Visedo v State of Victoria
[2022] VCC 1822
•28 October 2022
| IN THE COUNTY COURT OF VICTORIA AT Melbourne COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
GENERAL List
Case No. CI-21-00217
| CHARLES VISEDO | Plaintiff |
| v | |
| STATE OF VICTORIA | Defendant |
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JUDGE: | HIS HONOUR JUDGE MISSO | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 19 October 2022 | |
DATE OF RULING: | 28 October 2022 | |
CASE MAY BE CITED AS: | Visedo v State of Victoria | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 1822 | |
RULING
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Subject:COSTS
Catchwords: Cause of action pleaded in false imprisonment - proceeding commenced in the County Court of Victoria - settlement for a sum of damages less than half of the available jurisdictional limit of the Magistrates’ Court of Victoria - whether the cause of action with accompanying issues relevant to powers of arrest were actionable in the Magistrates Court of Victoria or whether the plaintiff had no choice but to bring the proceeding in the County Court of Victoria - exercise of discretion as to costs
Legislation Cited: Crimes Act 1958; Magistrates’ Court Act 1989
Cases Cited:Watson v Marshall and Cade (1971) 124 CLR 621; Symes v Mahon [1922] SASR 447; O'Doherty v McMahon (1971) VR 625; Mostafa v Sherif & Anor (No 2) [2020] VCC 1901; Bantick v Boss Properties Pty Ltd (No 2) [2000] VSC 165
Ruling: Refer below
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr W Evatt | Melbourne Lawyers |
| For the Defendant | Mr C Morshead | Hall and Wilcox |
HIS HONOUR:
1This is a review of a decision made by a Judicial Registrar of the Court. The review is a de novo hearing.
2The application for review was made out of time. The plaintiff brought a summons supported by an affidavit setting out the reasons why the plaintiff failed to bring the summons in time.
3I will grant the plaintiff leave to bring the application out of time. I do not think it is necessary to set out what the authorities say about granting such an application except that there are some well-known considerations which need to be weighed into account, namely, reasons for the delay, the extent of the delay, whether the delay has created prejudice for the defendant, and whether the case to be put by the plaintiff has, on the face of it, merit, but is not necessarily meritorious.
4The explanation for the delay is due to some confusion relevant to the time when the application should have been notified, and the solicitor for the plaintiff obtaining instructions from the plaintiff. Otherwise, the plaintiff acted expeditiously in pursuing this application. The defendant candidly conceded that it has not suffered any prejudice, and on the face of it I considered that there was some merit in the submissions to be put by the plaintiff, but as my reasoning will unfold, I have concluded that those submissions ultimately lacked merit. Overall, I considered that this was a matter which needed to be carefully considered.
Some facts
5The plaintiff filed a writ, endorsed with a statement of claim, on 22 December 2020 alleging that three police officers attended his home on 20 June 2019, after which he was arrested and conveyed to the Brunswick Police Station where he was interviewed concerning allegations that he had committed a number of criminal offences.
6The statement of claim is drawn in an unconventional way. It was drafted by the plaintiff. He set out in rather more affidavit form a series of facts upon which he then alleged that he had been falsely imprisoned and assaulted and battered by the three police officers. The statement of claim is defective in a number of ways, however, that no longer matters for reasons which will become plain shortly. In any event, the issues which I am to determine are based upon the bare facts which can be deduced from the allegations made by the plaintiff in his statement of claim and from the content of the defendant’s defence.
7The plaintiff’s mother owned an apartment in Doncaster East. At the material times she was not in occupation of the apartment. The plaintiff came to understand that a squatter had entered the apartment and was living in it. The plaintiff contacted police at the Doncaster Police Station informing them that there was a squatter residing at the apartment, and it is plain that he wanted the police to take some action to have the squatter removed from the apartment.
8When the plaintiff concluded that the police appeared not to show an interest in removing the squatter from the apartment, he took things into his own hands. On 17 May 2019 he attended the apartment with a locksmith. He entered the apartment. He removed items apparently left in the apartment by the squatter and placed them in the common area of the apartment complex. He then had the locks changed.
9On 20 June 2019 the three police officers attended the plaintiff’s home and informed him that they had evidence that he had entered the apartment and had stolen an envelope containing $5,000 in cash. Although, the plaintiff does not expressly allege that he was placed under arrest, he was told by the three police officers that he was to accompany them to the Brunswick Police Station. He believed he was under arrest. In paragraph 12(b) of the defence, the defendant pleaded that one of the police officers informed the plaintiff “that he was under arrest in relation to the missing $5,000”.
10The plaintiff was conveyed to the Brunswick Police Station in a police car. His personal belongings were removed from him. He underwent an electronically recorded interview, and before he was released from custody he was fingerprinted.
