Tallott v City of Stirling
[2014] WASC 263
•28 JULY 2014
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
CITATION: TALLOTT -v- CITY OF STIRLING [2014] WASC 263
CORAM: CHANEY J
HEARD: ON THE PAPERS
DELIVERED : 28 JULY 2014
FILE NO/S: CIV 1324 of 2014
BETWEEN: AARON TALLOTT
Plaintiff
AND
CITY OF STIRLING
Defendant
Catchwords:
Pleadings - Application to strike out statement of claim in part and amended writ of summons - Whether statement of claim discloses cause or causes of action - Whether amended writ of summons complies with O 6 r 1(1) of the Rules of the Supreme Court 1971 (WA) - Effect of grant of leave to commence proceedings
Legislation:
Constitution Act 1889 (WA)
Criminal Code 1913 (WA)
Rules of the Supreme Court 1971 (WA)
Trademarks Act 1995 (WA)
Result:
Leave to amend writ refused
Statement of claim struck out in part
Category: B
Representation:
Counsel:
Plaintiff: No appearance
Defendant: No appearance
Solicitors:
Plaintiff: No appearance
Defendant: No appearance
Cases referred to in judgment:
Blundell v Attorney‑General [1968] NZLR 341
Boase v Axis International Management Pty Ltd [No 2] [2012] WASC 334
Davidson v Chief Constable of North Wales [1994] 2 All ER 597
Dickenson v Walters Ltd (1931) 31 SR (NSW) 593
Kimberley Downs Pty Ltd v Western Australia (Unreported, WASC, Lib No 6414, 25 August 1986)
Myer Stores Ltd v Soo [1991] 2 VR 597
Northern Territory of Australia v Mengel [1995] HCA 65; (1995) 185 CLR 307
Ruddock v Taylor [2005] HCA 48; (2005) 222 CLR 612
Tallott v Matier [2013] WASC 429
The Australian Medical Association (WA) Incorporated v McEvoy [No 2] [2012] WASC 416
Tobin v Dodd [2004] WASCA 288
CHANEY J: On 11 April 2014, the plaintiff filed what was, in effect, a substituted statement of claim pursuant to leave which I granted on 3 April 2014, having on that day struck out the previous statement of claim. The first defendant, the City of Stirling (the City), now seeks to strike out portions of the substituted statement of claim. Before considering the particular objections raised by the City to the current pleading, it is necessary briefly to recap the history of the proceedings.
History of the proceedings
In early January 2014, Mr Tallott sought to commence proceedings against the City and others. It would appear that the Registrar declined, pursuant to O 67 r 5(1) of the Rules of the Supreme Court 1971 (WA), to issue the proceedings without leave of a judge. Accordingly, Mr Tallott filed an originating motion seeking leave. The originating motion sought leave to commence an action, comprising three categories of claims, against the defendants. The first category were claims in tort said to have 'occurred as a direct result of the abuse of office and malicious prosecution'. The second category related to the 'trademark that the City operate under' and the third category sought placement of a caveat on land under the ownership or control of the City. That application came before McKechnie J on 28 January 2014, and leave was granted to Mr Tallott to institute a claim on the basis of the torts which he identified, but was refused in relation to the second and third categories.
Pursuant to that leave, Mr Tallott commenced the present action. He is self‑represented. The writ of summons as filed is indorsed with a statement of claim. The statement of claim consisted of a recitation of the continuing disputes between Mr Tallott and the City since January 2011. It then made reference to a number of individual defendants and made a number of generalised complaints as to their conduct towards Mr Tallott.
On 20 March 2014, the City entered an appearance through its solicitors. On 25 March 2014, Mr Tallott filed a minute of amended writ of summons which contained a new statement of claim. On 31 March 2014, the City issued a chamber summons seeking to strike out the statement of claim, whether it consisted of the original statement of claim or the minute of proposed statement of claim of 25 March 2014.
