Zunica v State of Victoria
[2004] VSC 80
•20 February 2004
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
COMMON LAW DIVISION
MAJOR TORTS LIST
No. 6409 of 2003
| MARISA ZUNICA | Plaintiff |
| v | |
| STATE OF VICTORIA AND OTHERS | Defendant |
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JUDGE: | BONGIORNO J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 20 February 2004 | |
DATE OF JUDGMENT: | 20 February 2004 | |
CASE MAY BE CITED AS: | Zunica v State of Victoria | |
MEDIUM NEUTRAL CITATION: | [2004] VSC 80 | |
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Practice and procedure – pleading – striking out tort - duty of care of protective workers – malicious prosecution - abuse of process - misfeasance in a public office - failure to disclose cause of action – R.S.C. 0.13, r 23.02.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr D. Baker | Cash & Stavroulakis Lawyers |
| For the First Defendant | Mr J. P. Gorton | Ebsworth & Ebsworth |
| For the Second Defendant | Mr L. W. Maher | Garden & Green |
| For the Third Defendant | Mr Drynan | John Ball & Sons |
HIS HONOUR:
By a writ issued on 25 June 2003 Marisa Zunica commenced proceedings against the State of Victoria, Timothy Mark Wynn and a Dr Michael Moynihan. The second defendant, Timothy Mark Wynn, is Ms Zunica's ex-husband. The claims arise out of family disputation and subsequent Children's Court action and Family Court action which appears to have commenced in or about November 1998. The claim against the State of Victoria is as the employer of and, therefore, vicariously liable for the torts of a number of public servants, specifically, Kaye Dunn and Pauline Dooley. Paragraph 1 of the statement of claim alleges that they were, respectively, a protective worker and a child protection supervisor employed by the Department of Human Services of the State of Victoria and that in everything they did they acted as employees and servants of the Department. I will return to their status in the Department in due course, when dealing with the State of Victoria's application.
The statement of claim runs to some 45 paragraphs over 26 pages. It pleads a case in discursive, and in some respects, rambling terms which is based upon a proposition that the plaintiff was inappropriately deprived of the custody of her children for some period commencing in about December 1998. Allegations in the statement of claim are made against the Department of Human Services employees to whom I have referred, the plaintiff's ex-husband, and Dr Moynihan, a general practitioner who is said to have practised in Swan Hill.
The statement of claim barely pays heed to any of the basic principles of pleading. It does not comply with Order 13 and, in particular, it does not set out, in summary form, the allegations of fact relied upon by the plaintiff. Mr Baker of Counsel, who appeared for the plaintiff on this application, conceded that it was somewhat discursive but said that that was the only way in which the case could be made. The application which I am hearing, however, is not one based on the form of the statement of claim, but rather upon its substance, and it was on that basis that I heard the State of Victoria's application. If this matter is to proceed further, it is essential that the statement of claim be redrawn, such that it complies with Order 13, and with some of the basic principles of pleading. But that is a matter that need not delay me any further now.
The application I am concerned with is an application by the State of Victoria, the first defendant, to strike out various claims against it, on the ground that the statement of claim does not disclose a cause of action. Specifically, it says that the claims in negligence, malicious prosecution, abuse of process and misfeasance in a public office cannot lie as they are pleaded in the statement of claim, and that the statement of claim insofar as it seeks to implicate the State of Victoria should, accordingly, be struck out.
I turn then to examine the statement of claim, and each of the allegations in it which relate to those causes of action.
The claim in negligence arises at paragraph 12. That paragraph pleads that Ms Dunn and the Department of Human Services, were under a duty of care to the plaintiff in respect of eight specified matters. They range from treating information confidentially, to exercising care, skill and judgment in respect of the activities she and the Department were engaged in. Paragraph 13 alleges a breach of one or all of those duties and does so by reference to a number of specific allegations of fact. Mr Gorton, who appeared for the State of Victoria submitted that in the circumstances of this case there was no duty of care imposed upon Ms Dunn or the Department, either of the type alleged by the plaintiff or at all in respect of the plaintiff. Mr Gorton argued that any duty which the Department had was a duty to the children of the plaintiff and the second defendant whom it was required, by law, to protect. He referred to s 64 of the Children and Young Persons Act 1989, and specifically to s 64 (1A), and s 64 (1C).
