Vats v Allen
[2015] VSC 501
•17 September 2015
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
S CI 2015 00161
| PRAVEEN VATS | Plaintiff |
| v | |
| MICK ALLEN and others | Defendants |
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JUDGE: | MUKHTAR AsJ |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 10 September 2015 |
DATE OF JUDGMENT: | 17 September 2015 |
CASE MAY BE CITED AS: | Vats v Allen and others |
MEDIUM NEUTRAL CITATION: | [2015] VSC 501 |
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CIVIL PROCEDURE ― Summary dismissal sought by defendant ― Plaintiff’s claim having no real prospects of success ― Police impoundment of motor car for road traffic offence ― Allegation of police discourtesy and rudeness ― Allegation that impoundment unlawful ― Allegation that Road Safety Act invalid ― Need to show recognisable civil cause of action ― ― No grounds for amendment to save claim ― Proceeding dismissed
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | In person | |
| For the Defendants | Ms J F Swanwick | Victorian Government Solicitor’s Office |
HIS HONOUR:
On 19 January 2015 the plaintiff Mr Praveen Vats filed a writ making claims against three officers of Victoria Police: a constable and two senior constables. The relief or remedy he seeks is a written apology from them for their actions; a ‘liquidation of the penalties’ imposed on him by them; and punitive damages. The claim is based on an incident which occurred in a routine road traffic intercept during which the police officers discovered that Mr Vats was driving a car when his driver’s licence was suspended. The police then impounded his car, as they believed they were empowered to do under the Road Safety Act as it was his second offence for driving whilst disqualified.
On various grounds, Mr Vats alleges that the impoundment was unlawful. He also alleges, in general terms that the police officers were rude and discourteous, and the first defendant unlawfully refused to identify himself when asked by the plaintiff to do so beyond saying his name was Mick. The statement of claim alleges a farrago of wrongdoing by these policemen under various statutes, State and Federal. He looks to the Crimes Act of Victoria and the Crimes Act of the Commonwealth. To add to the variety, he also alleges breaches of the Commonwealth Public Service Act, which requires an Australian Public Servant to treat everyone with respect and courtesy and without harassment. He said he was mocked. His case rose to saying that there were issues under the Commonwealth Constitution including a contention that in impounding his car the police were unlawfully exercising the judicial power of the Commonwealth under Chapter III of the Constitution. He says the Road Safety Act was to be struck down under s 109 of the Constitution as being inconsistent with Commonwealth law; that under s 118 this Court was bound to give full faith and credit to the Commonwealth Crimes Act under which the police had committed crimes against him and his property. The grievance seems to be that by impounding his car, the policemen’s exercise of judicial power was an attempt to pervert the course of justice; constituted the crime of obtaining property by deception; and constituted the crime of aggravated burglary. He was also uninhibited in alleging and submitting that the Road Safety Act, whence derived the police power to impound, was invalid by operation of the Imperial Acts Application Act.
On 10 September 2015 I allowed the defendant’s application to summarily dismiss this proceeding on the ground that there was no real prospect of success. I found the case was bound to fail even if I assumed the facts to be correct as alleged, and that no amendment to the case could save it from being bound to fail.
Before making that order I made two other orders which I should mention for completeness.
First, I ordered that there be a joinder instantly of the State of Victoria as fourth defendant. That is because under s 74 of the Victoria Police Act 2013 it is the State that is liable for a ‘police tort’ unless the State decides to plead and prove ultimately the defence of serious and wilful misconduct by a police officer. Other provisions in the Act describe what is meant by a ‘police tort claim’ to which there is no need to make reference presently. The State of Victoria was clearly a necessary and proper party.
Secondly, I also made an order setting aside, in whole, a subpoena filed by Mr Vats to the Chief Commissioner of Police to produce three documents. The first was the oath of office which policemen take in Victoria. The second was to produce ‘Laws which authorise Victoria Police Officers, to impound a person’s vehicle (i.e. exercise judicial power).’ Coercive production of both of those documents was in my view a frivolous use of subpoena process. The oath is to be found by reference to s 50 of the Victoria Police Act. The impoundment occurred under the Road Safety Act and statute law is publicly available. It is for him to show the impoundment was unlawful. The third document subpoenaed was evidence that his driving licence was under suspension on the date in question. The utility of the subpoena became neutralised because the State produced to the court detailed statutory certificates from the Roads Corporation to show that Mr Vats has a multitude of demerit points for traffic offences (mainly speeding) and had his licence suspended for one month in December 2006; again in August 2010 for one month; again in March 2011 for six months; in June 2012 had charges proved against him for driving whilst suspended; and had his licence suspended for 6 months on 1 November 2014. Thus on the day when he was intercepted as alleged in this case on 3 November 2014, he was suspended from driving. Ultimately, on this application he did not dispute any of these facts. He said he did not realise he was suspended. But this is a strict liability offence. His ignorance is no defence. Even if a Proudman v Dayman type defence is open for an honest and reasonable belief as a matter of defence to a charge, it matters not because the power to impound under s 84F of the Road Safety Act conferred where the police officer acts on reasonable grounds. The unchallenged fact is: he was suspended.