The defence
11The defendant filed a defence on 20 September 2021. The defence traverses the allegations made by the plaintiff in his statement of claim relevant to the plaintiff’s complaint to the police at the Doncaster Police Station; the occupation of the apartment by a person who claimed to have permission to occupy the apartment, and the theft of the envelope containing $5,000 in cash. It is unnecessary to summarise the defence any further, except to refer to paragraph 17 in which the defendant denies that the plaintiff was falsely imprisoned or assaulted and battered.
12Furthermore, the defendant pleaded, in paragraph 17, that the arrest of the plaintiff was authorised by s459 of the Crimes Act 1958 (“the Crimes Act”) based upon the belief on reasonable grounds held by one of the police officers that the plaintiff had committed an indictable offence relevant to the theft of the envelope containing $5,000, and that any force used by the two other police officers in arresting the plaintiff was authorised by s462A of the Crimes Act.
The settlement
13The plaintiff’s solicitor, Mr Deo Indevar, affirmed two affidavits on 26 May 2022 and 4 July 2022 (containing relevant exhibits), and the solicitor for the defendant, Ms Lauren Handreck affirmed an affidavit on 1 July 2022 (containing relevant exhibits). The affidavits describe, among other things, negotiations between the plaintiff and the defendant which I do not think are particularly relevant, except to say that the plaintiff and the defendant referred to the substance of some of the negotiations to provide some of the background to the settlement that was ultimately achieved.
14The plaintiff and the defendant arrived at a settlement in principle which became manifest in an offer of compromise dated 31 March 2022, served by the plaintiff on the defendant. The plaintiff offered to compromise his proceeding upon the defendant paying him the sum of $25,500, and to pay his costs, but the offer relevant to costs is drafted in unusual terms because it reserved that question to be determined by the court:
“In addition to this offer, the Defendant is to pay the Plaintiff’s costs of the proceedings, which are to be taxed in accordance with the County Court Civil Procedure Rules 2018, including consideration of whether rule 63A.24 applies, in default of agreement”.
15By email dated 31 March 2022, the defendant accepted the offer of compromise, but then the trouble began, and it is plain from the correspondence which passed between the plaintiff and the defendant that the plaintiff contended that he was entitled to costs on the County Court scale, and the defendant contended that he was only entitled to costs on the relevant Magistrates’ Court scale.
The costs issue
16Much of the dispute between the plaintiff and the defendant focused on whether the Magistrates’ Court has jurisdiction to hear a proceeding based upon the cause of action of false imprisonment.
17If it does, then the defendant contended that the plaintiff should have commenced his proceedings in the Magistrates’ Court, and because he has made a claim in the wrong Court, then he should be entitled only to costs on the relevant Magistrates’ Court scale less the additional costs properly incurred by the defendant by reason of the proceeding having been brought in the County Court instead of the Magistrates’ Court. The plaintiff contended that he is entitled to his costs on the County Court scale.
The relevant legislation
18Section 100(1)(a) of the Magistrates’ Court Act 1989 (“the Magistrates’ Court Act”) is the starting point:
“(1) The Court has jurisdiction, subject to subsection (2)—
(a)to hear and determine any cause of action for damages or a debt or a liquidated demand if the amount claimed is within the jurisdictional limit…”
19However, subsection (2)(a) restricts the jurisdiction of the Magistrates’ Court:
“(2) The Court does not have jurisdiction in any cause of action—
(a)in which the effect of, or the validity or invalidity of, any act, matter or thing done or omitted to be done by any person or body whatsoever in the exercise or purported exercise of any power or duty conferred or imposed on that person or body or purportedly conferred or imposed on that person or body by or under—
…
(i)any statute—
is sought to be determined or declared…”
20Both the plaintiff and the defendant worked on the basis that the major focus in this application is the powers of arrest exercisable by the three police officers, and whether those powers of arrest were exercised reasonably.
21Both the plaintiff and the defendant referred to ss458 and 459 of the Crimes Act. The issue of whether those sections are relevant to a civil proceeding or whether those sections are limited to a criminal law context became relevant. The research I have undertaken suggests that in many jurisdictions within the Commonwealth of Australia, including Victoria, the common law power of arrest has been the subject of legislative intervention,[1] and that is quite apparent when a comparison is made between the common law power of arrest and ss458, 459 and 461 of the Crimes Act.
[1] For example, Trindade and Cane, “The Law of Torts in Australia” at pp 237-238
22This application is not the time nor the place to undertake a treatise on the common law power of arrest compared with the relevant sections of the Crimes Act. I think it is sufficient for me to conclude by determining that these sections are relevant to a common law proceeding when an arrest is sought to be impugned because it was not reasonable. The defendant submitted, in the alternative, that resort does not need to be had to those sections, but rather that those sections establish a standard by which an analysis can be made of whether a particular arrest is capable of being impugned because it was unreasonable or otherwise. I do not agree for reasons I think I have set out sufficiently thus far.
