA 35; (2002) 211 CLR 317
Technip Oceania Pty Ltd v Cutmere Pty Ltd [2019] WASC 478
Tey v Plotz [2010] WASC 163
Tobin v Dodd [2004] WASCA 288
Vantage Holdings Group Pty Ltd v Donnelly [No 4] [2019] WASC 398
Williams v Hursey (1959) 103 CLR 30
Wright Prospecting Pty Ltd v Hancock Prospecting Pty Ltd (No 13) [2021] WASC 214
XX v Australian Crime Commission [2014] FCA 177
Youlden Enterprises Pty Ltd v Health Solutions (WA) Pty Ltd [2006] WASC 161; (2006) 33 WAR 1

Table of Contents

Introduction

Applicable principles

Leave to bring applications out of time

Pleadings and strike out applications

When leave to amend will be granted

Procedural history

The evidence

Mr Saffari's claims

The parties

The allegation

Damages

The defendants' liabilities

Details of claim

The position of the parties

The position of the first to fourth defendants

The joinder of 'Western Australia Police' as the first defendant

The third defendant - Mr Chris Dawson

The fourth defendant - Sergeant Talbot

The position of the fifth defendant - Mr Fleyfel

No reasonable cause of action

Prejudice, embarrass or delay the fair trial of the action

Scandalous, frivolous or vexatious

Removal of the fifth defendant from the action

Mr Saffari's position

Disposition

Extension of time

Is 'Western Australia Police' a proper party?

Do the pleadings disclose a reasonable cause of action?

As against the State of Western Australia

As against the Commissioner of Police

As against Sergeant Talbot

As against Mr Fleyfel

Would the pleadings prejudice, embarrass or delay the fair conduct of the proceeding?

Are the pleadings scandalous, frivolous or vexatious?

Conclusion and orders

Sch A: Proposed orders

ACTING MASTER STRK:

Introduction

Mr Shahriar Saffari commenced a proceeding 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 was not served and has not entered an appearance.
Three applications were listed together for hearing:
(a)the application of the first, second and third defendants made by chamber summons filed on 4 February 2021 seeking among other things, orders to remove the first and third defendants 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 second defendant pursuant to the RSC O 20 r 19(1);
(b)the application of the fifth defendant made by chamber summons filed on 11 March 2021 seeking among other things, orders to remove the fifth defendant as a party to the proceeding pursuant to the 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 fifth defendant pursuant to the RSC O 20 r 19(1); and
(c)the application of the fourth defendant by chamber summons filed on 14 May 2021 seeking among other things, orders to strike out the writ of summons and substituted statement of claim in their entirety as they relate to the fourth defendant pursuant to the RSC O 20 r 19(1).
All defendant applicants pressed for the strikeout on the grounds that the writ and substituted statement of claim:
(a)disclose no reasonable cause of action against them;
(b)are scandalous, frivolous and/or vexatious; and
(c)may prejudice, embarrass or delay the fair trial of the action.[1]
[1] While each defendant applicant by their respective chamber summons also applied to strike out on the ground that the indorsement and pleading were otherwise an abuse of process of the court pursuant to the RSC O 20 r 19(1)(d), this ground was withdrawn at the hearing: ts 7, 8 and 16 (16 June 2021).
The defendant applicants also sought leave to bring their respective applications after the time prescribed in the RSC O 20 r 19(3)(a).
For the reasons that follow, I am satisfied that the defendant applicants are entitled to a significant part of the relief sought.

Applicable principles

Leave to bring applications out of time

An application to strike out a pleading pursuant to the RSC O 20 r 19(1) must be made within 21 days of the service of the pleading.[2] In Wright Prospecting Pty Ltd v Hancock Prospecting Pty Ltd (No 13) [2021] WASC 214 [154], Le Miere J succinctly outlined the principles that apply when exercising the discretion to extend time in the following terms:
When exercising the discretion to extend time, the court will take into account the principles of positive case flow management. The discretion to extend time will be exercised where the interests of justice or efficient case management require it, because, for example, of an irreparable prejudice to the applicant or a prejudice to the trial process or the efficient utilisation of the resources of the parties and of the court. Such prejudice might be established by showing that the disputed pleading would unnecessarily protract either the time to be taken in preparation for trial or the conduct of the trial itself by reason of the inclusion of an allegation which had no reasonable prospect of success.
[2] RSC O 20 r 19(3)(a).
The principles that apply to an extension of time are, generally, that delay in bringing an application should be justified. Irrespective of whether the delay can be justified, time should be extended if it can be established that the interests of justice require that extension because of, for example, irreparable prejudice to a party or prejudice to the trial process, or the efficient utilisation of the resources of the parties and of the court.[3]

Pleadings and strike out applications

[3] Youlden Enterprises Pty Ltd v Health Solutions (WA) Pty Ltd [2006] WASC 161; (2006) 33 WAR 1 [17] ‑ [19].

The requirements of a proper pleading and the grounds upon which a pleading may be struck out were summarised by Smith J in Vantage Holdings Group Pty Ltd v Donnelly [No 4] [2019] WASC 398 [60] as follows:[4]
[4] Which summary was approved on appeal: English v Vantage Holdings Group Pty Ltd [2021] WASCA 47 [55].
(a)the essential functions of a pleading are to define and limit the issues for decision, to provide the basis for determining discovery and the admissibility of evidence for trial, and to ensure a fair trial by putting the other side on notice of the case it must meet;
(b)a statement of claim must not plead allegations at too high a level of generality. A pleading must be sufficiently particular to conform with one of the primary objects of pleadings, to inform the opposing party of the case that it must meet;
(c)a statement of claim must state specifically the relief or remedy claimed;
(d) the court should proceed with caution before striking out a pleading on the ground that it does not disclose a reasonable cause of action. While the court may determine a difficult question of law on such an application, it would usually be appropriate to leave the determination of such questions for trial;
(e)in alleging no reasonable cause of action:
(i)the question to be decided is not whether the facts pleaded are in themselves sufficient to give rise to a cause of action. Rather, the question is whether it would be open to the party (on its pleadings) to prove facts at the trial which would constitute a cause of action; and
(ii)'reasonable' means reasonable according to law. If the facts pleaded conceivably give rise to relief, then the cause of action should be held to be reasonable;
(f)the mere fact that a case appears weak is not of itself sufficient to strike out the action;
(g)in considering a strike out application, it is now necessary to consider the role of pleadings in the context of case management techniques. Case management considerations are not, however, necessarily antithetical to the observance of pleading rules. The objects of O 1 r 4A and 4B of the Rules of the Supreme Court 1971 (WA) are often promoted by a clear and precise statement of the issues for decision;
(h)provided a pleading fulfils its basic functions of identifying the issues, disclosing an arguable cause of action (or defence), and apprising the parties of the case that has to be met, the court ought properly be reluctant to allow the time and resources of the parties and the limited resources of the court to be spent extensively debating the application of technical pleading rules that evolved in, and derive from, a very different case management environment;
(i)pleadings may be struck out on the ground that they may prejudice, embarrass or delay the fair trial of the action because they are evasive, they conceal or obscure the real questions in controversy, they are ambiguous or not reasonably intelligible, they raise immaterial or irrelevant issues, they fail to confine the issues or state the case of the party in question with reasonable particularity, or they raise a case in terms which are simply too general; and
(j)irrelevant or unnecessary pleas in a statement of claim will be struck out on the grounds that they will prejudice, embarrass or delay the fair trial of the action where the defendant must traverse the allegations and, thereby, raise false issues.
(Footnotes omitted.)
Mr Saffari is a litigant in person. In Culleton v Permanent Custodians Ltd [2018] WASC 251, Allanson J observed:
[34]This case presents many of the difficulties attending the conduct of cases where a party is not legally represented. The role of the judge in civil proceedings where a party is not represented has been discussed in many authorities.[5] It is well settled that leniency may be required in relation to compliance with the procedural rules. And the court will approach an application to summarily determine a claim brought by a self-represented litigant with special care, 'to ensure that within the possibly ill-expressed and unstructured statement of claim, there is no viable cause of action'.
[35]But the allowances that can be made are necessarily limited, both as a matter of fairness to the other party, and because compliance with procedure may be necessary to ensure that the court can properly decide the dispute before it. Pleadings ensure a basic requirement of procedural fairness, and, to do so, must state the case sufficiently clearly to allow the other party a fair opportunity to meet it.[6] In Nyoni v Patterson [2012] WASCA 171, Pullin JA said:
After allowing for the disadvantage an in person litigant suffers, it is still necessary, out of fairness to defendants, that the statement of claim is drawn so that when the opponent pleads to it, the pleadings will define with clarity and precision the issues or questions which are in dispute between the parties and fall to be determined by the court. A statement of claim must state all material facts to support the claim to relief so that fair and proper notice is given to the defendants to enable them to frame and prepare their own case for trial. Such clarity and precision is also necessary to inform the court about the precise matters in issue between the parties which are to be determined by the court and which set the limits of the action.
… clear and precise pleadings are necessary because they form a permanent record of the issues and questions raised in the action and decided so as to prevent future litigation upon matters already adjudicated upon between the litigants: Opperman v The State of Western Australia [2011] WASC 25 [38] (EMHeenan J).

When leave to amend will be granted

[5] See, for example, Minogue v Human Rights and Equal Opportunity Commission [1999] FCA 85; (1999) 84 FCR 438 [26] ‑ [30]; and see Tobin v Dodd [2004] WASCA 288.

[6] Banque Commerciale SA, En Liquidation v Akhil Holdings Ltd [1990] HCA 11; (1990) 169 CLR 279, 286 - 287; Gould v Mount Oxide Mines Ltd (in liq) [1916] HCA 81; (1916) 22 CLR 490, 517; Forrest v Australian Securities and Investments Commission [2012] HCA 39; (2012) 247 CLR 486 [26].

