Tuxford v State of New South Wales

[2006] NSWSC 182

CITATION:	TUXFORD & ORS v STATE OF NEW SOUTH WALES [2006] NSWSC 182
HEARING DATE(S):	12 August 2005
JUDGMENT DATE :	24 March 2006
JUDGMENT OF:	Hulme J at 1
DECISION:	Orders deferred
PARTIES:	Paul Edward Tuxford Raymond James Lambie David William Rope State of New South Wales
FILE NUMBER(S):	SC 20222/04
COUNSEL:	Plainitffs: P Semmler QC; N Francey Defendant: J Maconachie QC; D Mallon
SOLICITORS:	Plaintiffs: Oates & Smith Defendant: IV Knight
LOWER COURT JURISDICTION:	Supreme Court (Master)
LOWER COURT FILE NUMBER(S):	12023/2003
LOWER COURT JUDICIAL OFFICER :	Master Harrison

- 19 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

HULME J

Friday, 24 March, 2006

20222/04

Paul Edward TUXFORD AND ORS v STATE OF NEW SOUTH WALES


JUDGMENT

1 HIS HONOUR: In these proceedings 3 Plaintiffs sue on their own behalf and on behalf of others. On 15 April 2004, Master Harrison ordered that these proceedings be transferred from the District Court into this Court. On 27 May 2004 she dismissed a Notice of Motion by the Defendant seeking an order under Part 8 Rule 13 of the Supreme Court Rules that the proceedings not be continued as representative proceedings. By Notice of Motion of 23 June 2004 the Defendant appealed from the Master’s decision.

2 In the course of an early hearing consequent on that appeal, Mr Joseph SC who was then appearing for the Plaintiff said that the Defendant had also raised what he called “pleading points”. Mr Joseph sought an opportunity of further amending the Statement of Claim. Ultimately, by consent, leave to amend was given and an Amended Statement of Claim filed on 22 June 2005.

3 On 25 July 2005 the Defendant filed a further Notice of Motion seeking orders:-

1. That the proceedings be dismissed pursuant to Part 13 Rule 5 of the Supreme Court Rules.

2. That the Amended Statement of Claim filed on 22 June 2005 be struck out pursuant to Part 15 Rule 26 of the Rules.

3. Alternatively, that paragraphs of the said Amended Statement of Claim identified in some written submissions be struck out pursuant to Part 15 Rule 26. (The written submissions refer to nearly all of the paragraphs.)

4 It is that Notice of Motion and the appeal from Master Harrison’s dismissal of the Defendant’s application on 27 May 2004 with which these Reasons are concerned. In light of what has occurred, it is the Amended Statement of Claim filed on 22 June 2005 which was the subject of contention before me. I may perhaps add that counsel for the Defendant stated that it was the pleading he was concerned to have struck out, not to have the proceedings dismissed. (Page 19 of the Transcript of 12 August 2005 is not completely accurate.)

5 (It has been convenient to continue to refer to the relevant provisions of the Supreme Court Rules, in particular to Part 8 rule 13 and to Part 15. There are provisions under the Uniform Civil Procedure Rules 2005 which are in materially the same terms – see Part 7 rule 7.4 and Part 14.)

6 To make the Reasons understandable some detailed reference to, and quotation from, the Amended Statement of Claim is required. In the document it is alleged that the Defendant operated the New South Wales Police Force and a number of persons who are said to have carried out the conduct complained of as members of that Force are identified. Putting aside matters which are not material to the issues canvassed before me, the tenor of the document is then to the following effect:-

