Tazroo v State of South Australia
[2006] SADC 29
•17 March 2006
DISTRICT COURT OF SOUTH AUSTRALIA
(Civil: Appeal Against a Master's Decision)
TAZROO v STATE OF SOUTH AUSTRALIA
Judgment of His Honour Judge Beazley
17 March 2006
PROCEDURE - MISCELLANEOUS PROCEDURAL MATTERS
Appeal from District Court Master - Pleadings - Master ordered on 29 November 2005 that the plaintiff's respective claims against the defendant for false imprisonment and malicious prosecution be dismissed. While plaintiff's Notice of Appeal relates to a subsequent order of the Master, in effect he seeks an extension of time to appeal against orders made on 29 November 2005.
District Court Rules 97.03, referred to.
Jackamarra v Krakouer (1998) 195 CLR 516; A v New South Wales (2005) NSWCA 292; Commonwealth Life Assurance Society Limited v Brain (1935) 53 CLR 343; Mitchell v John Heine & Son Limited (1938) SR (NSW) 466; Cabassi v Vila (1940) 64 CLR 130 at 141; Porter v OAMPS [2005] FCA 232; [2005] FCA 729; Savill v Roberts (1698) 88 ER 1267; Rayson v South London Tramways Co (1893) 2 QB 304; Kadeh v Gill [2000] 211 LSJS 88; O'Brien Lovrinov Crafter Pty Ltd v Corradini [1999] SASC 159; D'Orta-Ekanaike v Victoria Legal Aid (2005) 214 ALR 92; Martin v Watson (1996) 1 AC 74; Badcock v Channel Seven Adelaide [2006] SADC 7; General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 at 129; Peek v Channel Seven Adelaide [2006] SASC 63 at [29]; The State of South Australia v Barrett (unreported judgment 8/7/94) BC 9400743 at 7, 13, considered.
TAZROO v STATE OF SOUTH AUSTRALIA
[2006] SADC 29Introduction
On 29 November 2005, a Master of the Court ordered that the plaintiff’s claim against the defendant for false imprisonment and malicious prosecution be dismissed. A further order was made striking out the Statement of Claim, but granting leave to the plaintiff to file an Amended Statement of Claim properly pleading the sole remaining cause of action in assault. The plaintiff did not appeal against those orders. He elected simply to file a document entitled “FDN 23” on 4 December 2005, which purported in a somewhat rambling fashion to recast the pleas of false imprisonment and malicious prosecution.
The plaintiff is self-represented and is presently imprisoned at Port Lincoln. He had previously been detained at Port Augusta Prison. He had attended a subsequent Directions Hearing by telephone from the Port Augusta Prison on 19 January 2006 to argue whether there was a need to further amend the Statement of Claim to properly plead the sole remaining cause of action.
By Notices of Appeal dated respectively 24 January 2006 and 30 January 2006 (in effectively the same form) Mr Tazroo (“the plaintiff”) appealed against an order of the Master made on 19 January 2006.
The relevant order made by the Master on that date was as follows:
FDN 23 Titled “Amendments to the Statement of Claim” the plaintiff has purported to plead causes of action in malicious prosecution and false imprisonment despite my order of 29/11/05 dismissing his claims for false imprisonment and malicious prosecution. It is appropriate that FDN 23 is removed from the Court file and returned to the plaintiff.
There is no basis upon which the plaintiff could challenge that order of the Master.
As it transpired at the hearing of this Appeal, it became clear the plaintiff was in fact seeking to set aside the orders made by the Master on 29 November 2005 dismissing those claims for false imprisonment and malicious prosecution. In so far as it might be said to constitute a notice of appeal against the orders made on 29 November 2005, such notice is out of time by a substantial period. Pursuant to DCR Rule 97.03 the time limit prescribed for the institution of an appeal is 14 days. The plaintiff made an oral application for an extension of time. The principles which govern an application for an extension of time have been discussed in a number of cases and summarised in Jackamurra v Krakouer[1]. Where an applicant’s right of appeal has gone, the time for appealing will not be extended unless the proposed appeal has some prospects of success. If it is hopeless, unarguable or bound to fail, the request for an extension of time will be refused, because to grant it would be futile. I heard the application for an extension of time and the submissions on the appeal together, so as to enable me to examine the merits of the appeal before ruling on the extension of time.