The court has the discretion to grant a plaintiff leave to amend a pleading following a successful strike out application.[7] Leave to amend is commonly given when an application to strike out is successful.[8] Where the deficiency in the pleading arises due to the pleading failing to disclose a reasonable cause of action, a plaintiff is ordinarily permitted to amend the pleading to address the deficiency.[9] Conversely, leave to re-plead will be refused when the whole proceeding is infected by an abuse of process,[10] or when it can be seen that no amendment will improve the case.[11] It is not usually appropriate to give leave to amend a pleading into a form which is inconsistent with existing particulars.[12]
[7] RSC O 21 r 5(2).
[8] Coe v Commonwealth (1979) 24 ALR 118, 132.
[9] Insurance Commission of Western Australia v Woodings [No 2] [2017] WASC 372 [32]. See also ts 15 (16 June 2021).
[10] McKechnie v Campbell (1996) 17 WAR 62, 75.
[11] Bride v Peat Marwick Mitchell [1989] WAR 383, 394; Dart v Norwich Union Life Australia Ltd [2002] FCA 168 [46], [47].
[12] Briggs v Curtis Quick & Associates [1999] WASCA 139 [25].
I have adopted the principles set out above in the determination of the applications.

Procedural history

The proceeding was commenced by Mr Saffari on 29 December 2019 by writ of summons indorsed with a statement of claim.
An appearance was entered on behalf of the first, second and third defendants on 16 December 2020 by the State Solicitor's Office.
On 22 December 2020, the fifth defendant entered an appearance on his own behalf. During the course of the proceeding, the fifth defendant came to be represented by Hardless Legal and most recently by Pragma Legal.
On 4 February 2021, the chamber summons described at [2(a)] above was filed on behalf of the first, second and third defendants. Filed with the chamber summons was a certificate of conferral; a minute of proposed orders; and draft affidavit of Mr Georg Raithel prepared in support of an extension of time to bring the application. Mr Raithel, a solicitor employed by the State Solicitor's Office, was unable to affirm his affidavit at the time of filing due to COVID‑19 lockdown restrictions. Mr Raithel's affirmed affidavit was filed on 9 February 2021.
The first, second and third defendant's chamber summons was listed before Master Sanderson on 18 February 2021, at which time orders were made programming the application to a substantive hearing.
On 24 February 2021, the fourth defendant entered an appearance on his own behalf.
On 11 March 2021, the chamber summons described at [2(b)] above was filed on behalf of the fifth defendant. Filed in support of the chamber summons was a memorandum of conferral; a minute of proposed orders; and the affidavit of Mr Nicholas Francis Malone, solicitor for the fifth defendant, sworn on 11 March 2021. A second affidavit of Mr Malone sworn on 23 April 2021 was also filed in support of the fifth defendant's application.
On 29 March 2021, by consent of the parties, the applications of the first, second and third defendants, and the application of the fifth defendant were ordered to be heard together at a special appointment.
On 13 April 2021, Mr Saffari filed a substituted statement of claim in the proceeding.
On 14 May 2021, the application described at [2(c)] above was filed on behalf of the fourth defendant. The fourth defendant was by then also represented by the State Solicitor's Office. Filed in support of the chamber summons was a memorandum of conferral; and an affidavit of Mr Raithel affirmed on 13 May 2021.
The parties agreed that all applications could be heard at the one special appointment. They also agreed that the applications of the first to third and fifth defendants be amended so as to refer to Mr Saffari's substituted statement of claim.[13]
[13] Letter to the Court filed on 14 May 2021; ts 4 - 5, 16 (16 June 2021). The fourth defendant's application referred to the substituted statement of claim.

As the action included a claim by Mr Saffari in respect of defamation and malicious prosecution, it was not open to the plaintiff to indorse the writ of summons with a statement of claim.[14] Again, the parties informed the court that they agreed to orders being made to the effect that the statement of claim indorsed on the writ of summons stand as the indorsement of claim; and that non-party access to the writ of summons be restricted pursuant to the RSC O 67B r 5(1)(a) without the prior approval of the Principal Registrar.[15]
[14] RSC O 6 r 3.
[15] ts 5 - 7 (16 June 2021). See also the plaintiff's submissions, par 1.

The evidence

At the hearing of the applications, counsel for the first to fourth defendants read the first and second affidavits affirmed by Mr Raithel,[16] and relied upon the outline of submissions filed on 20 May 2021.[17]
[16] ts 3 and 4 (16 June 2021).
[17] ts 8 (16 June 2021).
Counsel for the fifth defendant read the first and second affidavits sworn by him and relied upon the outline of submissions filed on 14 June 2021.[18]
[18] ts 22 (16 June 2021).
In opposition to the applications, Mr Saffari relied upon his affidavit affirmed on 6 May 2021, and the outline of submissions filed on 9 June 2021, which were to be read with the substituted statement of claim .[19]
[19] ts 23 (16 June 2021),
At the hearing, concern was raised as to pars 20(a) and 26 of the plaintiff's affidavit, which counsel for the fifth defendant characterised as scandalous. The hearing proceeded on the basis that the whole of Mr Saffari's affidavit was read, but an order would be made restricting non-party access to the affidavit pursuant to the RSC O 67B r 5(1)(a) without the prior approval of the Principal Registrar and without the fifth defendant having an opportunity to be heard in relation to any non-party request for access to the same.[20]
[20] ts 25 (16 June 2021).

Mr Saffari's claims

In the indorsement to the writ of summons, Mr Saffari states that he seeks damages 'from the Defendant(s) for Defamation, Intentional Tort, Malicious Prosecution, Deliberate Misconduct, Unlawful Discrimination, Misfeasance in Public Office and Breach of Statutory Duty.[21] In his substituted statement of claim Mr Saffari referred to 'multiple interacting wrongdoings' on the part of the defendants,[22] who are described as 'Concurrent Wrongdoers'.[23] Allegations of malicious prosecution, misfeasance in public office, deliberate misconduct, unlawful discrimination, negligence, and breach of statutory duty are made.

The parties

[21] Writ of summons indorsement, par 17.

[22] Substituted statement of claim, par 3 (under the part titled 'Details of Claim').

[23] Substituted statement of claim, par 1 (under the part titled 'Defendants' Liabilities').

In the substituted statement of claim, Mr Saffari used headings and parts to provide structure to his pleading. The first part was titled 'Parties'. In that part, among other things, he pleaded that:
(a)he lived in Fremantle from June 1999 to May 2000, worked at a restaurant in Fremantle called Marconi Café, and applied for a protection visa in 2002;
(b)the first defendant, Western Australia Police Force (or Western Australia Police),[24] is a Government body able to sue and be sued, and is vicariously liable for the tort of negligence and the tortious misconduct of its members;
(c)the second defendant, the State of Western Australia, is a territorial entity able to sue and be sued, the ultimate employer of the third defendant (Commissioner of Police Dawson) and the fourth defendant (Sergeant Talbot), vicariously liable for the tort of negligence of its employees, and vicariously liable for tortious acts of its employees;
(d)the third defendant, Mr Chris Dawson, is the Commissioner of Police, and is and was at relevant times a Crown official able to sue and be sued, a Crown employee vicariously liable for the conduct of his officers, owes a duty of care to the public, was in control of Mr Saffari's police records, is liable for breaching his duty and duty of care, and is liable for tort in negligence in performance of his duty;
(e)the fourth defendant, Mr Daniel Talbot, is a Sergeant, and was at relevant times a person able to sue and be sued, the officer taking report of an allegation made by the fifth and sixth defendants (Mr Maher Flayfel and Mr Andrew Mackay), owes a duty and a duty of care to Mr Saffari, is liable for breaching his duty and duty of care, is liable for the tort of negligence in the performance of his duty, and is liable for civil wrongs of corruption or malice in the performance of his duty;
(f)the fifth defendant, Mr Maher Fleyfel, is and was at relevant times a person able to sue and be sued, and worked at Marconi Café throughout the term of Mr Saffari's employment; and
(g)the sixth defendant, Mr Andrew Mackay, is and was at all relevant times a person able to sue and to be sued, and worked at Marconi Café throughout the term of Mr Saffari's employment.
[24] While 'Western Australia Police' was named as the first defendant in the writ of summons, the defendant used these terms interchangeably.
Mr Saffari pleaded that after he had worked at Marconi Café for about 8 months and after he terminated his employment at Marconi Café, he relocated to Brisbane.

The allegation

The second part is titled 'The Allegation'. Under that part, Mr Saffari pleaded as follows:
The Allegation
10.Talbot reports that on or about 09 August 2001 Fleyfel made a complaint to Talbot alleging that Mackay told Fleyfel that 3 months ago Saffari told Mackay or someone else that he was going to kill Fleyfel three years into the future.
The particulars provided by Mr Saffari to that plea include that on or about December 2001 Sergeant Talbot charged Mr Saffari with threatening to kill; the charge was kept on the 'Police System' under the responsibility of the Commissioner of Police; Sergeant Talbot obtained a warrant for Mr Saffari's arrest on or about 19 March 2002; Sergeant Talbot and the Western Australia Police refused to drop the charge for 16 years; the charge was discontinued in November 2018; and the Perth Magistrates Court removed the warrant in December 2018.[25]
[25] Substituted statement of claim, particulars to par 10 (under the part titled 'The Allegation').
Mr Saffari pleaded under that part, among other things, that on or about 1 December 2005, the Federal Police in carrying out a routine background check for Visa applicants contacted Sergeant Talbot regarding the warrant; and on or about that date, Sergeant Talbot made a supplementary report, somewhat repeating the same false allegations as against Mr Saffari.[26]
[26] Substituted statement of claim, pars 11 and 12 (under the part titled 'The Allegation').
Mr Saffari at pars 13 to 18 of his pleading described attempts made by him to secure information concerning the warrant, the information secured, and a complaint lodged by him as against Sergeant Talbot.
Among other things, Mr Saffari also pleaded that Sergeant Talbot made reports over 16 years concerning Mr Saffari, 'contradicting previous reports respectively, while making false, defamatory and derogatory remarks'.[27] He also pleaded that Sergeant Talbot maliciously prosecuted and pursued him 'without a shred of evidence with contradictory hearsay as Evidence in Chief'. Further, Sergeant Talbot through unlawful discrimination, repeated the false and defamatory accusations against Mr Saffari on 19 March 2002 and repeated the narrative about the plaintiff having the 'capacity to carry out his threat'.[28]

Damages

[27] Substituted statement of claim, par 19 (under the part titled 'The Allegation').