“4. The Plaintiffs bring these proceedings on behalf of themselves and as representatives of the persons set out in Schedule “A” they being persons who:
(a) at all material times were members of NSW Police being employed by the State of New South Wales known as NSW Police; and
(b) at all material times in the course of their duties were seconded to Task Force “BAX” (“Task Force BAX”) which task force was operated as part of NSW Police. and/or
(c) were subject to the search of Task Force BAX as referred to in paragraphs 6 to 12 below and/or
(d) at various material times, during the period 24 October 1997 to 29 October 1997 were detained by conduct referred to in paragraphs 6 to 12 below (with the exception of the persons listed in Section 3 of Schedule A) and/or
(e) Were otherwise adversely affected by the search and/or detention referred to in paragraphs 6 to 12 below.
“5. …Task Force BAX operated from premises known and described as Level 3, 1-15 Francis Street, East Sydney in the Sate of New South Wales (‘the Francis Street premises’).
“6. On or before 24 October 1997 the Senior Officers of the Defendant wrongfully ordered that a search be conducted of Task Force BAX and the Francis Street premises on 24 October 1997.
PARTICULARS OF WRONGFUL ORDER
(a) The search was ordered following surveillance of members of Task Force BAX and installation of listening devices at the Francis Street premises which did not provide evidence of impropriety or wrongdoing of a kind which would justify the search as conducted and set out in paragraphs 7 to 11 below.
(b) The search was ostensibly to be carried out as an internal audit but in fact was an intrusive search involving the wrongful detention of the Plaintiffs and certain other members of Task Force BAX as set out in paragraphs 7 to 11 below.
(c) The order was unreasonable unnecessary and/or without lawful power.
“7. Pursuant to the said order, about 9.00am on 24 October 1997 certain of the Senior Officers and other agents and servants of the Defendant entered and wrongfully searched the Francis Street premises.
PARTICULARS OF WRONGFUL SEARCH
(a) (Nominated police officers) directed other Officers to conduct the wrongful search.
(b) The wrongful search extended to include seizure and search of the personal property of the Plaintiffs and those represented by them.
(c) The search was unreasonable unnecessary and/or without lawful power.
“8. In the course of the search the Plaintiffs and other members of Task Force BAX listed in Section 2 of Schedule A were wrongfully detained by” (and I summarise paragraphs (a) to (c)):
PARTICULARS OF WRONGFUL DETENTION 1
(a) Being ordered to remain in a confined area whilst their lockers and desks were searched and personal items removed in their presence;
(b) Being directed not to communicate with any one about the business of Task Force BAX or the search of the Francis Street premises.
(c) Not being permitted to leave the confined area including to go to the toilet without the escort of other officers, and
(d) “The detention (being) unreasonable, unnecessary and/or without lawful power.”
“9. During and after the search was conducted, the Plaintiffs and other members of Task Force BAX listed in Section 2 of Schedule A were directed to attend the office of Assistant Commissioner Small at Crime Agencies at Strawberry Hills in the State of New South Wales (“the Strawberry Hills premises”).
“10. Thereafter the Plaintiffs and other members of Task Force BAX listed in section 2 of Schedule A were wrongfully directed to respond to a Directive Memorandum.
“11. From 27 October 1997 until at least 29 October 1997 the Plaintiffs and other members of Task Force BAX listed in Sections 1 and 2 of Schedule A were directed to report at the Strawberry Hills premises between the hours of 8.00am and 5.00pm and were there wrongfully detained” by (and I summarise paragraphs (a) to (c)):
PARTICULARS OF WRONGFUL DETENTION 2
(a) Being directed to remain in a small room and not communicate with any one including each other about the business of Task Force BAX or the search of the Francis Street premises.
(b) Not being permitted out of the room including to go to the toilet without being escorted.
(c) Not being provided with any meal break or other form of break other than being escorted to the toilet, and
(d) “The detention (being) unreasonable, unnecessary and/or without lawful power.”
“12. At no time before intentionally performing the acts referred to in Paragraphs 6 to 11 did the Defendant, its servants and agents inform the Plaintiffs or other members of Task Force BAX of any allegation of impropriety being made against them.
“13. By reason of the matters aforesaid the Plaintiffs and the persons represented by them have sustained injury to their health and have suffered loss and damage.
CLAIM IN NEGLIGENCE
“14. At all times the Defendant, its servants and agents had a duty to exercise reasonable care not to expose the Plaintiffs and other members of Task Force BAX to an unreasonable risk of injury.
“15. The injuries suffered by the Plaintiffs and the persons represented by them were caused by negligence on the part of the Defendant, its servants and agents.
PARTICULARS OF NEGLIGENCE
(There are 14 of these which I do not find it necessary to repeat.)
CLAIM IN FALSE IMPRISONMENT
“16. Further or alternatively, by reason of the matters pleaded in paragraphs 4 to 11 the Defendant by its servants and agents caused for various periods the Plaintiffs and the persons represented by them to be wrongfully detained and deprived of their liberty thereby causing them harm.
“17. The wrongful detention was directly caused by the actions of the Defendant, its servants and agents.
CLAIM OF INTENTIONAL ACT CAUSING NERVOUS SHOCK
“18. Further or alternatively, by reason of the matters pleaded in paragraphs 6 to 11 the Defendant by its servants and agents deliberately did acts of a kind calculated to cause harm to the Plaintiffs and the persons represented by them.
“19. As a result of the Defendant’s, its servants’ and agents’ negligence, false imprisonment and intentional actions, each of the Plaintiffs and the persons represented by them (including the persons listed in Section 3 of Schedule A being persons not present but influenced by the wrongful conduct) have suffered and will continue to suffer loss and damage.
PARTICULARS OF LOSS AND DAMAGE
“Particulars of loss and damage for each of the Plaintiffs and the persons represented by them will be provided by individual Statements under Part 33 Rule 8A.”