The chamber summons was considered at a directions hearing on 3 April 2014, at which time I made an order striking out the statement of claim. It was clear that both the original statement of claim and the minute of amended statement of claim failed to meet the requirement that a pleading identify causes of action and the material facts supporting those causes of action. The plaintiff was given leave to file and serve an amended statement of claim which he did on 11 April 2014. I will refer to that document as the substituted statement of claim. It is the pleading the subject of the present application.
The substituted statement of claim is broken into a number of headings. The first eight headings deal with events which are referred to as incident 1 to incident 8 respectively. The ninth heading is 'The Whole Debarkle [sic]'. Under each heading, individual defendants are nominated as are the tortious causes of action said to arise in relation to that particular incident. Pleading in relation to each incident commences with paragraphs which are in the nature of a general summary of each cause of action. There then follows what are described as 'Particulars' but which I take to be pleadings of the facts relied upon to establish the various causes of action.
The City contends that those parts of the substituted statement of claim comprising incidents 1, 3, 4, 5 and 8 should be struck out either on the basis that they fail to disclose a cause of action, or are frivolous and vexatious. It also seeks to have the section which is headed 'The Whole Debarkle [sic]' struck out on various grounds and that certain prayers for relief also be struck out.
In addition, the City contends that the amended writ of summons filed on 11 April 2014 should be struck out for reasons which are set out below.
I will turn first to the submission that the amended writ of summons should be set aside.
Amended writ of summons
The City objects to the amended writ of summons either because it is inconsistent with the indorsement settled by McKechnie J which was the subject of his Honour's grant of leave and it was filed without leave, or because the indorsement on the proposed amended writ does not comply with O 6 r 1(1) of the Rules of the Supreme Court, and because it seeks to join additional defendants without leave.
The complaint that the amended writ of summons is inconsistent with the leave granted by McKechnie J has no merit. Order 67 r 5(1) of the Rules provides:
If any writ, process, motion, application or commission, which is presented for filing, issue or sealing appears to the registrar to be an abuse of the process of the Court or a frivolous or vexatious proceeding, the registrar shall refuse to file or issue such writ, process, motion, application or commission without the leave of a judge or a master first had and obtained by the party seeking to file or issue it.
It is apparent that, in this case, the Registrar declined to issue the writ initially presented by Mr Tallott. Mr Tallott then sought leave. McKechnie J deleted portions of the indorsement on the proposed writ which dealt with a claim under the Trademarks Act 1995 (Cth) and sought the grant of a caveat. Those claims were clearly unsustainable. What remained of the indorsement on the writ was a foreshadowed claim in relation to various torts being:
False imprisonment, fraud, conversion/trespass to goods/detinue, trespass ab initio, malicious prosecution, intimidation/menaces, misfeasance in public office, public nuisance, collateral abuse of process, harassment.
At the hearing of the application for leave, McKechnie J explained to Mr Tallott that it would be necessary, if the writ were issued, for Mr Tallott to plead the material facts supporting his various causes of action. That is what Mr Tallott now seeks to do.
The leave granted by McKechnie J does not restrict Mr Tallott's rights of action against the City. Leave was necessary because the particular writ presented for filing obviously appeared to the Registrar to be either an abuse of process of the court or a frivolous or vexatious proceeding. Once the writ was accepted for filing, which it was as a result of McKechnie J's grant of leave subject to the Judge's amendments to it, there is no fetter on the action proceeding like any other action. That is, it is open to amend either the writ or pleadings made pursuant to it, to join other parties, and to take any other procedural steps which are open in the ordinary course of an action commenced by writ. Mr Tallott does not require leave to take any steps of that nature in the conduct of the action, but obviously, like any other litigant, any steps must accord with the relevant substantive or procedural requirements which apply. Once issued, the proceedings are, like all proceedings, subject to the management and supervision of the Court.[1]
[1] See Rules of the Supreme Court 1971 (WA) O 1 r 4B.