I gave my reasons ex tempore for dismissing his claim. By these reasons I shall recapitulate in essence those reasons. In doing so I shall abstain from dealing copiously with the many arguments put zealously by Mr Vats which I am afraid to say made no sense or showed a misunderstanding about the interrelationship or coexistence of State and Federal law, the distinction between a criminal statutory offence and a civil cause of action, and a misunderstanding at a basal level of certain parts of the Constitution on which he stridently relied. Courts have to make allowances for litigants in person and ensure that there is nothing amidst the misguided submissions which might have the germ of a sustainable argument. But in this case I could not see one. It became apparent in Court that much of his submission was conceived from internet sites.
Mr Vats’ whole claim turns on the following alleged facts. On 3 November 2014 he was driving on High Street Road. He executed a U-turn. A police car came up from behind with flashing lights. He stopped his vehicle. The first defendant, who was dressed in a Victoria Police uniform, came to the driver’s side window. This policeman did not have a name badge. I shall now quote directly from the alleged conversation:
(a) PV: Hello
(b) 1st defendant: Licence please!
(c) PV: Yes, of course. But, sorry who are you? Your name tag is not visible.
(d) 1st defendant: I’m Mick, I never wear my name tag (looking angry).
(e) PV: You say you are Mick, but you could be anyone. Can I see your name tag please, can I see your ID please?
(f) 1st defendant: No!
(g) PV: Well, if you are not going to show me your ID, I’m not going to show you my licence.
(h) 1st defendant: (Clearly very angry, baring his teeth and shouting at PV in a hissing tone) I’m going to charge you!
(i) PV: Charge me with what??
(j) 1st defendant: OK! This is what you want! I am going to charge you!
(k) PV: (Again) Charge me with what? (now he was really angry, his arm was by his side, PV noticed he had a gun in his holster, PV was getting scared).
(l) 1st defendant: Alright! This is what you want! I am going to charge you (started to move away from the car, as if to get something, perhaps withdraw a weapon?)
(m) PV: OK, OK. I’ll show you my licence.
(n) 1st defendant: Oh! So now you want to show me your licence (with a contemptuous smirk, took PV’s licence and walked away).
(o) PV Stepped out of the car. Two more uniformed police officers appeared at the scene, Phil Davis (2nd defendant) and Nathan Hames (3rd defendant).
(p) PV: (Distressed) I want to phone a friend.
(q) 1st defendant: NO! You can’t phone anyone.
(r) PV Was scared by this time and just complied.
(s) 1st defendant: Your licence is suspended, I am going to impound your car.
(t) PV: This is the first I’ve heard of it (the suspension), you can’t impound this car. This is not fair, not lawful. You’ll be held accountable for this in a court of law. (1st defendant was now laughing and sneering at PV).
(u) 2nd defendant: Ya! Good luck with that…. Mate!
(v) PV: (To the 3rd defendant) Which police station are you from?
(w) 3rd defendant: I’m from the Booze Bus.
(x) PV: How can you be from Booze Bus? Which police station are you from? Who is your commanding officer?
(y) 3rd defendant: (Stood there, silent and did not answer).
(z) PV: Realised that he couldn’t reason with these men. He gave up, put his hands up in the air and said ‘you do what you have to do’ and later messaged his friend, who picked him up. PV was given a slip of paper. Soon afterward, PV left.
Mr Vats had no reason to think that the person in police uniform was an imposter or assuming the designation. I think it fair to infer that his refusal to produce his licence if the policeman was not going to show him identification created some tension. Ordinarily there would be no need for a citizen to insist on identification at the outset. Whatever the obligation may be for a policeman to identify himself (a subject I shall return to later) Mr Vats does not say he was relieved legally from his obligation to show his licence. The Court does not have the policeman’s side of the story. He may say he was antagonised; and the fact is, Mr Vats was driving whilst disqualified. On this application I proceed on the assumption of the truth of Mr Vats’ account of what happened as I have reproduced it from the writ.