7 There follow claims, on behalf of the Plaintiff and the persons represented, for damages, aggravated damages and exemplary damages.

8 In Schedule A to the Statement of Claim seven persons are named in Section 1, five in Section 5 and three in Section 3.

9 Despite indications to the contrary provided by the form of paragraphs 6, and 7 and the allegation of loss and damage “by reason of the matters aforesaid” in paragraph 13, I would infer that the Plaintiff seeks to rely on what are said to be 3 causes of action - negligence, false imprisonment and that for which Wilkinson v Downton (1897) 2 QB 57 stands as authority. That such is the intention of those acting on behalf of the Plaintiffs and those they represent was confirmed in submissions by counsel appearing for the Plaintiffs.

10 All of the Plaintiffs and the persons represented are alleged in paragraphs 15, 16, 18 and 19 to be entitled to succeed on the basis of each cause of action and it is clear that, at least to a large extent, each cause of action as relied on by each person is based on the events described in paragraphs 6 to 12. In that situation a contention on behalf of the Defendant that the case did not fall within Part 8 Rule 13 which, subject to any order the Court may make, permits proceedings to be commenced and continued on behalf of others providing that there exist “the same interest” in the proceedings cannot succeed. At least on the material drawn to my attention during the hearing, viz. the Amended Statement of Claim, the commonality of interest held by the Plaintiffs in the actions of the Defendant on and about 27 May 1995, satisfies the requirement – see Carnie v Esanda Finance Corporation Limited (1995) 182 CLR 398, Fostif Pty Ltd v Campbells Cash and Carry Pty Ltd [2005] NSWCA 83 at [157 – 199].

11 However the nature of at least 2 of the causes of action provide grounds for concluding that, in the exercise of the Court’s discretion, the proceedings should not be allowed to continue as representative proceedings. In a claim for false imprisonment, a plaintiff satisfies the obligation to establish his cause of action by proving the imprisonment or deprivation of liberty. It is then for a defendant if he can to justify or show the existence of a lawful excuse for the imprisonment, and this not only at the first moment it occurred but, the tort being a continuing one, throughout the period of imprisonment.

12 Such justification needs to be pleaded. To enable this to occur a defendant is entitled to know from the Statement of Claim when it is alleged any imprisonment, including that of the persons represented, commenced and the period(s) during which it continued.

13 The terms of the pleading indicate that some or all of the persons comprising Task Force BAX were suspected of some form of impropriety or wrong-doing. Common experience would indicate that as between 18 persons, the total number of Plaintiffs and persons represented, the bases for suspicion almost certainly varied and were liable to be stronger in the case of some persons rather than others. If, as seems clear, the Defendant intends to plead justification, it will need to do so in relation to each of the 18 persons and in these circumstances, it is quite inappropriate that the action proceed by way of a representative one.