The second objection taken by the City to the proposed amended writ is that the indorsement does not meet the requirements of O 6 r 1(1) of the Rules of the Supreme Court, which requires that the writ be indorsed with a concise statement of the nature of the claim made, and the relief or remedy required in the action. The indorsement on the proposed amended writ of summons comprises a statement as to the circumstances in which Mr Tallott lives, and then a general lament about the conduct of the City and its servants and agents. Unlike the indorsement on the original writ, it does not specify the causes of action to be pursued. The indorsement on the proposed amended writ does not meet the requirements of O 6 r 1(1), and should not be permitted. In any event, there is no need for the indorsement of claim to be amended in order to support the substituted statement of claim. Other than to add two defendants, therefore, the proposed amended writ serves no purpose. The question whether the two additional parties should be added is a matter which can be dealt with in the context of the review of the substituted statement of claim below. To the extent that claims against the proposed two additional defendants can be maintained, the question of their joinder can be dealt with under O 18 r 6(2) of the Rules of the Supreme Court.
Leave to amend the writ is refused, but is unnecessary in any event as the existing indorsement in the original writ is sufficient to support the proposed claim in the substituted statement of claim.
The approach to the strike out application
Mr Tallott is not represented by a solicitor. It is necessary therefore to be careful to ensure that, despite technical or other deficiencies or poor expression in the document setting out the claim, there is no viable cause of action which, with appropriate amendment, could be put into proper form.[2] The position was discussed by E M Heenan J in Tobin v Dodd[3] (with whom Murray J agreed) where he said:
[2] Boase v Axis International Management Pty Ltd [No 2] [2012] WASC 334 [57] (Beech J).
[3] Tobin v Dodd [2004] WASCA 288 [14].
The extent to which a court should act to ensure a fair trial when there is an unrepresented litigant was examined by the Full Court of the Federal Court of Australia in Minogue v Human Rights and Equal Opportunity Commission (1999) 166 ALR 129. In my respectful view the situations which can arise in those circumstances were very fully addressed by the decision of Sackville, North and Kenny JJ in that case at [26] - [30]. As it is possible that this action may proceed with the appellant unrepresented it is appropriate to set out these passages in full. Their Honours said:
'[26] Unrepresented litigants present difficult issues for courts and for individual judges. As the majority observed in Cachia v Hanes (1994) 179 CLR 403 at 415; 120 ALR 385 at 391:
"While the right of a litigant to appear in person is fundamental, it would be disregarding the obvious to fail to recognise that the presence of litigants in person in increasing numbers is creating a problem for the courts."
Increasing attention is being devoted to the policy issues created by the increasing numbers of litigants in person. See, for example, Australian Law Reform Commission, The Unrepresented Party (Background Paper 4, December 1996).
[27] In Neil v Nott (1994) 68 ALJR 509; 121 ALR 148, the High Court considered whether the trial judge's exercise of discretion to refuse an extension of time for lodging an application for maintenance and support under the Administration and Probate Act 1958 (Vic) [had miscarried]. The court observed (at 510 and 150) that a
"frequent consequence of self-representation is that the court must assume the burden of endeavouring to ascertain the rights of parties which are obfuscated by their own advocacy."
In Abram v Bank of New Zealand (1996) ATPR 41-507 at 42,347, a Full Federal Court, faced with an unrepresented litigant's claim that the trial judge had not given him appropriate assistance to present his case, made this comment:
"What a judge must do to assist a litigant in person depends on the litigant, the nature of the case, and the litigant's intelligence and understanding of the case."
We respectfully agree with this observation. Because the duty of the judge varies according to the factors identified by the Full Court in Abram, the duty to assist an unrepresented accused in criminal proceedings is likely to be more extensive than that imposed on a judge hearing civil proceedings in which one or more of the parties are not legally represented: cf MacPherson v R (1981) 147 CLR 512; 37 ALR 81; D A Ipp, 'Judicial Intervention in the Trial Process' (1995) 69 ALJ 365, at 369-70.