The application for summary dismissal was, if I may say so, aided by a most able submission by Ms Swanwick, counsel for the defendants. As was submitted, the claim can be analysed into two distinct aspects of the policemen’s alleged conduct. First, it is their alleged discourteous or dismissive manner. This is based upon a refusal by the first defendant to identify himself beyond the name of Mick. Secondly, there is the alleged unlawful impoundment of the vehicle. I shall deal with each in turn.
The allegation is that the policeman’s failure to identify himself breached the Crimes Act(Vic) which requires a police officer to identify his name, rank and place of duty upon request: see s 456AA(4) and s 456AA(5). Refusal to do so is a summary offence. It is plain these provisions give rise to criminal or quasi criminal offence, not civil liability. As was submitted, there is no civil counterpart capable of giving rise to a cause of action for that alleged conduct.
Mr Vats then turned to s 13(3) of the Public Service Act of the Commonwealth. That requires public service employees to treat people with respect and courtesy and without harassment. Breaches of that provision are dealt with by way of an administrative process. There is no statutory civil liability. But, as was submitted, this does not apply to Victorian policemen because they are not Commonwealth public servants. The Victorian equivalent contained in the Public Administration Act 2004 expressly provides that the public sector values do not create any legal right or give rise to any civil cause of action: see s 7(1) and 7(4).
Thus, there is no cause of action at common law or statute which provides a remedy for discourtesy by a policeman or a failure to identify himself or herself. It is something for which a policeman may be prosecuted summarily either by the prosecuting authorities or by private prosecution. Mr Vats spontaneously asked the court to treat this proceeding as a private prosecution which of course I was not willing to do. Indeed it is not lawfully competent to do, as criminal prosecutions can only be conducted under the procedures stated under the Criminal Procedure Act.
Of course, this does not mean that steps alleging police misconduct or improper conduct cannot be taken by the aggrieved citizen in other ways. Citizens have recourse to the complaints and disciplinary regime under the Victoria Police Act: see s 166 and s 167. It is enough to say that such a complaint would go to Professional Standards as it is commonly known. That instigates a course of possible investigation, hearings, findings and sanctions. I do not say there are grounds for a complaint. I say only that Mr Vats has set about on an imaginative and sensational course, involving Court resources, alleging crimes and unlawful activity for an act of discourtesy when a less pugnacious course would have been to take his complaint of discourtesy to Victoria Police for internal consideration. It is here I should say that in correspondence in Court, the Victorian Government Solicitor’s Office tried courteously to dissuade Mr Vats from proceeding with this case on the current pleadings only to be met with allegations from him that the VGSO was incompetent or corrupt and had itself engaged in conduct perverting the course of justice.
I turn now to the question of the lawfulness of impounding his vehicle. As Ms Swanwick submitted, it is only if the police acted unlawfully or beyond power that any conceivable civil cause of action could exist for the impounding of Mr Vats’ vehicle. She has demonstrated carefully that the impoundment of the plaintiff’s vehicle occurred under or in accordance with the Road Safety Act. Mr Vats had no answer at any of this. He returned to his theme that the police were exercising judicial power contrary to Chapter III of the Constitution; the Road Safety Act was invalid under s 109 of the Constitution; and that the impoundment was aggravated burglary under the Crimes Act (Vic). When pressed to identify the Commonwealth laws that covered the field and with which the Road Safety Act clashed, Mr Vats looked to s 28 of the Crimes Act (Cwth) which concerns an interference with a person’s right to exercise a political right or duty. I cannot see how that has any application unless it concerns his right to insist on the policeman identifying himself. But even so, that provision at best attracts Commonwealth criminal liability and forms no basis for a civil cause of action in a civil proceeding.
This is what the court had to deal with. This was all argument by assertion and made no sense, I am afraid to say. Moreover, Mr Vats seemed to content himself with references to the Constitution and the Judiciary Act and other Commonwealth laws but when pressed by the Court to make the argument, he simply could not do so believing it was enough for him to merely raise them and then transfer responsibility to the Court to look into them. It did not stop there. There was a hint of the tort of misfeasance in public office. I need not look into the element of this tort in detail as such a case would be hopeless unless it could be shown the exercise of power was invalid and unlawful (and actuated by malice). But the impoundment has been shown to be lawful, without contest by him on the application. Then there was a suggestion that the breach of the Victoria Police oath of office gave rise to a civil remedy. That is absurd. At best, it might enliven a complaint process for internal investigations.