[28] Substituted statement of claim, pars 20 and 21 (under the part titled 'The Allegation').

The third part is titled 'Damages'. In this part, among other things, Mr Saffari pleaded that he has been gravely injured in his character and reputation, and has suffered substantial hurt and loss of employment and of life opportunities, and has and will continue to suffer loss and irrevocable damage, causing him to suffer depression and a deprivation of enjoyment of life. Mr Saffari states this has occurred by reason of hearsay and false accusation by Mr Fleyfel quoting Mr Mackay; Sergeant Talbot's personally written contradictory and false reports; Sergeant Talbot charging Mr Saffari with a crime using hearsay and asserted facts as evidence in chief; and Sergeant Talbot obtaining a warrant for Mr Saffari's arrest without evidence.[29]
[29] Substituted statement of claim, par 22 (under the part titled 'Damages').
Mr Saffari gave particulars of the harm he says that he suffered as a result of the warrant, which he pleads was aggravated. In the following terms, he complains that the charge and the warrant delayed his permanent residency from 2002 to 2007 preventing him from obtaining employment, studying, learning a new trade or qualifying for any benefits; he was then refused citizenship for 13 years because of the charge, the warrant and false information given to the Department of Immigration by WA Police under the responsibilities of the Commissioner for Police; and his first citizenship application was refused by the Department of Immigration and Multicultural and Indigenous Affairs in 2013 on character grounds.[30]
[30] Substituted statement of claim, par 23 (under the part titled 'Damages').
Under this part, Mr Saffari also pleaded that, among other things:
(a)the third defendant, the Commissioner of Police, owed him a duty and duty of care, and had the responsibility of maintaining and thus providing correct data about his alleged police record; and he breached his duty and duty of care and caused damage to Mr Saffari;[31]
(b)in or about mid 2014 Mr Saffari applied for citizenship a second time, which was refused on character grounds. Mr Saffari says that the charge and the warrant were the basis for refusal;[32]
(c)in or about September 2018, in response to the 'Department of Public Prosecutions', the WA Police and Sergeant Talbot made further defamatory and false allegations against him in the Statement of Material Facts dated 19 September 2019. As to this plea, Mr Saffari set out what he described as particulars of tortious and defamatory conduct;[33]
(d)Sergeant Talbot breached his statutory duty and with WA Police committed perjury in the course of fabricating accusations and evidence up to the year 2018;[34]
(e)on or about September 2018 WA Police refused to discontinue the charge;[35]
(f)on or about 10 October 2018, the WA Prosecuting Services Division was petitioned on Mr Saffari's behalf to discontinue the charge. By way of particulars to the plea, Mr Saffari stated that the charge was discontinued on or about 14 November 2018, and on or about 12 December 2018 the warrant was cancelled by the Perth Magistrates Court;[36]
(g)in or about June 2019 Mr Saffari had become aware that Mr Fleyfel had made further defamatory remarks and false allegations to WA Police;[37] and
(h)on or about 18 February 2021, Mr Saffari's solicitor 'forwarded a statement that Fleyfel had made two calls to his office on Jun 2014' and gave particulars of what he described as the 'Adendorff statement'.[38]

The defendants' liabilities

[31] Substituted statement of claim, pars 24 and 25 (under the part titled 'Damages').

[32] Substituted statement of claim, pars 26 and 27 (under the part titled 'Damages').

[33] Substituted statement of claim, pars 29 and 30 (under the part titled 'Damages').

[34] Substituted statement of claim, par 31 (under the part titled 'Damages').

[35] Substituted statement of claim, par 32 (under the part titled 'Damages').

[36] Substituted statement of claim, par 33 (under the part titled 'Damages').

[37] Substituted statement of claim, par 34 (under the part titled 'Damages').

[38] Substituted statement of claim, par 35 (under the part titled 'Damages').

The fourth part is titled 'The Defendant's Liabilities', and Mr Saffari pleaded that 'the Defendants are Concurrent Wrongdoers', and gives the following particulars:[39]
Particulars
a)The Commissioner is negligent and breached his duty and duty of care;
b)The Commissioner is liable for tort of breaching of his duty and duty of care;
c)Talbot is negligent and in breach of his duty and duty of care (if his actions were unintentional);
d)Talbot is liable for tortious acts of fabricating evidence and false accusations and defamation done in 2001, 2002, 2005, 2008 and 2018 (if his actions were intentional);
e)Fleyfel is liable for deliberately making false accusations, lying to the police, lying in a sworn legal document and making defamatory statements in 2001, 2002 and in 2019; and
f)Mackay makes false accusations and appears to be the catalyst for the forthcoming events.
[39] Substituted statement of claim, particulars to par 1 (under the part titled 'The Defendants' Liabilities').
He also pleaded that the defendants' concurrent actions were a necessary condition of the harm and caused harm to him, and gave particulars of the harm he claims to have suffered.[40]

Details of claim

[40] Substituted statement of claim, par 2 (under the part titled 'The Defendants' Liabilities').

The fifth part is titled 'Details of Claim'. It is under that part that Mr Saffari pleaded that his life opportunities in Australia were effectively destroyed by 'the continued false and defamatory accusations by Fleyfel and Talbot expanding over 16 years, the malicious prosecution, misfeasance, deliberate misconduct, unlawful discrimination and/or negligence of Talbot and the negligence of the Commissioner.[41]
[41] Substituted statement of claim, par 1 (under the part titled 'Details of Claim').
Mr Saffari pleaded that 'through multiple interacting wrongdoings', the defendants 'caused and continue to cause [him] total loss of all he could otherwise achieve in life'.[42]
[42] Substituted statement of claim, par 3 (under the part titled 'Details of Claim').
Mr Saffari seeks the following relief:
1.The sum of $18,000,000 for 18 years on misery comprising:
(a)General Damages of $180,000
(b)Exemplary Damages of $180,000
(c)Compensation Damages of $4,500,000
(d)Punitive Damages of $13,140,000
…

The position of the parties

The position of the first to fourth defendants

As noted above, the first to fourth defendants have common representation and at the hearing of the application, I understood counsel to broadly advance four propositions. First, 'Western Australia Police', named by Mr Saffari as the first defendant, should be removed as a party as it is neither a natural person nor a legally recognised corporate entity. Secondly, the substituted statement of claim discloses no reasonable cause of action; tends to prejudice, embarrass or delay the fair trial of the action; and in parts is scandalous, frivolous and vexatious. Thirdly, the substituted statement of claim is embarrassing as the pleadings obscure the real questions, are ambiguous, appear to raise immaterial or irrelevant issues and fail to confine the issues. In this regard, counsel submitted that it is not clear which of the pleaded facts relate to each cause of action referred to, nor which of the defendants they relate to. Fourthly, certain pleadings should be struck out on the basis that they are scandalous, alleging serious wrongdoing with no factual basis.

The joinder of 'Western Australia Police' as the first defendant

Counsel submitted that the court should order that the first defendant cease to be a party, as 'Western Australia Police' is not a juristic entity which can sue or be sued.[43] That is, the first defendant is not a natural person or a legally recognised corporate entity.[44]
[43] ts 14 (16 June 2016); First to fourth defendants' submissions, pars 20 - 26.
[44] Citing XX v Australian Crime Commission [2014] FCA 177 [9].
Counsel acknowledged that the right to sue and liability to be sued may be conferred by statute, either expressly or by implication.[45] Further, counsel accepted that there may be a body which has sufficient features of a corporation to be recognised as having an artificial legal personality, despite not being incorporated.[46] However, counsel submitted that neither the 'Western Australian Police' nor the 'Western Australian Police Force' are separate legal entities. Rather, the Western Australian Police Force is a department of the State.[47] Further, the first defendant is not expressly incorporated by legislation and there is nothing to suggest that it has corporate status or was intended to have separate legal personality such that it could sue or be sued in its own name.
[45] Citing Taff Vale Railway Co v Amalgamated Society of Railway Servants [1901] AC 426.
[46] Citing Chaff and Hay Acquisition Committee v JA Hemphill and Sons Pty Ltd (1947) 74 CLR 375, 396 - 397; XX v Australian Crime Commission [9], [15]; Church of Scientology Inc v Woodward [1982] HCA 78; (1982) 154 CLR 25, 56; Williams v Hursey (1959) 103 CLR 30, 52.
[47] Established and designated pursuant to s 35(1) of the Public Sector Management Act 1994 (WA); see the First to fourth defendants' submissions, par 24, ft 34.
Counsel submitted that it is not capable of suing or being sued, and sought that the court exercise the power under the RSC O 18 r 6(2)(a) to order that the first defendant cease to be a party to the proceeding.