[28] The general principles governing the role of the judge in civil proceedings involving an unrepresented litigant have been stated in Rajski v Scitec Corp Pty Ltd (CA(NSW), 16 June 1986, unreported). Samuels J said this (at 14):
"In my view, the advice and assistance which a litigant in person ought to receive from the court should be limited to that which is necessary to diminish, so far as this is possible, the disadvantage which he or she will ordinarily suffer when faced by a lawyer, and to prevent destruction from the traps which our adversary procedure offers to the unwary and untutored. But the court should be astute to see that it does not extend its auxiliary role so as to confer upon a litigant in person a positive advantage over the represented opponent ... At all events, the absence of legal representation on one side ought not to induce a court to deprive the other side of one jot of its lawful entitlement ... An unrepresented party is as much subject to the rules as any other litigant. The court must be patient in explaining them and may be lenient in the standard of compliance which it exacts. But it must see that the rules are obeyed, subject to any proper exceptions. To do otherwise, or to regard a litigant in person as enjoying a privileged status, would be quite unfair to the represented opponent."
Mahoney JA made the following observation (at 27):
"Where a party appears in person, he will ordinarily be at a disadvantage. That does not mean that the court will give to the other party less than he is entitled to. Nor will it confer upon the party in person advantages which, if he were represented, he would not have. But the court will, I think, be careful to examine what is put to it by a party in person to ensure that he has not, because of the lack of legal skill, failed to claim rights or to put forward arguments which otherwise he might have done."
These comments have been referred to with approval in subsequent cases: see In the Marriage of Johnson (1997) 139 FLR 384 (Fam Ct/FC), at 406 (and cases cited there); Morton v Vouris (1996) 21 ACSR 497 at 513-14 per Sackville J. There is nothing in Neil v Nott inconsistent with what was said in Rajski v Scitec Corp.
[29] A trial judge often faces something of a dilemma. While he or she may be bound to provide some advice and assistance to an unrepresented litigant, the authorities make it clear that the judge should not intervene to such an extent that he or she cannot maintain a position of neutrality in the litigation: Burwood Municipal Council v Harvey (1995) 86 LGERA 389 (NSW CA), at 397 per Kirby P. However, the boundaries of legitimate intervention are flexible and will be influenced by the need for intervention to ensure a fair and just trial: Panagopoulos v Southern Healthcare Network (SC(Vic), Smith J, 15 September 1997, unreported) at 6.'
Le Miere J, in the same case, noted that the court would approach matters involving litigants in person with a degree of flexibility, bearing in mind that the rules of pleading are a means to an end and not an end in themselves.[4]
[4] Tobin v Dodd [2004] WASCA 288 [70].
In considering the City's objections to the statement of claim, it is therefore necessary to consider whether, in relation to the eight incidents and the section entitled 'The Whole Debarkle [sic]', a reasonable cause of action is identified and, to the extent that there is unnecessary or inelegantly pleaded material in the statement of claim, whether that material is likely to embarrass the defendant or cause confusion or delay at trial.[5]
[5] The Australian Medical Association (WA) Incorporated v McEvoy [No 2] [2012] WASC 416 [2] (Le Miere J).
It must be borne in mind that, for the purposes of an application to strike out a pleading, it must be accepted that all the facts pleaded are true.[6]
[6] Kimberley Downs Pty Ltd v Western Australia (Unreported, WASC, Lib No 6414, 25 August 1986).
Incident 1
The pleading in relation to incident 1 is directed to two defendants, Phillip Mitchel and Neil Emery. It identifies the torts sought to be pleaded, being 'Misfeasance in Public Office, False Imprisonment, Combination'.
False imprisonment
The City's objections in relation to incident 1 are that, because the complaint is as to the arrest and detention of the plaintiff by police officers, no cause of action against the City or its officers is disclosed, or alternatively it is frivolous and vexatious to make claims against the City on the basis of it having directed or controlled actions of police officers.
In response, Mr Tallott referred to the reference by Kirby J in Ruddock v Taylor[7] to the 'long line of "police informant" cases' to the effect that a person who gives information to police that leads to a wrongful arrest will be liable, to the person falsely imprisoned, for false imprisonment.[8]
[7] Ruddock v Taylor [2005] HCA 48; (2005) 222 CLR 612.