[1] (1998) 195 CLR 516
The action was commenced on 8 November 2004 in the Supreme Court of South Australia. Its history includes the transfer of the proceedings to this Court and various Directions Hearings caused by a self-represented plaintiff’s inability to file a satisfactory Statement of Claim.
Background
On 23 May 2003 the plaintiff was arrested and taken to the City Watchhouse, interviewed, and charged with two counts of larceny and one other irrelevant offence. In consequence of an incident which allegedly occurred immediately after the interview, the plaintiff was also charged with one count of assaulting a police officer in the course of his duty and one count of resisting that police officer in the execution of his duty. The plaintiff was remanded to the City Watchhouse and did not apply for police bail. At the time of his arrest, he was on bail in respect of a quite separate charge, having only been released from the City Watchhouse in respect of that charge a few hours prior to his arrest on 23 May 2003. The plaintiff appeared in the Magistrates Court on 26 May 2003 when the issue of bail was adjourned, and a warrant of remand issued. Thereafter on each appearance in the Adelaide Magistrates Court a warrant of remand was issued remanding the plaintiff in custody. On 11 August 2003 the plaintiff pleaded guilty to the larceny charges but not guilty to the respective counts of assault and resisting a member of the police force in the execution of his duty. The plaintiff was sentenced to 5 months imprisonment cumulative upon the unexpired balance of a previous non-parole period resulting in a head sentence of 2 years and 15 days. Following a trial in the Adelaide Magistrates Court on 10 March 2004 the plaintiff was convicted of the assault police and resist police charges. On 7 July 2004 a Justice of the Supreme Court allowed appeals against the convictions and ordered a re-trial on the charge of assaulting police. Subsequently a decision was made not to proceed with that charge.
In various documents said to constitute a Statement of Claim the plaintiff alleges that he was the victim of an assault by police in consequence of which he sustained a closed head injury. He also asserted an entitlement to claim damages for false imprisonment and damages for malicious prosecution. The Statement of Claim in its initial form was the subject of an order by a Master in the Supreme Court. The defendant had sought the summary dismissal of the plaintiff’s claim or alternatively the striking out of the Statement of Claim. By order made 1 March 2005 that Master declined to dismiss the claim but struck out the Statement of Claim with leave to the plaintiff to file a fresh Statement of Claim.
The plaintiff has filed amended versions of the Statement of Claim on 23 March 2005 and 11 August 2005. The defendant, complying with Rules 3.01, 46.18, 46A.02, 46.A04 and 67.01, issued a Notice of Specific Directions specifically evoking Rule 3.01 and stating in quite unequivocal terms that the relief sought was that the action be dismissed or alternatively the Statement of Claim again be struck out. That application was the subject of the hearing before the Master, which gave rise to the orders made on 29 November 2005. The application was supported by affidavits of the defendant’s solicitor. There is a distinction between an application to strike out on the ground that it does not disclose a reasonable cause of action and one on the ground that it is an abuse of process. As Perry J said in The State of South Australia v Barrett[2].