The third defendant - Mr Chris Dawson

Mr Saffari joined Mr Dawson as the third defendant to the proceeding. It appears that Mr Dawson was joined to the proceeding solely in his capacity as the Commissioner of Police.
As noted above, by the substituted statement of claim, Mr Saffari asserted that the Commissioner of Police owed a duty of care to the public and is liable for breaching that duty. Further, I understand the effect of Mr Saffari's pleading to be that the Commissioner of Police is vicariously liable for the conduct of his officers;[48] that the Commissioner provided documents to the Department of Immigration and Border Protection falsely accusing Mr Saffari; that the Commissioner of Police had the responsibility for maintaining information and providing correct data; and that the Commissioner of Police breached his duty of care.[49]
[48] Substituted statement of claim, par 5 (under the part titled 'Parties').
[49] Substituted statement of claim, pars 23 - 25 (under the part titled 'Damages'), as described in the first to fourth defendants' submissions, par 14.
Counsel noted that the claim for negligence as against the Commissioner of Police lay outside of the scope of the indorsement to the writ, and Mr Saffari requires leave to amend his writ to include such a claim.
While the existence of a duty of care is asserted in the pleading, counsel complained that Mr Saffari did not plead facts that Mr Saffari says gave rise to a claim in negligence.
Counsel noted that Mr Saffari did not plead that the Commissioner of Police knew that any information provided was false. Further, it was submitted that there is no basis on which to suggest that the Commissioner of Police owed a duty to Mr Saffari. Indeed, counsel submitted that the imposition of such a duty would be inconsistent with the functions or other duties of the Commissioner of Police.[50]
[50] First to fourth defendants' submissions, par 17 and ft 27; ts 13 - 14 (16 June 2021).
Counsel referred to Mr Saffari's plea that the Commissioner of Police is vicariously liable for the actions of his officers and the fourth defendant (Sergeant Talbot), or any officer who allowed the information to be sent to the Department of Immigration and Border Protection.[51]
[51] Substituted statement of claim, par 25(c); First to fourth defendants' submissions, par 18.
Counsel submitted that the person who, or entity which, appoints a police officer is not vicariously liable for the acts that officer committed in the officer's discretion and pursuant to the officer's statutory and common law duties.[52] Counsel further submitted that there is nothing in Mr Saffari's pleading to suggest that the Commissioner of Police is, in the circumstances, vicariously liable for the actions of Sergeant Talbot or any other police officer.[53]

The fourth defendant - Sergeant Talbot

[52] First to fourth defendants' submissions, par 19, citing Albrecht v Commissioner of Police [2015] WASC 248 [20]; Enever v The King (1906) 3 CLR 969, 976 ‑ 977, 993 ‑ 994; Pense v Hemy [1973] WAR 40, 42 ‑ 43; Mickelberg v The State of Western Australia [2007] WASC 140 [120], [129]; Calabro v The State of Western Australia [2012] WASC 418 [29]. In Albrecht v Commissioner of Police [22], Pritchard J also noted that there is no liability that is sheeted home to the Commissioner of Police for the conduct of police officers, pursuant to s 137(5) of the Police Act.

[53] First to fourth defendants' submissions, par 19.

Counsel submitted that Mr Saffari's pleading as framed does not give rise to any cause of action against Sergeant Talbot.[54]

Malicious prosecution or misfeasance in public office

[54] ts 8 - 10 (16 June 2021); First to fourth defendants' submissions, par 12.

Counsel identified the following plea as being central to the allegations made by Mr Saffari as against Sergeant Talbot:[55]
Maliciously prosecuted and pursued the plaintiff without a shred of evidence and with contradictory hearsay as evidence‑in‑chief.
[55] ts 9 (16 June 2021), referring to the par 20 of the substituted statement of claim.
However, counsel complained that Mr Saffari did not plead facts that might conceivably give rise to relief for malicious prosecution or misfeasance in public office. Although a common element of both actions is that the defendant acted with malice, Mr Saffari has not particularised the facts he seeks to rely upon to establish that Sergeant Talbot acted with malice.[56]
[56] First to fourth defendants' submissions, par 12(c), referencing the RSC O 30 r 13.
Counsel noted that for the tort of malicious prosecution, it is necessary to show that a defendant in initiating or maintaining proceedings acted 'maliciously'.[57] An improper purpose in the prosecutor in instituting criminal proceedings must be shown, and the improper purpose must be the sole or dominant purpose of the prosecutor.[58] While malice can be proven by inference, its proof as a condition of the mind, is not a matter of conjecture or suspicion.[59]
[57] First to fourth defendants' submissions, par 12(d), citing A v The State of New South Wales [2007] HCA 10; (2007) 230 CLR 500 [1], which decision is referred to in Calabro v The State of Western Australia (No 3) [2014] WASC 84 [40].
[58] First to fourth defendants' submissions, par 12(d), citing A v The State of New South Wales [55], [91].
[59] First to fourth defendants' submissions, par 12(d), citing A v The State of New South Wales [93].
In this regard, counsel noted that on Mr Saffari's own case, Sergeant Talbot received and investigated a complaint made by two persons that Mr Saffari had made threats. In the absence of something more, counsel submitted that Sergeant Talbot's actions were inconsistent with a claim of malicious prosecution. Counsel noted that Mr Saffari had pleaded that Sergeant Talbot was acting on complaints made by Mr Fleyfel, and that there were no facts pleaded which suggested an ulterior or other purpose on the part of Sergeant Talbot in producing a report of the complaint made by Mr Fleyfel, or charging Mr Saffari with the commission of an offence.[60]
[60] ts 9 (16 June 2021).
In relation to Sergeant Talbot's alleged failure to drop or cancel the charges and warrant against Mr Saffari, counsel submitted that nowhere is it pleaded that Mr Saffari sought to have the charges dropped prior to 2018, or that the charges should be dropped and the arrest warrant cancelled. It was only pleaded that in August 2018 Mr Saffari's lawyers asked the Director of Public Prosecutions to discontinue the charges.[61] Counsel submitted that the Western Australia Police's refusal to drop the charge is the only statement that could perhaps support a malicious prosecution allegation, but Mr Saffari has not pleaded an improper purpose in instituting or carrying on the charge.

Negligence

[61] Described by the plaintiff in the substituted statement of claim as the 'Department of Public Prosecutions'.

Mr Saffari pleaded that Sergeant Talbot was 'negligent and in breach of his duty and duty of care (if his actions were unintentional)'.[62]
[62] Substituted statement of claim, par 1(c).
First, counsel for Sergeant Talbot complained that a claim in negligence is outside of the scope of the indorsement to the writ, and leave to amend the writ is required to include claims outside of its scope.
Further, counsel submitted that Mr Saffari did not plead facts that might conceivably give rise to relief for negligence. The rules of pleading require a statement of claim to plead the factual elements essential to the existence of the duty of care on which Mr Saffari relies.[63] While Mr Saffari in his pleading asserted that a duty was owed, counsel noted that Mr Saffari did not plead a factual basis for the existence of a duty of care in what would be a novel case where there is no recognised duty.[64] In this regard, counsel submitted that the imposition of a duty of care on a police officer, owed to an accused or suspect, would be inconsistent with the role and functions of police when investigating crime.[65] Further, there is no specific or identifiable instance of any breach pleaded, meaning there is no reasonable cause of action for negligence.[66]

Defamation

[63] The fourth defendant relied upon Esanda Finance Corporation Ltd v Peat Marwick Hungerfords [1997] HCA 8; (1997) 188 CLR 241, 252, 258, 266, 289.

[64] Citing Graham Barclay Oysters Pty Ltd v Ryan [2002] HCA 54; (2002) 211 CLR 540 [149].

[65] Citing Sullivan v Moody [2001] HCA 59; (2001) 207 CLR 562 [30], [55], [57], [60]; Tame v The State of New South Wales [2002] HCA 35; (2002) 211 CLR 317 [24].

[66] ts 11 (16 June 2021).

Counsel referred to the RSC O 6 r 2, which provides that in actions for defamation by publication, the indorsement must state sufficient particulars to enable the publications in respect of which the action is brought to be identified. Counsel submitted that Mr Saffari failed to satisfy the same.
Counsel suggested that it appears to be alleged that the defamation arose from Sergeant Talbot allegedly making a report to the Federal Police and publishing a Statement of Material Facts. However, counsel complained that the plaintiff had not sufficiently pleaded the words or matters complained of, the particular publications, or any facts to establish when the publication was made available for comprehension by the reader, failing to satisfy the RSC O 6 r 2. Counsel also noted that to the extent any purported 'publications' were made before 29 December 2018 (that is, more than a year before the writ was filed), the claims are pressed outside the applicable limitation period.[67]
[67] The defendant relies upon Limitation Act 2005 (WA) s 15; First to fourth defendants' submissions, par 12(f).
Counsel submitted that for these reasons, any claims related to defamation should also be struck out.[68]

The position of the fifth defendant - Mr Fleyfel

[68] ts 12 (16 June 2021).

Counsel for Mr Fleyfel summarised Mr Saffari's pleaded case as against Mr Fleyfel as follows:[69]
7.… Mr Fleyfel:
a)has made various false allegations and accusations against Mr Saffari;
b)has lied to police;
c)has lied in a sworn legal document: and
d)has defamed Mr Saffari in 2001, 2002 and 2019.
(Footnotes omitted.)
[69] Fifth defendant's submissions, par 7.
Through counsel, Mr Fleyfel complained that in the substituted statement of claim, the plaintiff failed to identify the material facts necessary for the purposes of formulating a complete cause of action; disclose an arguable cause of action as against Mr Fleyfel; and does not apprise Mr Fleyfel of the case that he has to meet.[70]

No reasonable cause of action

[70] Fifth defendant's submissions, par 5.