[8] Ruddock v Taylor [2005] HCA 48; (2005) 222 CLR 612 [152], referring to Dickenson v Walters Ltd (1931) 31 SR (NSW) 593; Blundell v Attorney‑General [1968] NZLR 341; Myer Stores Ltd v Soo [1991] 2 VR 597; Davidson v Chief Constable of North Wales [1994] 2 All ER 597.
The pleading alleges (in effect) that the police acted on false information, knowingly given to them by the officers of the City, namely that Mr Tallott had committed offences of 'cutting down branches', 'lighting fires' and 'camping'. It alleges that the incorrect information lead to Mr Tallott's wrongful arrest and detention.
The pleading in relation to incident 1 identifies an arguable cause of action for false imprisonment.
Misfeasance in public office
In Northern Territory of Australia v Mengel[9] Deane J identified the elements of the tort of misfeasance in public office as being:
i.an invalid or unauthorised act;
ii.done maliciously;
iii.by a public officer;
iv.in the purported discharge of his or her public duties;
v.which causes loss or harm to the plaintiff.
[9] Northern Territory of Australia v Mengel [1995] HCA 65; (1995) 185 CLR 307, 370.
Paragraph 2 of the pleading in relation to incident 1 pleads in summary form all of those elements without particularising the relevant 'invalid and unauthorised act' relied upon. It is thus necessary to consider the material facts pleaded in the 'Particulars'.
The paragraphs numbered 1 to 11 under the heading 'Particulars' do not plead the particular act or acts which are said to be unauthorised or invalid for the purpose of the misfeasance in public office cause of action, nor that the act or acts relied upon were carried out in the purported furtherance of the public duties of the officer concerned. In its present form the substituted statement of claim does not disclose a cause of action for misfeasance in public office.
Conspiracy
The reference in the substituted statement of claim to 'Combination' is an allegation of the tort of conspiracy to harm the plaintiff. Paragraph 2 of the pleading in relation to incident 1 alleges 'a malicious combination' between Mr Emery and Mr Mitchel to undertake actions which they knew to be beyond power (ie unlawful means) with the intention of causing harm to the plaintiff. The particulars allege that the actions were then performed and that the plaintiff suffered damage. The City's objections to the substituted statement of claim do not address any complaints as to the pleading of conspiracy, and although some further particulars may ultimately be required, I am satisfied that the pleading discloses a cause of action for conspiracy, and that aspect of the pleading should not be struck out.
The relief claimed seeks damages, an injunction and 'statutory relief' being 'the vacating of the offices of the said defendants Emery and Mitchel pursuant to s 53(a) of the State Constitution Act 1889'. Section 53(a) of the Constitution Act 1889 (WA) does not afford a remedy of any kind. The claim for 'statutory relief' does not disclose a cause of action and should be struck out from the pleading.
Incidents 2, 6 and 7
There is no challenge to these portions of the statement of claim.
Incident 3
This incident, referred to as 'Attack on the Hill (No 1)' is directed to four named defendants, being Neil Emery, Peter Mitchel, Andreas Kolm and Sean Thomas. The torts identified in relation to this incident are 'Malicious Prosecution, Combination, Misfeasance in Public Office, False Imprisonment'.
The pleading asserts that Mr Tallott was detained in custody from 15 November 2011 to early to mid‑January 2012. His arrest is pleaded as having occurred by reason of his failure to comply with a move‑on notice issued by police following a complaint by officers of the City, including Mr Emery and Mr Mitchel, that Mr Tallott was committing an offence of camping without a permit. It is pleaded that the proceedings in relation to the charge against the plaintiff were ultimately determined in the plaintiff's favour.
The objections to the pleading in relation to incident 3 are to the same effect as the objections in relation to incident 1. Like the pleading in relation to incident 1, all of the elements of the tort of misfeasance in public office are not pleaded in relation to incident 3 and the pleading thus does not disclose that cause of action. The only acts identified as having been taken by named defendants are:
•Mr Emery instructing the police that Mr Tallott had committed an offence of camping without a permit; and
•Mr Emery and Mr Mitchel making remarks that the plaintiff was damaging the dunes and that people find Mr Tallott's presence offensive.