14 Consideration of the law as stated in Wilkinson v Downton leads to the same conclusion. There the offending conduct was, by way of practical joke, the making of a statement to the plaintiff to the effect that something traumatic had happened to her husband. The result was described as a violent shock to the plaintiff’s nervous system, producing vomiting and other more serious and permanent physical consequences. Wright J said:-

“The Defendant has, as I assume for the moment, wilfully done an act calculated to cause physical harm to the Plaintiff – that is to say to infringe her legal right to personal safety, and has in fact thereby caused physical harm to her. That proposition without more appears to me to state a good cause of action, there being no justification alleged for the act …
It remains to consider whether the assumptions involved in the proposition are made out. One question is whether the Defendant’s act was so plainly calculated to produce some effect of the kind which was produced that an intention to produce it ought to be imputed to the Defendant, regard being had to the fact that the effect was produced on a person proved to be in ordinary state of health and mind. I think that it was. It is difficult to imagine that such a statement, made suddenly and with apparent seriousness, could fail to produce grave effects under the circumstances upon any but an exceptionally indifferent person, and therefore an intention to produce such an effect must be imputed…”

15 The attention given in this passage to the nature or extent of the harm produced on the plaintiff indicates that that is something relevant to the existence of the cause of action. See also Wainwright v Home Office [2004] 2 AC 406 at [47]. In those circumstances, the nature and/or the extent of the harm done to each individual would seem to need to be identified in the Statement of Claim. Furthermore, given the nature of the Defendant’s actions complained of, and that the Plaintiffs and persons represented were all police officers – accustomed one would anticipate to a degree of stress – one would not expect them to have all had the same reaction or degree of reaction to the events complained of so as to make some generic statement of the harm both possible and believable.

16 Furthermore, although I do not find it necessary to rely on the matters adverted to in this paragraph, it is to be observed that Wright J referred to the issue of justification for what was done. I do not suggest that his Lordship was intending thereby to import into this area the law of justification as it operates in the area of false imprisonment but his remarks certainly raise the possibility that the Defendant may both wish to and be able to defeat the claim of one or more of the parties complaining upon grounds peculiar to that one or more. This also argues for requiring separate pleading of those features not common to all and for all of those represented to have to be parties. Even if possible, it is not in the least satisfactory for the Defendant to have to seek to plead against those merely represented, matters which apply to them only individually.

17 In addition to the factors to which I have referred, there are others which argue in favour of an order precluding the proceedings continuing as representative proceedings. One is that it seems to me likely that the issues of the impact of what occurred on the persons complaining individually are likely to be those occupying by far the greater proportion of the time taken in the hearing of the proceedings compared with consideration of what it was the Defendant did. Secondly, one cannot but be conscious of the fact that in representative proceedings generally, there is a tendency on the part of those acting on behalf of the Plaintiff’s to prepare as it were with a broad brush, and not give proper attention to the individual issues that arise. The scant attention that has been given in the Amended Statement of Claim to the issue of harm suffered is an indication that that is what has occurred in this case and, as will become apparent, when I turn to the details of the pleading itself, there are others.

18 Thirdly, the Plaintiffs and the persons represented total but 18 persons. To require that their individual circumstances where these are relevant be specified and in the preliminary stages of the proceedings be dealt with separately is not likely to be a major imposition, is likely to contribute to efficiency and should not impact in any deleterious way on the preparation or running of those issues where their interests are identical. Accordingly, subject to what follows, I propose to order that the proceedings not continue as proceedings wherein the Plaintiffs represent any other person.

19 In so deciding I should recognise that I am differing from the Master who took the view, inter alia, that a great deal of Court time would be devoted to ascertaining what took place during 24 to 29 October. That may well be so but it is not a reason why the aspects of the case relating to the situation of individual persons interested in the relief sought should not also receive the attention appropriate. Furthermore, should it appear when the case is approaching trial that consideration of the events of 24 to 29 October merits a separate hearing, there is no reason why the approach I have taken should interfere with implementation of that course. There may also be some common issues on the issue of damages, such as wage rates and prospects of promotion. Again, the course I have adopted should present no impediments in that area.

20 The Master also referred to the fact that the Defendant had filed a defence and thus demonstrated that it could plead to the then Statement of Claim. That is clearly a consideration to which regard should be had. However, need has been seen on the Plaintiffs’ side to refine the Statement of Claim. Fuller consideration of the issues that arise has demonstrated to me that they merit more definition than has been afforded to them hitherto and I do not regard the fact that the Defendant managed to plead some time ago as a compelling reason why matters should not be done properly now.

21 I turn then to the “pleading points”. I can say at this stage that so many are the deficiencies in the pleading and so important are some of them that the pleading should be struck out. Having reached this conclusion I do not regard it as necessary to mention all of its defects but at least enough to indicate why I have reached the conclusion just expressed.