“The success or failure of a strike out application on the ground that the pleading does not disclose a cause of action turns on the pleading as to material facts, not the pleading of particulars….The application to strike out on the ground that the Statement of Claim does not disclose a reasonable cause of action must, of course, be determined having regard to the terms of the Statement of Claim, and that alone. However, an attack on a pleading on the ground that it is frivolous, vexatious or an abuse of process may be supported by affidavit or other evidence. The distinction is made clear in the following passage in the judgment of Bray CJ in Egan v The Commonwealth Minister of Transport (1976) 14 SASR 445 at 448:
“… if we reverse the order dismissing the action the respondent will remain at liberty to renew his application on the ground that the action is frivolous and vexatious. That ground, however, may well require some affidavit evidence or other explanatory material, whereas, where the application is to strike out on the ground that no reasonable cause of action is disclosed, the Court looks at the words of the pleading alone (Dey v Victorian Railways Commissioners (1949) 78 CLR 62 per Williams J at 109; Wenlock v Moloney (1965) 1 WLR 1238 per Sellers LJ at 1242-1243.) This principle is made specific in the English rule, but I think that the same principle applies where the rule is silent, as ours is. The question is what the statement of claim discloses, not what some other source of information might disclose. Before an action can be struck out on this ground it must plainly appear that the claim is so obviously untenable that it cannot possibly succeed no matter what amendments are made. It is unnecessary, I think, to cite detailed authority for this purpose. I refer to the cases collected under the heading “No Reasonable Cause of Action or Defence” at 302 of the English Supreme Court Practice 1973, Vol 1; see also Sinclair v Rankin (1907) 9 WALR 233, Rondel v Worsley [1967] 1 QB 443. A reasonable cause of action means one with some chance of success, however small, when only the allegations in the pleadings are considered: Drummond-Jackson v British Medical Association [1970] 1 WLR 688 per Lord Pearson at 698. If it has none, and if there is no chance that it can be endowed with one by amendment, then it can be struck out”.
[2] The State of South Australia v Barrett
Orders of the Master made 29 November 2005
On 29 November 2005 the Master delivered comprehensive reasons for dismissing the plaintiff’s respective claims for false imprisonment and malicious prosecution. The Master did not however dismiss the plaintiff’s case in its entirety. In striking out the Statement of Claim the Master gave leave to the plaintiff to file and serve yet a further Amended Statement of Claim limited to a proper pleading of the remaining cause of action arising from the alleged assault.
Pleading issues generally
Before a claim can be dismissed on the basis that a Statement of Claim does not disclose a reasonable cause of action, and cannot be redrafted in order to do so, the Court must be satisfied that the causes of action are unarguable or so untenable that they cannot possibly succeed or are manifestly groundless in the sense explained in General Steel Industries Inc v Commissioner for Railways (NSW)[3] and Porter v OAMPS[4]. In the latter case the balancing exercise was described as follows:
The overriding issue is the justice of the case. This includes the interests of justice in an applicant having access to the Courts to vent his or her grievances and have them judicially resolved, and the interests of justice in a respondent being properly forewarned of, and prepared for, the case that is alleged against him or her and in having cases with no arguable prospects of success quickly resolved.
[3] (1964) 112 CLR 125 at 129
[4] [2005] FCA 232; [2005] FCA 729
The application to strike out pleadings is to be determined on the pleadings alone. See Peek v Channel Seven Adelaide[5] and Kadeh v Gill[6]. In the latter case Doyle CJ said at [29]:
Unless there are circumstances of urgency, the only basis for making an order can be that the case is, as a matter of law and as a matter of fact, bound to fail.
[5] [2006] SASC 63 at [29]
[6] [2000] 211 LSJS 88
In determining whether a cause of action is bound to fail, the truth of the allegations pleaded is assumed for the purpose of the application.
The respective causes of action in false imprisonment and malicious prosecution are quite complex. Plaintiffs are required to prepare detailed and technical pleadings covering the myriad of elements making up the respective causes of action.
The plaintiff’s pleadings as considered by the Master in November 2003 were deficient in failing to plead the relevant elements as well as the material facts to support those elements. They were discursive and rambling with assertions irrelevant to the causes of action sought to be relied upon. The main complaint made by the plaintiff is that two police officers perjured themselves when giving evidence. Witnesses enjoy an immunity from liability and no action lies against them in respect of their evidence. In D’Orta-Ekanaike v Victoria Legal Aid[7] the majority of the High Court said at paragraph 39:
.... the disappointed litigant could not seek to demonstrate that witnesses had given ... perjured evidence or that witnesses had conspired together to injure that litigant .... It does not matter whether what is done is alleged to have been done negligently or even done deliberately and maliciously with the intention that it harm the person who would complain of it. The witness is immune from suit and the immunity extends to preparatory steps.
See also Cabassi v Vila[8]. I will now deal with each of the causes of action to see whether such a cause of action was even arguable.