Accepting for present purposes that those comments were incorrect, these are not actions which can be said to be 'invalid or unauthorised' in the relevant sense.
I consider that, on the basis of the proposition explained in Ruddock v Taylor, a cause of action for false imprisonment is arguably available in relation to incident 3. That is because, although the initial arrest appears to have been based on Mr Tallott's failure to comply with a move‑on notice, the issuing of that notice is pleaded as having resulted from false complaints made by Mr Emery and Mr Mitchel. Similarly, a cause of action for the tort of conspiracy is arguably open in the pleading.
The pleading asserts that, following the events particularised in relation to incident 3, the police instituted a prosecution, apparently for failing to comply with a move‑on notice. There is no allegation of a prosecution by any of the named defendants. No cause of action for malicious prosecution is disclosed in relation to incident 3 and that aspect of the pleading should be struck out.
Again, the prayer for 'statutory relief' based on s 53(a) of the Constitution Act does not disclose a cause of action and should be struck out. No cause of action is disclosed in relation to the defendants Mr Kolm or Mr Thomas. All that is alleged is that they were present when the events took place. That is not enough to establish any liability on their part.
Incident 4
Incident 4 is referred to as the 'Assault in the Middle of the Night' and the relevant torts are identified as being 'Malicious Prosecution, Misfeasance in Public Office, False Imprisonment, Trespass Ab Initio, Combination'.
Incident 4 relates to circumstances which led to Mr Tallott being charged with obstructing a public officer under s 172(2) of the Criminal Code 1913 (WA). Mr Tallott was initially convicted of that offence, but that conviction was ultimately set aside on appeal.[10]
[10] Tallott v Matier [2013] WASC 429 (Allanson J).
Incident 4 is said to raise causes of action against Timothy Oldham, Phillip Mitchel, Peter Morrison and Mike Newsun. The particulars which set out the material facts of incident 4 make no reference to any conduct by Mr Morrison or Mr Newsun. No cause of action is revealed against those two persons in relation to incident 4.
The incident in question is said to have happened late at night on 10 March 2012 and in the early hours of 11 March 2012. Messrs Oldham and Mitchel are said to have woken the plaintiff as he slept on the beach in Scarborough and told him that he should not be where he was. Mr Tallott says he told Mr Oldham and Mr Mitchel to go away, to which they replied they would be back with the police to 'move him on'. Mr Oldham and Mr Mitchel are said to have returned later that night in company of the police who then proceeded to use force to remove Mr Tallott from the beach, and subsequently charged him with obstruction.
There is nothing in the pleading in relation to incident 4 which identifies an invalid or unauthorised act done by Mr Mitchel or Mr Oldham which would support a finding of misfeasance in public office by either of them. The prosecution which is pleaded was a prosecution instituted by the police officers, who are not defendants in the present proceedings, and thus no cause of action for malicious prosecution by any of the named defendants is disclosed. Nor are there material facts pleaded which would support causes of action against the named defendants for false imprisonment, trespass ab initio or conspiracy.
The pleading in relation to incident 4 does not disclose a cause of action against any of the named defendants, and should be struck out.
Incident 5
Incident 5 is referred to as 'Fire on the Beach' and is said to rely on the cause of action of false imprisonment. The defendants are said to be 'Unidentified Officers of the defendant body city of stirling [sic]'.
The material facts pleaded concern an incident in which the plaintiff lit a fire on the beach on 7 April 2012 at approximately 7 pm. It is pleaded that it was a small fire, that was 'just coals' at the time fire trucks attended and that the 'firies then stomped on the fire' to extinguish it. Mr Tallott was told by the firemen not to do it again, before they left. It is pleaded that two unidentified officers of the City then attended the beach with two police officers, who are said to have been present at the request of the City's officers. The plaintiff, and three others who were with him, were issued with move‑on notices. The others moved away from the area, but Mr Tallott did not. It is pleaded that he was subsequently arrested and held for about 18 hours. It is pleaded that the proceedings which followed were ultimately terminated in his favour.