Counsel for Mr Fleyfel noted that 'reasonable' is defined as 'reasonable according to law', and if the facts pleaded conceivably give rise to relief then the cause of action is deemed reasonable.[71] Pleadings that fail to plead a critical element of a cause of action or fail to plead facts which are capable of constituting a cause of action, will fail to disclose a reasonable cause of action. Mr Saffari is required to plead the material facts in some sort of coherent order so that the reader, in this case the defendant and the court, can understand the case.[72]
[71] Fifth defendant's submissions, par 11, citing David Clarke Air Conditioning Pty Ltd v Quann [2016] WASC 73 [14]; Culleton v Permanent Custodians Ltd [30]; Automotive, Food, Metals, Engineering, Printing & Kindred Industries Union of Workers Western Australia Branch v Bell-A-Like Rottnest Pty Ltd [2005] WASCA 157 [54].
[72] Fifth defendant's submissions, par 12.
Counsel noted that Mr Saffari alleges that Mr Fleyfel is liable for defamation on account of the statement made by Mr Fleyfel in 2019,[73] but the paragraphs which relate to an alleged defamatory statement are insufficient to give rise to a reasonable cause of action against Mr Fleyfel. Counsel contended the pleading is liable to be struck out as:
(a)the facts giving rise to the claim occurred more than twelve months prior to the commencement of the legal proceeding;
(b)the material facts and particulars are otherwise deficient to substantiate an action in defamation; and
(c)there is a failure to address the issues with bringing such a claim in circumstances that section 28 of the Defamation Act 2005 (WA) applies.
[73] Substituted statement of claim, par 34 (under the part titled 'Damages').
Counsel also submitted that the publications were not themselves defamatory. In this regard, counsel noted that Mr Fleyfel only reported to police what he had heard, and that it is unclear what the pleadings allege to be false and defamatory.[74] Counsel submitted that in all of the circumstances, the claim in defamation is hopeless and out of time, and should be struck out and dismissed.

Prejudice, embarrass or delay the fair trial of the action

[74] ts 19, 21 (16 June 2021).

Counsel further submitted that pursuant to the RSC O 20 r 19(c), the entirety of the substituted statement of claim as it relates to Mr Fleyfel should be struck out as it may prejudice, embarrass or delay the fair trial of the action. Alternatively, counsel sought that pars 22(a), 30(b), 4, 35, 1(c), and 1 be struck out.[75]
[75] Fifth defendant's submissions, par 14, ft 24 - 26.
Counsel submitted that a pleading may prejudice or delay the fair trial of the action where the pleadings are ambiguous or not reasonably intelligible, they fail to confine the issues or state the case of the party in question with reasonable particularity, or they raise a case in terms which are simply too general.[76]
[76] The fifth defendant referred to Hart-Roach v Public Trustee (Unreported, WASC, Library No 980044, 11 February 1998); Kidd v Artus [2013] WASC 264 [26]; David Clarke Air Conditioning Pty Ltd v Quann [15].
Counsel further submitted that pars 30, 34 and 36 of the substituted statement of claim, where Mr Saffari pleaded that Mr Fleyfel made defamatory and false allegations, are deficient as they do not provide sufficient particulars or material facts to enable Mr Fleyfel to determine the content of the alleged false allegations to allow him a reasonable opportunity to answer to any of the allegations that defamatory statements were made in 2001, 2002 and 2019.
Counsel also complained that Mr Saffari does not sufficiently plead the timeframe or the words or matters complained of, nor has he provided any particular document in which it is alleged Mr Fleyfel lied either to the police or in a sworn document. Counsel therefore submitted that the relevant plea should be struck out as Mr Saffari has not provided a statement of his case with sufficient clarity to allow Mr Fleyfel an opportunity to meet it.[77]

Scandalous, frivolous or vexatious

[77] Fifth defendant's submissions, pars 20 - 22, referring to the substituted statement of claim, par 1(e) (under the part titled 'The Defendants' Liabilities').

Counsel also submitted that various paragraphs within the substituted statement of claim are scandalous. By the substituted statement of claim, Mr Saffari alleged serious wrongdoing by Mr Fleyfel without providing any evidence to support the allegations. Where Mr Fleyfel's claim in defamation related to the statutory declaration signed by Mr Fleyfel in 2014, counsel submitted that the statutory declaration, a copy of which is annexed to Mr Malone's second affidavit and marked NFM2, makes no allegation against Mr Saffari and is not defamatory.
Accordingly, where the allegations in the substituted statement of claim relate to the statutory declaration signed by Mr Fleyfel, counsel submitted those allegations should be struck out on the grounds they are scandalous, as the words used in the statutory declaration do not support the contention by Mr Saffari that Mr Fleyfel lied in a sworn legal document, nor are the allegations supported by evidence.

Removal of the fifth defendant from the action

Counsel pressed for the court to order that Mr Fleyfel cease to be a party to the proceeding, pursuant to the RSC O 18 r 6(2)(a) or alternatively O 2 r 1.[78] Counsel otherwise adopted the submissions made by counsel on behalf of the first to fourth defendants.[79]
[78] RSC O 18 r 16(2)(a).
[79] ts 17 (16 June 2021).

Mr Saffari's position

At the hearing of the application, Mr Saffari relied upon his written responsive submissions and affidavit filed in opposition to the applications.[80] By his written submissions Mr Saffari sought to address the submissions filed in support of the applications of the first to fourth defendants. They did not appear to expressly address the submissions made on behalf of Mr Fleyfel.
[80] ts 23 - 24 (16 June 2021).
In short, Mr Saffari submitted that his pleading was sufficiently clear, understood by the defendants, and disclosed a cause of action against them. He appears to have conceded that the pleading did not clearly state which defendant is liable for which tort, suggesting that the pleading may be 'minorly amended (with the leave of the Court) to reflect the clarification of this issue'.[81]
[81] Plaintiff's submissions, pars 22 - 23.
I carefully considered the substituted statement of claim and the submissions made by Mr Saffari, together with his affidavit made in opposition to the applications. It is convenient to address Mr Saffari's submissions as I set out my reasons for decision below.

Disposition

Extension of time

Mr Saffari complained that Sergeant Talbot and Mr Fleyfel were in default of 'every procedural [requirement], including lodging a Defence, and discovery from Talbot, until they obtained free legal representation and now want a summary dismissal'.[82] It is not clear from the papers filed whether Mr Saffari opposed the extension of time sought on behalf of the defendants. In the circumstances, I have proceeded on the basis that the extension of time was opposed.
[82] Plaintiff's submissions, par 4(a)(i).
In his first and second affidavits, Mr Raithel deposed to the circumstances which contributed to delay in the filing of applications on behalf of the first to fourth defendants. Mr Malone deposed in his affidavits to the circumstances which contributed to delay in the filing of an application on behalf of Mr Fleyfel.
I have weighed in the balance the following. First, the circumstances deposed to by Mr Raithel and Mr Fleyfel disclose no deliberate inadvertence or carelessness on the part of the defendant applicants or their representatives. Secondly, the applications proceeded on the basis that they each referenced to the substituted statement of claim filed on 13 April 2021, with the consent of Mr Saffari. Thirdly, Mr Saffari raised no issue of prejudice.
In the circumstances, I am satisfied that the extension of time is warranted and given the pleading issues, serves the interests of justice.

Is 'Western Australia Police' a proper party?

As to the first defendant, Mr Saffari maintained that 'Western Australia Police' is a proper party to the proceeding. I note that in the papers filed, Mr Saffari refers to 'Western Australia Police' and 'Western Australia Police Force' interchangeably.
At par 20 and 21 of his submissions, Mr Saffari responded to the submissions made by counsel for the first to fourth defendants for an order removing the first defendant as a party to the proceeding pursuant to the RSC O 18 r 6(2)(a). At par 20(b), Mr Saffari submitted that:[83]
The Western Australia Police Force is part of the executive branch of the government and, like the Commonwealth, is a legal person that is an employer, contractor, holder of funds, has the capacity to be in legal relationships and of being party to a claim-duty and power-liability.
[83] Citing Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Queensland Rail [2015] HCA 11; (2015) 256 CLR 171 [16].
Upon weighing the submissions made, I am satisfied that the first defendant should be removed as a party to the proceeding. In so doing, I considered whether either the 'Western Australia Police' or the 'Western Australia Police Force' were juristic entities.[84]
[84] XX v Australian Crime Commission [9], referencing Young J in his book Declaratory Orders (2nd ed, Butterworths, 1984) [1008]; First to fourth defendants' submissions, par 22.
I accept that the right to sue and liability to be sued may be conferred by statute either expressly or by implication.[85]
[85] Taff Vale Railway Co v Amalgamated Society of Railway Servants; First to fourth defendants' submissions, par 23.
The Police Act is an Act to consolidate and amend the law relating to the police in Western Australia.[86] There are numerous references throughout the Police Act to the 'Police Force'. While capitalised, 'Police Force' is not a term defined in that Act.
[86] Long title to the Police Act.
The WA Police Force is the named used to refer to the Police Service, which from July 1997 was the name given to the Police Department established under the provisions of the Public Service Act 1904 (WA) on 16 December 1964.[87] The WA Police Force is a department within the Public Service. Neither the Police Act nor the Public Sector Management Act provide that the Police Force is an incorporated body. The right to sue and liability to be sued were not conferred on the Police Force expressly by statute.
[87] See also Tey v Poltz [14], and the Alternation of Statutory Designations Order (No 2) 1997 made under the Alteration of Statutory Designations Act 1974 (WA).
Having regard to the Police Act, I am also satisfied that the right to sue and liability to be sued were not conferred on the Police Force by implication. As was observed by Jenkins J in Tey v Plotz [2010] WASC 163 [13]:
The Police Act 1892 (WA) provides for the appointment of the commissioner of police, commissioned police officers and non-commissioned officers. The commissioner of police is charged with the general control and management of the 'police force' of Western Australia: Police Act s 5 - 7. Throughout the Police Act, the police who are under the control of the commissioner of police are uniformly referred to, collectively, as the 'police force'. There is no reference to a body known as WA Police. The Act also refers to the appointment of other persons, such as special constables, and provides that these people are not members of the police force. However, the Police Act does not provide that the broader group of people is the WA Police.
The Police Act provides that the Commissioner of Police may, from time to time, with the approval of the relevant Minister, frame rules, orders, and regulations for the general government of the members of the Police Force. While various powers and obligations are conferred on the Commissioner of Police and members of the Police Force (among others) under the Police Act, no power or authority is conferred on the Police Force under that Act.