[7] (2005) 214 ALR 92
[8] (1940) 64 CLR 130 at 141
False Imprisonment
As the Master pointed out, the plaintiff’s detention by the police on 23 May 2003 commenced with his arrest on larceny charges. That detention was lawful. The plaintiff conceded before the Master and before this Court on appeal that the original detention was lawful. There can be no dispute that from the 26 May 2003 when the plaintiff appeared in the Adelaide Magistrates Court he was detained pursuant to judicial order and there can be no cause of action with respect to false imprisonment after that time. The plaintiff’s complaint, that but for alleged false evidence with respect to the alleged assault, he would have been granted bail, is irrelevant to a cause of action for false imprisonment from that date. The Master considered the period between the lawful arrest on 23 June 2005 and the first appearance in the Magistrates Court on 26 May 2003. The documents tendered before the Master disclosed that bail was not applied for by the plaintiff and would in any event have had to have been refused, because the plaintiff was already on remand for numerous offences and was in breach of bail conditions. The Master concluded that on the facts most favourable to the plaintiff that he was lawfully detained from 23 May 2003 and accordingly a claim for false imprisonment could not succeed.
The Master was therefore entirely justified in dismissing the cause of action in false imprisonment. The claim was simply unarguable irrespective of the pleading deficiencies. As this is a rehearing in which I am free to exercise my own discretion, I conclude that even if the appeal had been instituted within time, this cause of action is bound to fail and the appeal accordingly must be dismissed on the merits.
Malicious Prosecution
This cause of action is in a somewhat different position. It cannot be said that on the facts such a cause of action could not possibly succeed if properly pleaded. The Master was placed in an unenviable position. The Master set out the five relevant elements of the tort, as follows:
1 That the plaintiff was prosecuted by identified individuals in the sense that the criminal charges were instituted or continued by those individuals.
2 That the prosecution was determined in his favour.
3 That the identified individuals acted without reasonable and probable cause in prosecuting him.
4 That the individuals acted maliciously in prosecuting him.
5 That the plaintiff suffered “damage” in the nature of impairment of liberty, pecuniary loss or reputation.
It was the second version of the Statement of Claim filed on 23 March 2005, which had been the subject of complaint by the defendant. By the time of the hearing the plaintiff had filed a further document dated 7 August 2005, to which the Master had regard as a proposed further amended Statement of Claim. The 23 March 2005 document pleaded only two elements of the tort of malicious prosecution. These were firstly to identify the relevant defendant as police officer A and no other joint defendant. Secondly the pleading alleged that the prosecution was determined in his favour. Apart from an assertion that the prosecutor made submissions about facts which were said to have subsequently found to be untrue, there was no pleading that the prosecutor acted without reasonable and probable cause or that he acted maliciously. The relevant damage related to the time spent in custody. The 7 August 2005 document was no more illuminating on these missing elements. That pleading did however badly assert that the prosecutor acted “dishonestly and in bad faith”. There were no particulars save that he had made allegations to the Court based upon statements made by witnesses to be called, including one of two versions of the incident allegedly given by another police officer W. Against police officer W it was asserted that he had committed perjury (contrary to the immunity rule), and that he had in fact assaulted the plaintiff.
Given the way the plaintiff had pleaded the cause of action, the Master was compelled to conclude that the plaintiff had failed to plead any allegation of malice by the prosecutor or that the decision to prosecute had been taken without reasonable or probable cause. Indeed, given the plaintiff’s incarceration on other charges, this was a rare case in which the plaintiff had to more specifically plead the Savill v Roberts[9] type damage. Generally in relation to a criminal prosecution the actionable character of those proceedings can be presumed to have caused damage to the reputation of the individual charged. See Rayson v South London Tramways Co[10]. This, however, is not a case where that can necessarily be presumed, because of the incarceration which occurred independently of the counts of alleged assault and resist police. The only question which remained was whether the Master ought to have permitted the plaintiff one last chance to properly plead this cause of action.