The facts as pleaded are that the police issued the notice to Mr Tallott, and subsequently arrested him and detained him. The only connection between those events and the 'unidentified officers of the City' is a plea that the police attended 'at the direct request of the defendant officers'. Presumably, given that the officers concerned are not identified (and presumably therefore not parties to the present action) the plaintiff's claims are intended to be against the City for its vicarious liability for the actions of its officers.
As with incident 4, the pleading in relation to incident 5 discloses no material facts which would support a claim against the City for false imprisonment. The pleading in relation to incident 5 should be struck out.
Incident 8
This incident is referred to as 'Attack on the Hill (No 2)'. It is said to raise causes of action for false imprisonment, combination (conspiracy) and misfeasance in public office against Phillip Mitchel, Andreas Kolm, and Kevin Emery.
The only reference to Mr Emery in the particulars in relation to incident 8 is that Mr Tallott saw him speaking to another officer in the City some distance away from the events which subsequently transpired. There is nothing in the pleading in relation to incident 8 which identifies any possible cause of action against Mr Emery.
The pleading asserts various facts leading up to the issuing of a move‑on notice by police officers to Mr Tallott, on 13 November 2013. Mr Mitchel and Mr Kolm are said to have been present when the police spoke to Mr Tallott. Mr Mitchel was said to have made certain remarks which might go to the question of malice. He is also said to have made a remark that 'the plaintiff was breaching s 5.6 of the Local Government Property Law, accusing the plaintiff of being in a "fenced off or closed area"'.
No imprisonment is pleaded in the particulars, which simply refer to the police requiring Mr Tallott to remove a pole, which he had been painting, from the sand at the beach, and to walk over to a grassed area where the police van was parked. This is said to have occurred 'after the police had arrested him for trespass'. That arrest is said to have been revoked and then, instead, a move‑on notice was issued to Mr Tallott. The move‑on notice is said to have been subsequently revoked by a sergeant at the Scarborough Police Station when Mr Tallott attended there some time later of his own volition.
The material facts contained within the particulars do not disclose a cause of action for any of the torts identified in relation to incident 8. There are no pleas of any invalid or unauthorised act by any of the City's officers, nor of any imprisonment resulting from any action by any officer of the City. The facts pleaded in incident 8 do not disclose a cause of action and should be struck out.
The whole debacle
This aspect of the pleading is directed to the City, Mayor Italiano and Stuart Jardine. Mayor Italiano was not listed as a defendant in the original writ, and thus is not presently a party to the action. The causes of action pleaded in relation to 'The Whole Debarkle [sic]' are said to be collateral abuse of process, public nuisance and negligence.
Abuse of process
The alleged collateral abuse of process relies upon the earlier eight incidents. In essence, the pleading appears to rest on the proposition that the various incidents recited earlier in the pleading occurred without any proper foundation and for the purpose of causing the plaintiff 'improper vexation and oppression, in which the combined defendants have used the criminal aspect of the law to be set in motion which was entirely outside the ambit of the legal issues upon which the Court was asked to adjudicate'. I take that pleading to be that the City has embarked upon an abuse of legal process in order to bring about harm to the plaintiff.
The plaintiff clearly seeks to invoke the cause of action explained by Isaacs J in Varawa v Howard‑Smith Co Ltd:[11]
In the sense requisite to sustain an action, the term 'abuse of process' connotes that the processes employed for some purpose other than the attainment of the claim in the action. If the proceedings are merely a stalking horse to coerce the defendant in some way entirely outside the ambit of a legal claim upon which the Court is asked to adjudicate they are regarded as an abuse of process for this purpose ... .
[11] Varawa v Howard‑Smith Co Ltd (1911) 13 CLR 35, 91.
The only proceedings referred to in incidents 1 to 8 are proceedings by way of prosecution instituted by the police. Applying a liberal interpretation to the substituted statement of claim, it might be concluded that the essence of Mr Tallott's claim of abuse of process is that the City and its officers embarked upon a process of harassment and unfounded complaints to the police for the purpose of oppressing Mr Tallott. Generalised acts of oppression, even if incidentally those acts might cause someone else to institute proceedings, do not provide a foundation for an action for damages for abuse of process. That cause of action is confined to the misuse of legal proceedings by the person instituting those proceedings. No cause of action for abuse of process is disclosed in the substituted statement of claim.