22 Paragraph 4 was criticised as not alleging or forming a material component of any cause of action. Counsel for the Plaintiff responded by saying the paragraph was prefatory and directed to the requirement of Part 8 rule 13 that there be a commonality of interest. That response and my earlier conclusions mean that it is not strictly necessary for me to deal with this paragraph but it may be pointed out that the inclusion of “and/or” in each of sub-paragraphs (b) to (e) means that the commonality of interest may be no more than that secondment to Task Force BAX. That is hardly sufficient, particularly as it appears from sub-paragraph (d) and elsewhere that the persons named in section 3 of Annexure A to the pleading were not detained.

23 Paragraph 6 suffers from a number of deficiencies. Firstly, it alleges the ordering of a search “of Task Force BAX”. The description of “Task Force BAX” in sub-paragraph 4(b) indicates it is not a legal entity but, it would appear, some unincorporated group. If it is intended that the paragraph should refer to individuals it should say so.

24 Secondly, the paragraph alleges the wrongful ordering of a search of the Francis Street premises. Earlier references to those premises would suggest they were in the possession and under the control of the Defendant. Nothing in the paragraph, in the particulars thereunder or otherwise in the Statement of Claim provides any grounds for the allegation that the ordering by officers of the Defendant of a search of premises in its possession or under its control was wrongful.

25 Thirdly, Part 15 rule 6 requires that each matter shall, so far as convenient be put in a separate paragraph. Paragraph 6 refers to 2 matters – the ordering of a search and its wrongfulness. There is no justification for including them in the one paragraph.

26 The particulars of matters alleged in the paragraph would seem directed to the topic of wrongfulness. With the exception of the claimed absence of power all, even in combination, are incapable of supporting the claim. To say as sub-paragraph (a) does that two matters, namely surveillance and listening devices did not provide evidence of wrongdoing says nothing on the topic of whether there might not have been other, indeed many other, items justifying or at least not making it wrongful to inspire the ordering of a search.

27 Sub-paragraph (b) refers to matters in the execution of the search. There is no allegation that the search was ordered to be conducted in that manner and in this situation the manner in which the search was conducted cannot bear on the wrongfulness of a search being ordered at all. The sub-paragraph also lacks clarity.

28 Sub-paragraph (c) is embarrassing in providing no basis for the first 2 characterisations advanced. Given what I have said about possession and control of the premises, the allegation of “without lawful power” is surprising.

29 Paragraph 7 suffers from many of the defects to which I have adverted in relation to paragraph 6 and I shall not repeat them. It is also not clear whether the complaint is of the search being of the premises or of the personal property of the Plaintiffs and those represented by them or of both. Sub-paragraph (a) is not a particular of the search but another allegation.

30 Paragraph 8 again covers more than one subject. It and its particulars display a lack of appreciation of the ingredients of an action for false imprisonment. Sub-paragraph (d) takes the same form as other sub-paragraphs I have previously criticised.

31 In that what paragraph 9 says is largely repeated in part of paragraph 11, paragraph 9 seems unnecessary. If so Part 15 rule 8 is offended. If there was some difference in timing between the events in paragraphs 9 and the similar part of paragraph 11, so as to refer to some different event, the difference should be indicated.

32 Paragraph 10 deals with 2 matters – the making of a direction and its wrongfulness. There is no justification for including them in the one paragraph.

33 Paragraph 11 suffers from the defects to which I have referred when considering paragraph 8.

34 The group of paragraphs between 6 and 11 seem to exhibit some belief in the pleader that it is sufficient to do little more than to describe events and characterise events as “wrongful” or “unreasonable, unnecessary and/or without lawful excuse” to provide a foundation for a claim for damages. Such an approach is itself wrong.

35 Paragraph 12 takes the form of an allegation of damage consequent on the matters previously referred to. That might be unexceptionable if those matters constituted the other portions of one or more causes of action. Most simply do not. Indeed there has been no attempt prior to paragraph 13 to allege any cause of action except false imprisonment. Furthermore, given the presence of paragraph 19, paragraph 13 would seem to be simply surplusage.