I am satisfied that neither 'Western Australia Police', nor the 'Western Australia Police Force' are bodies with sufficient features of a corporation to be recognised as having an artificial legal personality, despite not being incorporated. The right to sue and liability to be sued were not conferred on the Police Force by implication.
In these circumstances, I am not satisfied that either is a juristic person or capable of suing or being sued, and it is appropriate that the first defendant be removed as a party to the proceeding.

Do the pleadings disclose a reasonable cause of action?

Mr Saffari maintained that the pleading disclosed a 'reasonable cause of action against all Defendants and establishes essential ingredients of a defence', and submitted that the defendants' applications ought be dismissed.[88] I understood him to contend that the submissions filed on behalf of the first to fourth defendants, read as a whole, indicate that the facts of his case are within the defendants' knowledge.[89] The only concession made by Mr Saffari was that he acknowledged that the substituted statement of claim may not have clearly defined which defendant is alleged to be liable for which tort.[90] To this end, Mr Saffari submitted that the substituted statement of claim would be 'minorly amended (with leave of the Court) to reflect the clarification of this issue'.[91]
[88] Plaintiff's submissions, par 22.
[89] Plaintiff's submissions, par 19. See also pars (c) of the introduction to the plaintiff's submissions and pars 3(a)(i) and 5.
[90] Plaintiff's submissions, par 23.
[91] Plaintiff's submissions, par 23(a).
Mr Saffari also sought to address the authorities which concern pleadings and strike out applications. Citing Kimberley Downs Pty Ltd v The State of Western Australia (Unreported, WASC, Library No 6414, 25 August 1986), Mr Saffari submitted that the decision emphasised the administration of justice and the need for procedural fairness to be afforded to self-represented litigants in overcoming so many hurdles in the form of unfamiliar and complicated administrative steps.[92] Mr Saffari also referred to and relied upon Culleton v Permanent Custodians Ltd[34] (reproduced above), and the observation of Allanson J that:
It is well settled that leniency may be required in relation to compliance with the procedural rules. And the court will approach an application to summarily determine a claim brought by a self-represented litigant with special care, 'to ensure that within the possibly ill-expressed and unstructured statement of claim, there is no viable cause of action'.
[92] Plaintiff's submissions, par 2(a), which was expanded upon at par 3(a) to (d).
I note that in the writ of summons, Mr Saffari claimed against 'the Defendants' relief 'for Defamation, Intentional Tort, Malicious Prosecution, Deliberate Misconduct, Unlawful Discrimination, Misfeasance in Public Office and Breach of Statutory Duty'. In the substituted statement of claim, Mr Saffari pleaded that 'the Defendants are Concurrent Wrongdoers under the rubric of global claim',[93] the claims included claims in negligence.
[93] Substituted statement of claim, par 5 (under the part titled 'Details of Claim'). See also par 1 (under the part titled 'The Defendants' Liabilities').
As was acknowledged by Mr Saffari, I find that the pleading does not adequately identify which cause of action is raised against which defendant. I also find that it does not identify the material facts constituting each such cause of action.
I accept that pleadings that fail to plead a critical element of a cause of action or fail to plead facts which are capable of constituting a cause of action, will fail to disclose a reasonable cause of action. While I am cognisant of the difficulty faced by Mr Saffari in pleading his claims, in its current form, the pleading does not disclose a reasonable cause of action as against any defendant, and ought to be struck out. Other issues are also evident, which I note below.

As against the State of Western Australia

The plea as against the State of Western Australia is very scant. In par 4 of the substituted statement of claim in the part titled 'Parties', Mr Saffari pleaded that:
The Second Defendant State of Western Australia (the Crown) is and was at relevant times:
a)a territorial entity able to sue and be sued;
b)the ultimate employer of the Third Defendant;
c)the ultimate employer of the Fourth Defendant;
d)vicariously liable for the tort of negligence of its employees; and
e)vicariously liable for tortious acts of its employees regardless of whether the act was in performance of an independent function conferred upon the employee by statute.
The substituted statement of claim also included a number of pleadings as against 'the Defendants'. They are:
(a)'The Defendants are Concurrent Wrongdoers';[94]
(b)'The Defendants' concurrent actions were a necessary condition of the harm and caused harm to Saffari';[95]
(c)'The concurrent actions of the Defendants caused Saffari Personal Injury of mental Harm as life and life opportunities slipped away';[96]
(d)'The Defendants, through multiple interacting wrongdoings, caused and continue to cause Saffari total loss of all he could otherwise achieve in life';[97] and
(e)'The Defendants are Concurrent Wrongdoers under the rubric of global claim'.[98]
[94] Substituted statement of claim, par 1 (under the part titled 'The Defendants' Liabilities').
[95] Substituted statement of claim, par 2 (under the part titled 'The Defendants' Liabilities').
[96] Substituted statement of claim, par 2 (under the part titled 'Details of Claim').
[97] Substituted statement of claim, par 3 (under the part titled 'Details of Claim').
[98] Substituted statement of claim, par 5 (under the part titled 'Details of Claim').
There is no further reference made to the actions or obligations of the State. To the extent that particulars were provided for each of the pleas reproduced at [102] above, the alleged actions or omissions of Sergeant Talbot, among others, are described. Save for the plea found in par 4 of the substituted statement of claim, there is no plea that seeks to sheet home to the State the conduct or omissions of Sergeant Talbot or any other defendant.
To the extent that Mr Saffari's claim was made against the Commissioner of Police or a police officer, for which he maintains the State is effectively made vicariously liable, the substituted statement of claim is deficient. Mr Saffari has failed to adequately plead any claim as against the Commissioner or Police or Sergeant Talbot (or any other defendant), and the pleading is confusing. (The deficiencies in the pleaded claims as against the Commissioner and Sergeant Talbot are discussed in more detail below.)
Further, a claim in negligence as against any defendant is outside of the scope of the indorsement to the writ, and leave to amend the writ is required to include a claim for the tort of negligence on the part of the Commissioner of Police, Sergeant Talbot or otherwise, for which the State might be alleged to be vicariously liable.
In its current form, the pleading does not disclose a reasonable cause of action as against the State, and the claim against the State ought to be struck out.
Turning to consider whether Mr Saffari should be given leave to amend the pleading in relation to the State, I note that at common law, the State is not vicariously liable for the acts of members of the Police Force. Such vicarious liability on the part of the State can arise, if at all, under s 137 of the Police Act.[99]
[99] Calabro v State of Western Australia (No 3) [26].
Section 136 of the Police Act provides as follows:
136.Terms used in s 137 and 138 -
(1)In sections 137 and 138, member of the Police Force means a person appointed under Part I, III, IIIA or IIIB.
(2)In sections 137 and 138, a reference to the doing of anything includes a reference to an omission to do anything.
For the purposes of s 137, the Commissioner of Police and Sergeant Talbot are members of the Police Force.
Section 137 of the Police Act concerns liability for the actions of members of the Police Force, and subsection (3) provides that:
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.
Section 137(5) of the Police Act provides that:
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.
…
Section 137(6) provides that the Crown's liability under subsection (5) does not extend to exemplary or punitive damages.
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.
It is appropriate that Mr Saffari be given leave to replead his claim as against the State, subject to Mr Saffari securing leave to amend the writ (to the extent that the claim against the State is a claim in negligence).

As against the Commissioner of Police

While the pleading as against the third defendant is difficult to follow, I understand that Mr Safari has brought a claim against Mr Dawson solely in his capacity as the Commissioner of Police.