The imposition of a duty of care on one person in favour of another is a matter which has much vexed the law, particularly in recent times. In the circumstances which are raised by this case the High Court in Sullivan v Moody[1] and two associated cases considered the position of the South Australian equivalent of the Victorian Department of Human Services. In these cases, where investigations raised the suspicion that a parent may have been sexually assaulting a child the subject of a Departmental investigation, the parent sued and was unsuccessful both at first instance, and in the High Court. The reason the parent was unsuccessful in each of the cases reported under the heading of Sullivan v Moody, namely Sullivan v Moody, Thompson v Connon and Hillman v Black was that the High Court held there was no duty of care in the Department in favour of the parent, as to have imposed such a duty would have put the Department in the position of having incompatible duties to more than one person. At p 582, the whole court said:
“If a suggested duty of care would give rise to inconsistent obligations, that would ordinarily be a reason for denying that the duty exists. Similarly, when public authorities, or their officers are charged with the responsibility of conducting investigations, or exercising powers, in the public interest, or in the interests of a specified class of persons, the law would not ordinarily subject them to a duty to have regard to the interests of another class of persons where that would impose upon them conflicting claims or obligations.”
[1](2001) 207 CLR 562.
Mr Baker sought to distinguish Sullivan v Moody from the present case by pointing out, as is the pleaded fact, that the plaintiff had sought the assistance of the Department herself whereas in Sullivan v Moody the plaintiffs had no contact whatsoever with the Department who had conducted investigations, having been informed of various matters by other agencies. Whilst that is a factual difference between the two cases, it gives rise, in my opinion, to no difference in principle. As Mr Gorton pithily pointed out in his reply, if Mr Baker was correct, the Department would owe a duty of care to a child, and would owe a duty of care to the first parent to get to the Department, as it were, but not necessarily to the other parent. It is not possible to put up a case in which the obligations of the Department would not run the risk of being inconsistent, were it to have imposed upon it a duty of care towards a parent of a child in respect of whom it was exercising its statutory functions.
The High Court concluded Sullivan v Moody by saying that inconsistency would arise if, in the proper discharge of its responsibilities a Government department was under a legal duty to protect person who were suspected or might be suspected of being the sources of the harm being investigated. I am unable to distinguish Sullivan v Moody from the present fact situation. It seems to me to be directly in point and accordingly must be applied. The claim by the plaintiff against the Department for the breach of a duty of care such as that pleaded in paragraphs 12 and 13 of the statement of claim has no possibility of success. It ought to be struck out.
I turn to the next set of allegations, which relate to malicious prosecution. In paragraphs 22 to 28 of the statement of claim a narrative occurs of protection applications under the Children and Young Persons Act, being brought before the Children's Court in Swan Hill and of subsequent actions of the Department in respect of that protection application.
The pleading is somewhat discursive and appears to plead largely matters of evidence. However, from it one can divine an allegation of a protection application being made in paragraph 22 or an order being obtained in paragraph 23 and of various other actions taken by the Department consequent upon that order.
Malice is alleged against officers of the Department, namely Ms Dunn and Ms Dooley, both in relation to the prosecution of the protection application and in various activities which they engaged in surrounding the protection application. For example, in paragraph 28, there is an allegation that they; "maliciously and without reasonable and probable cause made false statements in a disposition report”. Particulars of the malice as set out.
In paragraph 27 some three pages of particulars set out events, some of which involve actions by Ms Dunn and Ms Dooley and some of which involve actions by other persons, including Dr Moynihan and others.
These allegations culminate in an allegation that there was a malicious prosecution.
The question then is, does the pleading make out the tort of malicious prosecution in the circumstances.
The first problem that the plaintiff has in trying to establish malicious prosecution is that she is not the person against whom any court action has been taken. Mr Baker acknowledges that he has no authority for the proposition that that does not matter, but argues that because the plaintiff was “intimately interested in the outcome of the proceeding”, then she ought to be treated as if she was a party. There is no substance in this submission, at least in the contest of this case.
The second matter which is of some concern in determining whether the plaintiff's case can be made out at all is that the allegedly malicious proceeding would need to have been determined in the plaintiff's favour for her to make out one of the elements of the tort. In this case an order of the Children's Court was in fact obtained. Indeed, not only was one obtained, but a second was obtained. Although one or other or perhaps both of them were appealed, those appeals never proceeded, the judge before whom they came regarding them as being futile as the Department had taken other action, rendering them of no practical use.