36 There is no express allegation that the Defendant failed to exercise the reasonable care referred to in paragraph 14. It may be that paragraph 15 in its reference to “negligence” was intended to have this operation but paragraph 15 in terms is directed to the topic of causation. Paragraph 15 also assumes that the Plaintiffs have suffered injuries. Nor is there any allegation that the Plaintiffs or those whom they represented were subjected to an unreasonable risk of injury.

37 The particulars of negligence are also embarrassing, inter alia, upon grounds of their vagueness and repetition. They display many of the deficiencies of the particulars adverted to in State of New South Wales v Heins [2005] NSWCA 258.

38 I have not thought it necessary to quote these verbatim and they are difficult to summarise. It is sufficient if I say the following. In sub-paragraph (a) it is not apparent whether the injury referred to was physical, mental or both and, particularly given that the complaint relates to the Defendant searching what would seem to have been its own premises by what criterion “to properly investigate” is to be judged. Sub-paragraphs (b) (e) and (g) contain a large degree of unnecessary repetition. In sub-paragraph (g) the reference to “civil rights” is in context, utterly devoid of any clear meaning.

39 Sub-paragraph (i) provides no real indication of what it is the Defendant is said to have done and no indication of what the Plaintiffs contend the Defendant should have done.

40 The allegation in sub-paragraph (j) that the Defendant failed to provide a safe system of work would seem in light of the allegations in the Statement of Claim to be somewhat novel – see State of New South Wales v Paige (2002) 60 NSWLR 371 at [78]. In its novelty it fails to illuminate. If it is to be pursued the particular matters constituting failure should be identified as should be the steps which the Plaintiffs allege the Defendant should have taken to avoid the failure alleged.

41 The allegation in sub-paragraph (k) that the Defendant “failed to appropriately protect” gives no indication of the standard said not to have been met or of what it is the Defendant did or should have done and which amounted to the failure alleged.

42 Sub-paragraph (l) contains no indication of the actions relied upon nor indication of the type of risk or injury referred to. In the context of a particular of negligence, these matters are material.

43 Sub-paragraphs (m), (n) and (o) each suffer from a defect in that their opening word is “negligently”. It is hardly a particular of negligence to say that a Defendant “negligently” did something. All three sub-paragraphs also provide no basis for their allegations of “unreasonable (and) unnecessary”. In paragraph (m) there is no identification of the purposes said to be wrongful or on what basis they are said to be wrongful.

44 A number of the sub-paragraphs are wide enough to encompass matters other than those that apparently occurred in or about 27 to 29 October 1997. The times of the occurrences relied on should be made clear.

45 Paragraph 16 alleges that “by reason of the matters pleaded in paragraphs 4 to 11 the Defendant … caused … the Plaintiffs … to be wrongfully detained ….” Having regard to the breadth of “the matters pleaded in paragraphs 4 to 11, many of which have no relevance to a claim of false imprisonment, the allegation is just illogical. Furthermore, the reason, motive or factors contributing to any wrongful detention are, in terms of pleading a case of false imprisonment, irrelevant. If the pleader had merely intended to say that “by the matters pleaded …”, he or she should not have included the words, “reason of”.

46 As I said earlier, a defendant faced with a claim of false imprisonment is entitled to know with as much specificity as possible, the time(s) when and during which the false imprisonment is said to have occurred. While some indications in this regard are provided in paragraphs 8 and 11, those indications are by no means comprehensive. For example, paragraph 11 says the events occurred “until at least 29 October 1997” and it is thus not clear whether the Plaintiffs are complaining of imprisonment after that date. Paragraph 11 also alleges that the persons referred to were directed to report at particular premises between certain hours and were detained there, but contains no allegation as to whether indeed the period of detention coincided with the period encompassed by the direction.

47 Paragraph 16 also claims that “the Plaintiff’s and the persons represented by them” were wrongfully detained. In the earlier parts of the pleading – see paragraphs 4(d), 8 and 11 - it seems clear that it is alleged that only the persons named in sections 1 and 2 of Schedule A were detained. The various parts of pleading need to be reconciled.

48 Paragraph 17 simply repeats, albeit in the passive rather than the active voice part of the content of paragraph 16 save and except for the inclusion of the word “directly” which adds nothing of any consequence. Paragraph 17 is pure surplusage.