23I am not convinced that the purpose served by s100(2)(a) of the Magistrates’ Court Act is as the plaintiff would have it. Firstly, s100(1)(a) by its terms demonstrates that the civil jurisdiction of the Magistrates’ Court is broad. I accept that sub‑s(2)(a) was intended by the legislature to restrict the jurisdiction of the Magistrates’ Court, but not in the way contended for by the plaintiff.
24Section 100(2)(a) of the Magistrates’ Court Act is immediately difficult to comprehend because the legislature collected together all of the conceivable alternatives which were relevant and packaged them up in a rather turgid way, however, transposing the facts of the plaintiff’s allegations into directly relevant language in the section then makes some better sense. Essentially, that transposition by the plaintiff would have it read as follows – the effect of, or the validity or invalidity of the act done by the three police officers in the exercise of a power of arrest under ss458 and 459 of the Crimes Act is sought to be determined or declared.
25It is on the basis of that transposition that the plaintiff submits that, because there is an element of the effect of, or the validity or invalidity of the process of arrest which inevitably draws in ss458 and 459 under the Crimes Act, that it will call upon a magistrate to determine or declare the effect of the arrest by those three release officers and/or whether it was valid or invalid, and therefore, because it involves the exercise of a power of arrest under the Crimes Act, the jurisdiction of a magistrate to determine or declare that validity or invalidity is removed from the jurisdiction of the magistrate by virtue of s100(2)(a)(ii) of the Magistrates’ Court Act.
26The submission is superficially attractive but, on reflection, I do not accept that it is the intended purpose of s100(2)(a)(ii) of the Magistrates’ Court Act. I do not think the section is there to remove the jurisdiction of a magistrate from determining whether an arrest was reasonable or unreasonable. I think it removes the jurisdiction of a magistrate to strike down a power under a statute where the question of the effect of the power, or the validity of the power, or the invalidity of the power is called into question. I cannot readily think of an example except if a submission were put to a magistrate that a power under a statute was unconstitutional, then the section makes it clear that the magistrate has no jurisdiction to entertain such a submission. I am fortified in reaching that conclusion because when a power under a statute is impugned because it does not have, for example, constitutional basis, the language that is usually applied to such a process of reasoning is “validity” or “invalidity”, and usually the reasoning of the Court will be by a determination or declaration that either the power under the statute is valid or invalid.
27I do not accept, therefore, that the plaintiff’s interpretation of s100(2)(a)(ii) of the Magistrates’ Court Act is a correct interpretation of the work which that section is expected to do in defining the jurisdiction exercisable by a Magistrate. It is for these reasons that I have concluded that there was no impediment to the plaintiff commencing his proceedings in the Magistrates’ Court.
If I am wrong
28The plaintiff relied upon sub‑s(2)(a)(i) of the Magistrates’ Court Act. He submitted that the primary issue which falls for my determination is the effect of, or the validity or invalidity, of the act done by the three police officers in the exercise of the power conferred on them under s458 of the Crimes Act to effect the arrest of the plaintiff without a warrant; however, the plaintiff did not plead that the arrest was a wrongful arrest for which the defendant is tortiously liable.
29I am not convinced that the act of the arrest of the plaintiff is the primary issue. I think what can be deduced from my simple reference to the legal principles relevant to the tort of false imprisonment is that the means by which the false imprisonment occur are relevant, but are not a necessary element to the cause of action of false imprisonment. What is necessary for a person alleging false imprisonment to prove is that a person exercised power over another person (the victim) which was sufficient to deprive the victim of his freedom. An arrest might be one of those means, but from the examples given below it can be seen that an arrest is but one of the means by which that might occur.
30The tort of false imprisonment was described by the authors of “Fleming’s The Law of Torts”:[2]
“The action for false imprisonment protects the interest in freedom from physical restraint and coercion against the wrong of intentionally and without lawful justification subjecting another to a total restraint of movement by either causing that person’s confinement or preventing that person from leaving the place in which he or she is. As its name seems to imply, the action was probably at first designed to furnish redress against wrongful incarceration in the colloquial sense, but has long outgrown the simple beginnings. It is now regarded as sufficient deprivation of freedom if the driver of a car proceeds at such a speed as to prevent a passenger from alighting, if a person is cast adrift in a boat, or submission to the control of another is procured by threat of force or assertion of legal authority, as when a store detective or (even more) a police officer without actually laying hands on the plaintiff or formally arresting the plaintiff gives the plaintiff to understand that he or she must submit or else be compelled…”[3]
[2] Sappideen and Vines’ “Fleming’s The Law of Torts, 10th Ed”, ("Fleming")
[3] Fleming at paragraph 2.80 - footnotes deleted
31Two of the authorities referred to in Fleming are Watson v Marshall and Cade[4] and Symes v Mahon.[5] In Watson the plaintiff was subject to a psychiatric examination and was told by a police officer that he had to be taken to a psychiatric hospital. Walsh J observed that in the circumstances, the plaintiff had a justified apprehension that if he did not submit to what was asked of him he would be compelled by force to go to the hospital. In Symes a police officer informed Symes that a warrant was out for his arrest. In those circumstances, Symes submitted to the police officer; however, the police officer repeatedly told Symes that he was not under arrest. Murray CJ observed that, even though there was no application of physical force, there must be evidence of complete submission to control of the other party. He considered that there was evidence from which a jury might properly infer that the plaintiff submitted himself to the police officer’s power, reasonably thinking that he had no way of escape which could reasonably be taken by him.