[9] (1698) 88 ER 1267
[10] (1893) 2 QB 304
It is a big step to strike out the cause of action, particularly in the case of an unrepresented litigant struggling to draft his own pleadings in a complex area of the law. As the Full Court of the Supreme Court in Kadeh at paragraph 40:
It does not follow that it was appropriate to [strike our the cause of action]. Ordinarily, the appropriate order would be an order striking out the Statement of Claim, with liberty to Mr Kadeh to amend his pleading.
The difficulty facing the Master was that the plaintiff had consistently failed to adequately plead his cause of action in malicious prosecution. He had pleaded very serious allegations against certain named police officers, but not in a way which identified the necessary elements of the tort. The Master inferentially concluded that such serious matters were required to be properly and expeditiously pleaded, and that it was unlikely that this would ever be achieved by the plaintiff.
This is not a case where it is alleged that the prosecution has been instigated by someone other than Police Officer A. See Martin v Watson[11] and Commonwealth Life Assurance Society v Brain[12]. Nor is it a case where it is alleged that the prosecutor’s discretion was overborne. The fact that the State of South Australia is the defendant contributed to an early confusion in the pleadings in that police officers W and A are both named. The fact remains that the plaintiff proceeds solely against W in respect of the assault and solely against A in respect of the malicious prosecution. There is no claim against W jointly or separately with respect to malicious prosecution. If the proceedings remained in the form considered by the Master, I would have had to consider whether in the exercise of my discretion I ought give the plaintiff one more opportunity to properly plead the cause of action in malicious prosecution. The reasons of the Full Court in Kadeh v Gill, and those of Goldberg J in Porter v OAMPS (No 1), would normally dictate that the plaintiff be afforded one final opportunity. The fact is, however, that the plaintiff subsequently purported to file two further documents. In a document dated 30 November 2005, and entitled “addition to outline of submissions”, the plaintiff makes further allegations of perjury. He again identifies police officer A as “the prosecutor”. By document identified previously as “FDN 23” the plaintiff had a further attempt at pleading the cause of action. The pleading is again grossly inadequate. For the first time there are the bald assertions that the prosecutor had committed perjury and, “was aware the allegations and charges were not based on facts”. If what is asserted is that at the time of the prosecution, police officer A knew that the plaintiff was innocent then that knowledge would be evidence both of malice and of the absence of reasonable and probable cause. The plaintiff does not however plead how it was that the prosecutor knew of its falsity. If he simply asserts that because the appeal to the Supreme Court was successful, the prosecutor should have known at an earlier stage with the benefit of hindsight that the prosecution could not succeed, this would not satisfy the element of malice. When considering the duties of a prosecutor, the Master had assumed that a prosecutor carried the onerous task specified in Mitchell v John Heine & Son Ltd[13] with respect to the element of reasonable or probable cause. That case is authority for the proposition that a prosecutor must believe that the accused is probably guilty of the offence. Whether that obligation is a correct statement of the law must now be in doubt. See A v New South Wales[14]. The test might now be that the prosecutor must merely be seized of sufficient information to warrant the laying of the charge and does not need to believe in the guilt of the accused. In A v New South Wales the Court of Appeal concluded that such a test
“protects a prosecutor from action for malicious prosecution should it transpire ...that over the course of proceedings potentially exculpatory evidence emerges, an accused raises a successful defence, witnesses fail to come up to proof or the credibility of evidence is successfully attacked”.
[11] (1996) 1 AC 74
[12] (1935) 53 CLR 343
[13] (1938) 38 SR (NSW) 466
[14] (2005) NSWCA 292
As to the question of damage the plaintiff has attempted to define the “additional” period of his incarceration in consequence of the alleged malicious prosecution. The fact that he was lawfully detained disposes of the claim for false imprisonment but not for malicious prosecution.
The fact is that the plaintiff has had an additional attempt to replead the cause of action following criticism from counsel for the defendant, in the hearing before the Master, about his failure to plead the elements of malice, the absence of reasonable and proper cause and Savill v Roberts damage. This attempt constitutes the 4 December 2005 document “FDN 23”, filed after the plaintiff had received the Master’s published reasons. The purported amendments do not adequately address the pleading defects, but simply make more allegations of perjury which run foul of the immunity rule; and badly assert that the prosecutor knew of the falsity of the statements made by police witnesses.