Vicarious liability

I understand from par 5(b) of the substituted statement of claim under the part titled 'Parties', that Mr Saffari claims that the Commissioner of Police is vicariously liable for the conduct of police officers. In response to counsel's submissions, Mr Saffari submitted as follows:[100]
Paragraph 19 of the [first to fourth defendants' submissions] appears to be misdirected, as the actions of Talbot must be tested in Court to establish either his malice or his negligence in breach of his duty, where either the Commissioner and/or the Crown are rendered to be vicariously liable, or Talbot is liable whether he is then indemnified by the Crown.
[100] Plaintiff's submissions, par 16.
There are a number of difficulties with the claim as pleaded against the Commissioner of Police. I accept the submission made by counsel for the Commissioner that first, to the extent that Mr Saffari's claim is made in tort as against a police officer for which the Commissioner of Police is alleged to be vicariously liable, the substituted statement of claim is deficient. Mr Saffari has failed to adequately plead any cause of action as against Sergeant Talbot (or any other defendant), and the pleading is confusing.
Secondly, I also accept counsel's submission that to the extent that Mr Saffari's claim is made in tort as a claim in negligence against a police officer for which the Commissioner of Police is alleged to be vicariously liable, a claim in negligence is outside of the scope of the indorsement to the writ, and leave to amend the writ is required to include a claim made for the tort of negligence.
However, of greater moment is that at common law, the person who, or entity which, appoints a police officer is not vicariously liable for the acts of that officer committed in the officer's discretion and pursuant to the officer's statutory and common law duties.[101] That is, at common law, neither the State nor the Commissioner of Police are vicariously liable for the acts of Sergeant Talbot.
[101] Pritchard J in Albrecht v Commissioner of Police [20], citing Enever v The King (976 -977, 993 - 994); see also Pense v Hemy (42 - 43); Mickelburg v The State of Western Australia [120], [129] and Calabro v The State of Western Australia [29].
Section 137 makes the State vicariously liable for the acts of members of the Police Force done without corruption or malice. The Police Act does not create vicarious liability on the part of the Commissioner of Police.
As was observed by Pritchard J in Albrecht v Commissioner of Police at [21], if a cause of action is to be pursued against a police officer, it is necessary to also take account of the Police Act, and there is no liability that is sheeted home to the Commissioner of Police for the conduct of police officers pursuant to s 137 of the Police Act. Instead, if a police officer committed a tort as a result of engaging in conduct without corruption or malice in the performance of that police officer's duties, the State of Western Australia is effectively made vicariously liable for that tort by virtue of s 137(5) of the Police Act, not the Commissioner of Police.[102]
[102] Albrecht v Commissioner of Police [22].
Having regard to the common law principles, and to s 137 of the Police Act, I am satisfied that there is no possible basis for sheeting home liability to the Commissioner of Police for the alleged actions of Sergeant Talbot, in the performance of his duties without corruption or malice. If the alleged torts were committed with corruption or malice, s 137 of the Police Act has no application. Instead, the court will apply the common law principles which, as outlined above, will render neither the State nor the Commissioner of Police vicariously liable for the acts of a police officer.[103]

Direct liability

[103] See the decisions summarised by Newnes J in Mickelburg v The State of Western Australia [115] - [140].

I understand that Mr Saffari's claim as against the Commissioner of Police is not limited to the claim that he is vicariously liable for the conduct of Sergeant Talbot. Mr Saffari pleaded that the Commissioner of Police owed a duty of care to the public and that he breached that duty.
The pleading as framed was difficult to follow. Mr Saffari pleaded at par 24 of the substituted statement of claim that the Commissioner of Police had the responsibility for maintaining information and providing correct data.[104] Within particulars, he stated that 'the relationship between Saffari and the tortfeasor Commissioner is that the Commissioner is ultimately responsible for maintaining and controlling information related to Saffari without Saffari's control'.[105] By way of particulars to another plea, Mr Saffari stated that that the Commissioner of Police provided documents to the Department of Immigration and Border Protection falsely accusing Mr Saffari.[106]
[104] Under the part titled 'Damages'.
[105] Substituted statement of claim, particular (a) to par 25 (under the part titled 'Damages').
[106] Substituted statement of claim, particular (b) to par 23 (under the part titled 'Damages').
Again, the pleading as framed does not disclose a reasonable cause of action as against the Commissioner of Police, as Mr Saffari has 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. Paragraphs 24 and 25 of the pleading do not suffice.[107] However, the particulars given suggest that there is the potential for the development of Mr Saffari's case through amended pleadings and evidence.
[107] Substituted statement of claim, pars 24 and 25 (under the part titled 'Damages').
I accept counsel's submission that a claim in negligence is outside of the scope of the indorsement to the writ, and leave to amend the writ is required to include such a claim. While counsel for the Commissioner of Police did not raise s 137(3) of the Police Act in this context, I understand that protection from personal liability would also be extended to the Commissioner for an action in tort for anything done, without corruption or malice, in the performance of the Commissioner's functions.

Conclusion

In the circumstances, I am satisfied that the substituted statement of claim as it concerns the Commissioner of Police should be struck out.
Par 5(b) of the substituted statement of claim should be struck out, without leave to replead this claim. Vicarious liability on the part of the Commissioner of Police for the actions or omissions of Sergeant Talbot is not arguable.
However, it is appropriate that Mr Saffari have leave to replead a claim concerning the acts or omissions of the Commissioner of Police. Some leniency should be afforded Mr Saffari to re-plead the claim, within the bounds of the common law and s 137 of the Police Act. At this time, no order will be made removing the third defendant as a party to the proceeding pursuant to the RSC O 18 r 6(2)(a).

As against Sergeant Talbot

Again, while the pleading as against Mr Talbot is difficult to follow, I understand that Mr Safari has brought a claim against Mr Talbot solely in his capacity as a member of the Police Force.
Mr Saffari has failed to adequately plead any claim as against Sergeant Talbot in defamation, malicious prosecution or otherwise, and I accept counsel's submission that the pleading as framed does not give rise to any cause of action against Sergeant Talbot. I expand upon my reasons for striking out the pleading as against Sergeant Talbot below.

Negligence

At par 6 of the substituted statement of claim, Mr Saffari pleaded that Sergeant Talbot 'owes a duty and a duty of care to the plaintiff', is liable for breaching his duty and duty of care, is liable for the tort of negligence in the performance of his duty, and is liable for civil wrongs of corruption or malice in the performance of his duty.
The pleading as framed does not give rise to a cause of action as against Sergeant Talbot in negligence. The complaints raised by counsel for Sergeant Talbot summarised at [61] to [63] above are justified.
The plaintiff has not pleaded a factual basis for the existence of a duty of care and therefore the pleading is defective and incapable of sustaining a suggestion that Sergeant Talbot owed Mr Saffari a duty of care.[108] Nor has Mr Saffari pleaded a specific or identifiable instance of a breach of duty. The pleading at par 31 of the substituted statement of claim that Sergeant Talbot 'breached his statutory duty', does not suffice, particularly in circumstances where the statutory duty is not identified.
[108] Esanda Finance Corporation Ltd v Peat Marwick Hungerfords (252, 258, 266, 289).
Again, I accept that a claim in negligence is outside of the scope of the indorsement to the writ, and leave to amend the writ is required to include a claim made for the tort of negligence as against Sergeant Talbot.
Finally, I note that while counsel for Sergeant Talbot did not raise s 137(3) of the Police Act in this context, I understand that protection from personal liability would also extend to Sergeant Talbot by operation of that section. By the operation of s 137(3), an action in tort does not lie against a member of the Police Force for anything 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.
In the circumstances, I am satisfied that the substituted statement of claim as it concerns Sergeant Talbot and a claim in negligence should be struck out.

Malicious prosecution

The pleading as framed does not give rise to a cause of action as against Sergeant Talbot for malicious prosecution. I accept that the complaints raised by counsel for Sergeant Talbot summarised at [56] to [60] above constitute grounds for concluding that the pleadings do not disclose a reasonable cause of action against Sergeant Talbot for malicious prosecution.

To constitute malice, the dominant purpose of Sergeant Talbot must be a purpose other than the proper invocation of the criminal law.[109] Mr Saffari does not identify a malicious purpose for the actions of Sergeant Talbot in laying charges against him.

Defamation

[109] A v The State of New South Wales [91].

Among the complaints agitated on behalf of Sergeant Talbot, counsel submitted that Mr Saffari had failed to state sufficient particulars to enable the publications in respect of which the action is brought to be identified.
I understood Mr Saffari to respond to the complaint concerning lack of identification in his submissions at pars 7 and 9. At par 7, Mr Saffari submitted:
7.Paragraph 11(e) of the [first to fourth defendants' outline of submissions] is essentially about Saffari not providing evidence of his claims, but Saffari's understanding of the RSC is that no evidence is to be presented at this stage.
a)The documents mentioned at paragraph 11(e) were previously provided by Saffari to all Defendants attached to a final letter of demand prior to these proceedings, notwithstanding that SSO can access the documents through their own clients whom in fact provided the documents to Saffari through FOI requests, although after several refusals and then redacted.
At par 9(a), Mr Saffari stated that the documents (referred to as 'publications' in the first to fourth defendants' outline of submissions), were obtained 'from WA Police and is the Defendants' own document'. At par 9(c) to (m), Mr Saffari described various documents and their content.
Mr Saffari also addressed counsel's submission that to the extent any purported 'publications' were made before 29 December 2018 (that is, more than a year before the writ was filed), the claims are pressed outside the applicable limitation period.[110] In summary, Mr Saffari submitted that in the circumstances he described, no limitation period had expired, but that he would ask the court to allow for extension of time if necessary.[111]
[110] The defendant relies upon Limitation Act 2005 (WA) s 15; First to fourth defendants' submissions, par 12(f).
[111] Plaintiff's submissions, pars 10 - 13.
Having regard to the pleading in its current form, I find that the complaints raised by counsel for Sergeant Talbot summarised at [64] to [66] above to have been appropriately made, and provide a sufficient foundation to conclude that the pleading does not disclose a reasonable cause of action against Sergeant Talbot for defamation.
The requirement of the RSC O 6 r 2 is not met in the writ, nor is it remedied in the substituted statement of claim. In the particulars provided to the plea that the 'Defendants are Concurrent Wrongdoers' in the substituted statement of claim, Mr Saffari stated that Sergeant Talbot is liable 'for tortious acts of fabricating evidence and false accusations and defamation done in 2001, 2002, 2005, 2008 and 2018 (if his actions were intentional)'.[112] No other particulars are provided in the pleading so as to enable the publications, in respect of defamation is alleged, to be identified. It is not sufficient that identification was attempted in Mr Saffari's submissions, intermingled with submission and conjecture.
[112] Substituted statement of claim, par 1(d) (under the part titled 'The Defendants' Liabilities'), noted in the first to fourth defendants' submissions, par 12(e).
The relief claimed by Mr Saffari in the pleading is for an amount, broken down by reference to various heads of damage. It is not clear from the pleading whether Mr Safffari seeks exemplary or punitive damages for defamation as against Sergeant Talbot or any defendant. Any liability will not extend to exemplary or punitive damages for defamation, if indeed it is presently claimed by Mr Saffari as against all defendants.[113]
[113] Defamation Act s 37.
The pleading as framed is so defective that it does not give rise to a cause of action as against Sergeant Talbot for defamation.