Public nuisance
The claim in relation to public nuisance appears to contain a number of aspects. There are references to the setting up of structures on the beach (referred to in the pleading as 'the circus'), which affected public access to the beach front, and to 'carnage to the "dune conservation area"'. There is an allegation of liquid waste discharge from pipes creating a hazard to the public at large and detriment to the environment. There is reference to the provision by the City of its security and beach inspectors who are said to create 'monstrous nuisance' as illustrated by the incidents earlier pleaded.
The pleading asserts that the plaintiff has suffered particular damage over and above that of the rest of the general public. That particular damage was said to have resulted from the 'constant arbitrary vexatious officious oppression' employed by the City's officers.
In the absence of damage above that suffered by the public generally, Mr Tallott has no standing to sue in relation to public nuisance.[12]
[12] Attorney‑General v PYA Quarries Ltd [1957]1 All ER 894, 908 (Denning LJ); 909 (Parker LJ agreeing); Walsh v Ervin [1952] VLR 361, 368 (Sholl J).
The provision of security officers and beach inspectors by the City in the course of performance of its statutory governmental role is not capable of constituting a public nuisance, regardless of how those officers may perform their duties. To the extent that the substituted statement of claim identifies any particular damage above that suffered by the general public, it is only sensibly referrable to that aspect of the claim in public nuisance. That is, Mr Tallott asserts that he has suffered particular damage because of harassment of him by the City's officers.
The City argues that the pleadings in relation to public nuisance should be struck out as they do no more than indicate disagreement on Mr Tallott's part with the way in which he says the City manages the beach in the Scarborough area. Mr Tallott's submissions in relation to this aspect of the claim tend to support that characterisation of the pleadings. However, even if the pleading is construed as identifying conduct which might be capable of amounting to a public nuisance, Mr Tallott has no standing to seek redress in these proceedings. The portion of the pleading relating to public nuisance should be struck out.
Negligence
The claim in negligence is directed to the Mayor and Chief Executive Officer of the City. It pleads that Mr Jardine and Mr Italiano owed the plaintiff a duty 'not to be injured or damaged by the deliberate abuse of power by their servants and agents'. It is pleaded that Mr Jardine and Mr Italiano either had direct knowledge of each of the incidents pleaded or 'were negligently responsible for the incidents as a whole'. It is also pleaded that they are responsible for the 'Nuisance of their Heavy Machinery, and Liquid Waste discharge pipes identified by the evidence'. The pleading of negligence seeks to indiscriminately characterise all of the earlier complaints about the conduct of the City's officers as breaches of the duty of care owed by Mr Italiano and Mr Jardine to the plaintiff. That shorthand way of pleading is embarrassing, because it does not identify with clarity the case which Mr Italiano and Mr Jardine have to meet. Nor is the basis of the asserted duty of care adequately pleaded. It is not a matter which can be cured simply by further and better particulars.
The pleading in relation to negligence is embarrassing and should be struck out.
The parties
The writ of summons named the City of Stirling as the defendant, but appends a schedule setting out the names of a further 11 defendants, all of whom are individuals. Some of those defendants are not referred to at all in the substituted statement of claim. Some are referred to in relation to portions of the substituted statement of claim which I have determined should be struck out. As I understand it, none of the individually named defendants have yet been served and only the City of Stirling has entered an appearance. The clarification of the identity of the parties to the action, and the question of service on those parties, is a matter which will need to be dealt with at the next directions hearing following delivery of these reasons.
Application to amend appearance
In the City's submissions, it sought leave to amend its appearance to a conditional appearance so that it could apply for the amended writ of summons to be set aside under O 6 r 1(2) of the Rules of the Supreme Court. Having regard to my conclusions in relation to the amended writ of summons set out above, it would not appear necessary to deal with that application.
I will hear the parties as to the appropriate orders in light of the foregoing reasons.
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