The Master was undoubtedly correct in ordering that “FDN 23” be uplifted and returned to the plaintiff. Had it been filed as yet another version of the Statement of Claim, it would have been struck out again for failing to adequately plead malice and the absence of reasonable and probable cause. It is apparent that the plaintiff does not understand the technical nature of the cause of action in malicious prosecution. Additionally, the allegations of perjury must not be pleaded in the Statement of Claim. It is one thing to plead that the plaintiff was falsely accused of conduct giving rise to a charge and that a prosecution was maliciously instigated and continued, and quite another to allege perjury.
I appreciate that the plaintiff is unrepresented and courts invariably grant indulgences not generally given to represented litigants. I am concerned that any further indulgence will simply cause further delays.
In this particular case there are serious allegations against the individuals named in the pleadings. They are the sorts of allegations which must be properly and expeditiously pleaded. Those individuals continue to be prejudiced by the delays in this action caused by the failure of the plaintiff to properly plead this cause of action.
I have considered long and hard as to whether the pleadings are in a similar state to those considered by Goldberg J in Porter v OAMPS (No 2) after he granted a further indulgence in a similar matter. Do the various attempts by the plaintiff to replead the cause of action in light of the Master’s reasons leads inexorably to the proper inference that the plaintiff is incapable of pleading a cause of action in malicious prosecution?
I have reluctantly concluded, in the exercise of my discretion, that the plaintiff ought be given one last chance to properly plead a cause of action in malicious prosecution. I note that he has been given leave to file a fresh Statement of Claim with respect to the alleged assault.
Having reached the conclusion that this is an appropriate case to give the plaintiff this final opportunity to plead the cause of action in malicious prosecution, I will extend the time in which to appeal.
There was an explanation for the plaintiff’s failure to appeal in time. He simply did not know he had to appeal. By document, FDN 23, within 5 days of the receipt of the Master’s reasons, he sought to “reinstate” the proceedings.
Having heard the argument however and having exercised my own discretion as indicated in O’Brien Lovrinov Crafter Pty Ltd v Corradini[15], I extend the time in which to appeal to 30 January 2006.
[15] (1999) SASC 159
The plaintiff is not entitled to replead the cause of action in false imprisonment.
I refer in passing to the other remaining cause of action for damages for assault. This was not strictly the subject of an appeal although the defendant sought to ventilate the question of striking out the entire cause of action. The Master struck out the Statement of Claim and gave liberty to the plaintiff to replead this cause of action. Further consideration was adjourned to Monday, 20 March 2006 at 9.30am. I note that in accordance with the order of the Master the defendant’s solicitor wrote to the plaintiff on 24 January 2006 identifying the need for particulars. The plaintiff should be capable of properly pleading the remaining cause of action. He filed a document entitled “Statement of Claim” on 6 February in purported compliance with the Master’s order. Whether that document does so comply is a matter for the Master. I point out that at some stage the plaintiff will be refused any further indulgences and he may well face his claim being struck out in its entirety unless those pleading defects are attended to expeditiously. See Badcock v Channel Seven Adelaide[16].
[16] [2006] SADC 7
In particular the failure to properly plead a cause of action in malicious prosecution after this final indulgence may well lead to the conclusion that the plaintiff is incapable of so pleading that cause of action.
The formal order of the Court is, therefore:
1.That the time in which the plaintiff may appeal from the order of the Master made on 29 November 2005 be extended to 30 January 2006.
2.That the appeal be allowed only to the extent that the plaintiff be given a final opportunity to properly plead a cause of action in malicious prosecution to be filed and served by no later than 4.00 pm on 29 March 2006.
3.That the matter be referred back to the Master’s list for further consideration. I vacate the Chamber appointment for 20 March 2006 to enable the preparation of a fresh amended Statement of Claim. I fix in lieu of that date Thursday 20 April 2006 at 10.30 am before the Master. The plaintiff may appear by telephone conference on that day.
4.The claim for malicious prosecution and the claim for assault as properly pleaded must be contained in one document which will also include the pleading as to damages.
5. That the plaintiff pay the defendants costs of and incidental to the appeal.