Conclusion

While there may be real difficulties in Mr Saffari pleading a factual basis for a cogent cause of action as against Sergeant Talbot, it is appropriate that he be afforded some leniency. While the pleading in its current form ought be struck out, it is appropriate that Mr Saffari be given leave to replead his claims as against Sergeant Talbot within the bounds of s 137(3) of the Police Act.

As against Mr Fleyfel

The pleading as it concerns claims made against Mr Fleyfel suffer from many of the same issues as discussed above. In the writ of summons, Mr Saffari claimed as against 'the Defendants' (which it might reasonably be assumed includes Mr Fleyfel) relief 'for Defamation, Intentional Tort, Malicious Prosecution, Deliberate Misconduct, Unlawful Discrimination, Misfeasance in Public Office and Breach of Statutory Duty'. The substituted statement of claim is also defective in that it does not adequately identify which cause of action is raised against Mr Fleyfel. Nor does it clearly identify the material facts constituting each such cause of action. In its current form, the pleading does not disclose a reasonable cause of action as against Mr Fleyfel and ought to be struck out.
To the extent that a claim is sought to be made as against Mr Fleyfel for the tort of defamation, the requirement of the RSC O 6 r 2 was not met in the writ, nor was it remedied in the substituted statement of claim. In the particulars provided to the plea in the substituted statement of claim that the 'Defendants are Concurrent Wrongdoers', Mr Saffari stated that Mr Fleyfel is liable 'for deliberately making false accusations, lying to the police, lying in a sworn legal document and making defamatory statements in 2001, 2002 and in 2019'.[114] No other particulars were provided so as to enable the publications in respect of which defamation was alleged to be identified.
[114] Substituted statement of claim, par 1(e) (under the part titled 'The Defendants' Liabilities').
The pleading as framed is so defective that it does not give rise to a cause of action as against Mr Fleyfel for defamation. While there may be real difficulties in Mr Saffari pleading a claim in defamation as against Mr Fleyfel, it is appropriate that he be afforded some leniency and he be given leave to replead the claim.
It is unclear from the prayer for relief whether Mr Saffari claims exemplary or punitive damages for defamation as against any or all defendants. Again, I note that any liability will not extend to exemplary or punitive damages for defamation.[115]
[115] Defamation Act s 37.
Further, in any amended pleading, the date or dates of any publication alleged to be defamatory must be pleaded. Although counsel's submissions were compelling, given the confused state of the current pleading, I am not prepared to refuse Mr Saffari leave to replead a claim in defamation on the basis that the facts giving rise to the claim occurred more than 12 months prior to the commencement of the proceeding.[116] It follows that at this time, no order will be made removing the fifth defendant as a party to the proceeding pursuant to the RSC O 18 r 6(2)(a).

Would the pleadings prejudice, embarrass or delay the fair conduct of the proceeding?

[116] Fifth defendant's submissions, par 13(a); Limitation Act s 15.

In Technip Oceania Pty Ltd v Cutmere Pty Ltd [2019] WASC 478 [18], Allanson J summarised a number of authorities relating to whether a pleading should be struck out under the RSC O 20 r 19(1)(c):
Pleadings that raise immaterial or irrelevant issues, or fail to confine the issues or state the case of the party in question with reasonable particularity, may be struck out on the ground that they may prejudice, embarrass or delay the fair conduct of the proceedings. A defendant may not plead 'irrelevant facts, opinions, arguments, reasons or rhetoric under the guise of background facts or narrative'. The pleading of such matters may improperly enlarge the ambit and range of discovery and make it difficult to determine the admissible evidence which a party is entitled to adduce at the trial.
(Footnotes omitted.)
The pleadings as presently framed fail to adequately identify which cause of action is raised against which defendant. Nor are the material facts constituting each such cause of action clearly identified in the pleadings. To the extent that material facts were pleaded, it is not clear which of the pleaded facts relate to which cause of action.
Further, the pleadings that concerned Sergeant Talbot and Mr Fleyfel were made in general terms. It was pleaded that each made 'defamatory' and 'false' allegations or accusations. However, the pleading did not provide the materials facts of such claims, which would include the timeframe, the words or the matters complained of. The pleadings were so lacking that neither Sergeant Talbot nor Mr Fleyfel would be afforded a reasonable opportunity of the current pleading to answer any allegation that defamatory statements were made.[117]
[117] Dare v Pulham [1982] HCA 70; (1982) 148 CLR 658, 664.
As presently framed, the pleadings will prejudice, embarrass and likely delay the fair conduct of the proceeding.

Are the pleadings scandalous, frivolous or vexatious?

An action is frivolous if it is obviously unsustainable and an abuse of process of the court.[118] An action may for the same reason be characterised as vexatious. The expression has been taken to comprehend 'a claim that is so obviously untenable that it cannot possibly succeed', and one in which there is no serious question to be tried and includes a ground which depends on an untenable or groundless factual allegation.
[118] Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473 [11].
The following are claims that cannot possibly succeed:
(a)the claim against the first defendant, the 'Western Australia Police';
(b)any claim against the Commissioner of Police on the basis of vicarious liability;
(c)any claim against the Commission or 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;
(d)any claim against 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 State, for any liability that arises by operation of 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.
These claims are also liable to strike out pursuant to the RSC O 20 r 19(1)(b).

Conclusion and orders

For these reasons, subject to hearing from the parties, I propose to make orders in terms set out in Sch A to these reasons.
It is appropriate that the first defendant be removed as a party to the proceeding. It is also appropriate that the substituted statement of claim be struck out in its entirety, with leave to replead subject to the findings made above. Mr Saffari is not granted leave to replead any of the claims referred to at [159 (a) - (f)] above.
As to the question of costs, there would appear to be no circumstance that warrants a departure from the usual rule that costs follow the event. Subject to hearing from the parties, it is my preliminary view that the plaintiff should pay the defendants' costs of the applications, to be taxed if not agreed.
Finally, I note that Mr Saffari failed to meet the formal requirements of pleadings when preparing the substituted statement of claim. The RSC require that any re-pleaded claim be divided into paragraphs numbered consecutively, each allegation being so far as convenient contained in a separate paragraph.[119] To assist the plaintiff, the defendants and the court, I bring this requirement to the attention of the plaintiff.
[119] RSC O 20 r 7(2).

Sch A: Proposed orders

Amendment to applications

The chamber summons of the first, second and third defendants filed on 4 February 2021 is amended by deleting the words 'The Plaintiff's Writ and Statement of Claim filed on 29 December 2019' in proposed order 4, and replacing them with the words 'The Plaintiff's Writ filed on 29 December 2019 and the substituted statement of claim filed on 13 April 2021'.
The chamber summons of the fifth defendant filed on 11 March 2021 is amended by deleting the words 'The Plaintiff's Writ and Statement of Claim filed on 29 December 2019' in proposed order 4, and replacing them with the words 'The Plaintiff's Writ filed on 29 December 2019 and the substituted statement of claim filed on 13 April 2021'.

Indorsement of claim

The statement of claim indorsed on the plaintiff's writ of summons filed on 29 December 2019 stand as an indorsement of claim.

Non-party access restricted

Pursuant to the Rules of the Supreme Court 1971 (WA) O 67B r 5(1)(a), non-party access to the writ of summons filed on 29 December 2019 shall be restricted and only permitted with the prior approval of the Principal Registrar.
Pursuant to the Rules of the Supreme Court 1971 (WA) O 67B r 5(1)(a), non-party access to the plaintiff's affidavit affirmed on 6 May 2021 shall be restricted and only permitted with the prior updated approval of the Principal Registrar and upon prior notice to the fifth defendant who will have liberty to be heard in relation to any request for access.

Leave to bring applications out of time

The first, second and third defendants have leave to bring the chamber summons filed 4 February 2021 outside of the time limit specified in the Rules of the Supreme Court 1971 (WA) O 20 r 19(3)(a).
The fourth defendant has leave to bring the chamber summons filed 14 May 2021 outside of the time limit specified in the Rules of the Supreme Court 1971 (WA) O 20 r 19(3)(a).
The fifth defendant has leave to bring the chamber summons filed 11 March 2021 outside of the time limit specified in the Rules of the Supreme Court 1971 (WA) O 20 r 19(3)(a).

Removal of party to the action

The first defendant be removed as a party to the action pursuant to the Rules of the Supreme Court 1971 (WA) O 18 r 16(2)(a).

Substituted statement of claim struck out

The substituted statement of claim filed on 13 April 2021 be struck out in their entirety pursuant to the Rules of the Supreme Court 1971 (WA) O 20 r 19(1) on the grounds that it:
(a)discloses no reasonable cause of action against the second, third, fourth and fifth defendants;
(b)is scandalous, frivolous and/or vexatious; and
(c)may prejudice, embarrass or delay the fair trial of the action.
Subject to order 12 below, the plaintiff be granted leave to re-plead his claim. Within 28 days of the date of this order, the plaintiff do file and serve a further substituted statement of claim.
The plaintiff is not given leave to re-plead any of the following claims:
(a)the claim against the first defendant, the 'Western Australia Police';
(b)any claim against the Commissioner of Police on the basis of vicarious liability;
(c)any claim against the Commission or 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;
(d)any claim against 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 State, 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.

Costs

The plaintiff pay the first, second, third, fourth and fifth defendants' costs of the applications, to be taxed if not agreed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
AI
Associate to the Honourable Justice Strk
15 JUNE 2022