For what it is worth, and adopting Ms Swanwick’s research and submissions the steps under the Road Safety Act are as follows:
(a) the police can impound the vehicle if they believe on reasonable grounds it is being used in the commission of a ‘relevant offence’ – s 84F(1);
(b) a relevant offence is either a tier one relevant offence or a tier two relevant offence;
(c) a tier one relevant offence means inter alia a second or subsequent offence against s 30(1);
(d) it is an offence under s 30(1) (subject to s 30AA) for a person to drive a vehicle whilst their licence is suspended;
(e) when Mr Vats was intercepted his licence was suspended; a previous judge of driving whilst suspended was also proved by a court on 23 July 2012;
(f) accordingly, on the date Mr Vats was intercepted by the police, the police had reasonable grounds to believe his car was being used in the commission of a second offence of driving whilst disqualified in which case they were empowered to lawfully impound the vehicle under s 84F(1).
Mr Vats had no answer to any of this. The most he could say was he did not realise he was disqualified from driving. When pressed by the court he said he did not doubt the facts as exposed by counsel.
He then changed course radically. He sought the court’s leave to amend his statement of claim to add, first, a charge of assault. Secondly, he said that he discovered there was now a caveat on his vehicle imposed by the police and he sought to challenge the lawfulness of that. I was not given any understanding about that at all. No documents were produced, and I cannot tell if it is related to the impoundment. Thirdly, he wished to challenge the legal validity of the Road Safety Act. He sought to contend that laws of forfeiture were beyond the legislative competence of Victorian parliament.
I refused leave to amend. In my view there was no real prospect of establishing an assault even assuming the facts to be as alleged. Not all threatening acts constitute assault. Under the law of assault, a plaintiff must show an apprehension of actual physical contact. The nature of the act must be such as to put the plaintiff in apprehension of immediate physical violence: See Balkin and Davis, Law of Torts (4th ed) at [3.16]. Returning to the account of conversation, I see no real prospects of success for a case in assault. Analysing his account of the conversation it can be pulled apart as follows. The words ‘I am going to charge you!’ do not constitute an assault by any means. There is no threat of physical contact. The words do not convey any harm. The policeman uttered those words when Mr Vats said ‘Well, if you are not going to show me your ID, I’m not going to show you my licence’. In the next exchange the policeman said: ‘OK! This is what you want! I am going to charge you!’ The words do not convey any harm. That is not an assault according to the principles as I have already stated. The third and final exchange has Mr Vats saying ‘Charge me with what?’ Mr Vats alleges the policeman was ‘really angry’ and ‘had his arm by his side’. He then says he noticed the policeman had a gun in his holster. He said he was getting scared.
I do not accept there are any real prospects of success for a case in assault on those facts. Many would say the sight of a policeman’s gun in a holster is aesthetically arresting or at least eye catching. But its mere presence does make it an assault. It is not suggested the policeman motioned in some way he was going to draw his gun or uttered a threat to use it if he had to, or order him to get out of his car with his hand on the gun. This was a routine case of a driver not showing his licence. Nothing in the circumstances could establish a threat of physical contact. I think Mr Vats has gone too far.
Allowing an amendment to the other two causes of action is also futile because they too are bound to fail. The placing of a caveat on his car was not explained. If it has anything to do with the impoundment, then as I have already said, there is no basis for saying the impoundment was unlawful. If it has something to do with him not paying his many speeding fines, then that is a separate matter. Nothing has been put to the Court to make me think that the removal of a caveat claim really has anything to do with the impounding claim or how and what way the imposition of a caveat is going to be contended to have been unlawful.
The third proposed amendment was to pursue a contention that the Road Safety Act and all acts of the Victorian Parliament which impound property are invalid. Reference was made to s 8 of the Imperial Acts Application Act 1922. I was not taken to the Imperial Acts Application Act 1980 (Vic). It is not for this Court at the behest of the plaintiff to engage in a disquisition about the application of Imperial Acts and the legal and legislative history. If Mr Vats’ quest was to show that the Road Safety Act was invalid by application of subsisting Imperial statutes, he simply has not put or elucidated a submission to demonstrate that.
It is for those reasons the court summarily dismissed this proceeding.
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