[4] (1971) 124 CLR 621 (“Watson”)
[5] [1922] SASR 447 (“Symes”)
Costs
32The defendant submitted that the plaintiff brought his proceeding in the wrong Court, and therefore, the costs penalties which potentially follow are to be found in Rule 63A.24 of the County Court Civil Procedure Rules 2018 (“the Rules”):
“(1) Where in a proceeding for debt or damages the plaintiff recovers by judgment or otherwise an amount (exclusive of costs) not exceeding one‑half of the amount of the jurisdictional limit of the Magistrates' Court in a civil proceeding (at the time the proceeding commenced), the plaintiff shall, unless the Court otherwise orders, be entitled only to the costs to which the plaintiff would have been entitled if the plaintiff had brought the proceeding in the Magistrates’ Court less an amount equal to the additional costs properly incurred by the defendant by reason of the proceeding having been brought in the County Court instead of the Magistrates’ Court, but shall not be required to pay to the defendant any amount by which the additional costs exceed the costs payable to the plaintiff.”
33The purpose of the rule is to protect the defendant against the unnecessary expense of higher costs in a Court which is not appropriate for the case.[6] Furthermore, a burden is borne by the solicitor for the plaintiff, and I hasten to add even a self-represented plaintiff, to carefully consider and analyse a proposed cause of action relevant to the likely amount of damages which might be recovered in the proceedings.[7]
[6]O'Doherty v McMahon (1971) VR 625 at 628. The relevant considerations in the exercise of the undoubted discretion as to costs in this context was summarised by Cosgrave J in Mostafa v Sherif & Anor (No 2) [2020] VCC 1901 at [6]-[7]
[7] Bantick v Boss Properties Pty Ltd (No 2) [2000] VSC 165 at [49]
34The defendant undertook a survey of damages awarded in false imprisonment cases in its written submissions,[8] which illustrate that the damages awarded have been well under half of the jurisdiction of the Magistrates’ Court in Victoria. For my own part, I would not have assessed the plaintiff’s damages as being much more than modest given that his liberty was restrained by arrest, then interview, and according to all that I know which can be derived from the pleadings, he was then released from custody. I was informed by the defendant that the plaintiff had not served any medical reports suggesting that he had suffered a psychiatric disorder amounting to an injury, so again all that I know is that his damages would be assessed upon the restraint of his liberty for what may have been a short time, and perhaps a few hours.
[8] Written submissions dated 1 July 2022 from paragraphs 18-20
35The plaintiff took the unusual step of drafting the offer of compromise leaving the issue of costs to be determined by the Court. Inevitably, that would bring into account the nature and extent of the false imprisonment, and the characteristics of the false imprisonment. It is clear to me that once the plaintiff was represented by his current solicitors, some effort was made to make an assessment of his range of damages, and of course, that resulted in the settlement.
36I think this is a case well within the contemplation of Rule 63A.24 (1) of the Rules. The authorities make it clear what the relevant considerations are, and in this instance I do not see that there are any factors which weigh against giving full effect to the Rule.
37I will make an order that the plaintiff’s costs of the whole proceeding be assessed on the relevant Magistrates’ Court scale of costs, less an amount equal to the additional costs properly incurred by the defendant by reason of the proceeding having been brought in the County Court instead of the Magistrates’ Court, but the plaintiff shall not be required to pay to the defendant any amount by which the additional costs exceed the costs payable to the plaintiff.
38I will not allow the costs of the plaintiff and the defendant relevant to the proceedings before the Judicial Registrar or before myself as part of the costs referred to in the preceding paragraph. It occurs to me that the result is not entirely consistent with the platform of submissions made by the plaintiff and the defendant, and I think because of the way I have reasoned the outcome that it is fair that each party bear their own costs.
39I will expect that the parties will prepare an order in a proper form and will submit it to me for approval, after which I will publish it to the parties.
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