49 I turn to paragraph 18. The inclusion of the word “nervous shock” in the heading to paragraph 18 when contrasted with the use only of the word “harm” in the paragraph is calculated to confuse. One of the terms should be changed so that they accord. The matter was not debated so I say nothing more than I have as to whether one, rather than the other, of these expressions is sufficient for the purposes of the cause of action.

50 The next difficulty lies in the reference “by reason of the matters pleaded in paragraphs 6-11”. Firstly, it is not clear whether the “matters referred to” are identical with the “acts” referred to later in the paragraph. The multiplicity and breadth of allegations in paragraphs 6-11 are also calculated to embarrass, particularly if “matters” and “acts” are not intended to have an identical meaning. Included in paragraph 6 is the allegation that officers of the Defendant “wrongfully ordered” that a search be conducted and in paragraph 7 that officers of the Defendant “wrongfully searched” the Francis Street premises. It is not apparent whether in paragraph 18 the Plaintiffs and the persons represented are relying so far as these particular matters are concerned, on merely the order and the search or also on the “wrongness” of those events.

51 The generality of the references to “acts” and that these were “of a kind calculated to cause harm to the Plaintiffs and the persons represented by them” is also calculated to create difficulties. The way in which the paragraph is expressed would seem to suggest that each Plaintiff is relying not only on events done as it were to him but also on actions of the Defendant directed at others. It is not clear whether the paragraph is intended to be construed distributably or whether each Plaintiff is relying not only on acts done towards him but also acts directed at others, although the indication in paragraph 19 that even persons not present are relying on actions of the Defendant, would suggest that the wider interpretation of paragraph 18 is intended.

52 Having regard to the facts of Wilkinson v Downton, where the actions of the defendant were directed specifically at the plaintiff there, these matters may not be simply academic – see Bunyan v Jordan (1936-1937) 57 CLR 1.

53 In light of my conclusions and the nature of the application as it was conducted, the Amended Statement of Claim should be struck out, and the Plaintiff given an opportunity to replead. However, the action should not continue as a representative action and, subject to the following remarks, all of the parties represented should become Plaintiffs if they so desire.

54 Remarks made during the course of proceedings indicated that there may be some limitation issues which arise. These have not been addressed in any detail by the parties and accordingly I should make no order now which might have the effect of depriving the Defendant of any limitation defence which is presently open to it. Nor should I make an order which, so far as the Limitation Act is concerned, prejudices any of the persons whom the Plaintiffs claim to have been representing. Accordingly I propose to stand the proceedings over for a short time to enable the parties to address any complications that arise but to indicate that, subject to anything that may be said as to matters I have not yet decided, to indicate that the orders I propose are:-

1. That the proceedings not continue as proceedings wherein the Plaintiff’s represent any other person;

2. That the existing Amended Statement of Claim be struck out.

3. That the Plaintiffs have liberty to re-plead.

4. That any of the presently represented parties who wish to become Plaintiffs should serve on the Defendants within a specified period a draft expanded version of any Further Amended Statement of Claim, extended so as to incorporate such of the presently represented parties as wish to become Plaintiffs in the proceedings.

5. That the proceedings stand over for a short time and then for some further reasonable period for these matters to occur, for any draft or other pleading to be served and considered and for the parties to then make such further applications as seem to them appropriate.

55 There is one further matter to which I should advert. The history of the Plaintiff’s pleadings includes the following:-

20 October 2000 A Statement of Claim was filed in the District Court;
16 March 2001 An Amended Statement of Claim was filed in the District Court;
13 June 2001 A Further Amended Statement of Claim was filed in the District Court;
22 March 2005 A Further draft Statement of Claim appears to have been served; and.
22 June 2005 Another Amended Statement of Claim was filed in this Court

56 On 23 March when the proceedings first came before me, some significant criticism, including by myself, was made of the document of 22 March 2005 in which the Plaintiff’s claims were then defined. While addressing some of those criticisms, the draftsman of the document filed on 22 June has chosen not to comply with others. Although there would seem clearly to have been events or delays for which the Plaintiffs are not responsible, at some stage the view may be taken that the Plaintiffs have had all the liberty to amend that should be granted.

57 At this stage the only orders I will make are:-

(i) that the proceedings stand over to 10 April 2006 at 9.30 before me for orders consequent on these Reasons and for directions.
(ii) that the parties have liberty to approach my Associate to arrange for some commonly convenient other date in lieu.
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