Mr Baker argues that the tort of malicious prosecution must allow for the possibility of the eventual vindication of the plaintiff's position by other than a judicial determination in his or her favour where the possibility of that determination has been frustrated by some act of the defendant. This argument was not developed. It may have some basis in some circumstances, but I cannot see how it could in the present case where the plaintiff was not even a party to the proceeding said to have been judicially prosecuted. Mr Baker cited no case in support of the proposition he was advancing.
In the case of Little v Law Institute[2] the Full Court of this Court examined the question of the prosecution of proceedings maliciously and concluded that to found a claim of malicious proceedings, a plaintiff must plead and prove: (a) that the proceedings complained of were instituted or continued by the defendant, (b) that the defendant instituted or continued the proceedings maliciously, (c) that the defendant acted without reasonable and probable cause, (d) that the proceeding was terminated in the plaintiff's favour, and (e) that the plaintiff suffered damage of a type falling within one or more of three heads of damage laid down by Holt CJ in Sabile v Roberts.[3] In this case the plaintiff has pleaded, and impliedly asserts that she can prove, that the proceedings complained of were instituted by officers of the defendant, that they did so maliciously and that they acted without reasonable and probable cause. For reasons I have already given, she cannot plead or prove that the proceedings were terminated in her favour. So far as damage is concerned, Mr Baker says that the first of Holt CJ's categories, that is damage to "fame", can be made out.
[2][1990] VR 257.
[3](169) 1 L Raymond, 374.
The damage claimed by the plaintiff in this case, in paragraph 45 of her statement of claim, claims stress, anxiety, humiliation, a number of financial claims, and seeks aggravated and exemplary damages. It seems to me that not only has the plaintiff a problem in relation to proving that the proceedings were terminated in her favour, but on the pleading as it presently stands she does not plead any of the heads of damage which Holt CJ’s referred to, unless, in some way the word "humiliation" can be extended beyond its ordinary meaning. Perhaps it can. If that were the only problem with the pleading, it might be able to be cured. But in my opinion, the tort of malicious prosecution or malicious bringing of civil proceedings as it is in this case, cannot be made out in the way in which the plaintiff has pleaded it. Accordingly, paragraphs 22 to 28 of the statement of claim should be struck out.
I might say that further on in the statement of claim at paragraph 36, there was a reference to a further protection order. Whether that is part of the claim of malicious prosecution or not I am unable to tell. But having regard to the order that I propose to make, that will be able to be looked at by the plaintiff’s advisers if they and the plaintiff decide to prosecute this matter further.
The third claim that the plaintiff makes is of abuse of process. This again relates to the protection applications. It is said that they were brought in circumstances in which they were an abuse of the process of the Children's Court. This allegation is made in paragraph 29 which relates back to the earlier paragraph concerning questions of malicious prosecution. In effect it picks up those allegations and says that not only were they a malicious prosecution, but they were also an abuse of process.
The problem here is one which goes to the technical nature of the tort of abuse of process. On the claim as presently pleaded at least, and probably, I would have thought, on the claim as it could possibly be pleaded, some collateral purpose other than that to which the proceeding was ostensibly directed must be pleaded and proved. Such collateral purpose has not been pleaded in this case. I doubt if it could be proved, but perhaps it might. Mr Baker says that what occurred was an attempt by the agents of the State of Victoria to transfer custody of the children to the husband of the plaintiff. I cannot see, myself, how that is a collateral purpose having regard to the nature of a protection application, but I will content myself at the moment, with saying that paragraphs 29 and 30 do not plead such a case. Paragraphs 29 and 30 will be struck out.
The final way in which the plaintiff puts her case against the State of Victoria is as misfeasance in a public office. Paragraphs 41 and perhaps 42 and 43 (although the form of those paragraphs makes it doubtful) purport to raise a claim of misfeasance in a public office. However there is no pleading that Ms Dunn is a public officer within the meaning of that term in those cases in which the tort is discussed. Mr Baker says that that could be remedied by amendment, although initially he had said that it arose out of the allegation in paragraph 1 that Ms Dunn and Ms Dooley were employed as servants of the Department.
The matter was recently dealt with by the Court of Appeal in Cannon v Tahche.[4] It considered the tort at length and said:
“Nevertheless, for present purposes, it can be said that it is relatively clear, on the authorities to which reference is made below, that the tort is essentially concerned with the abuse by the holder of a public office of a public power or one which must be exercised for the public good, and which is attached to the office. (We will refer to the power as the relevant power). It is a deliberate tort for which the defendant is personally liable and, relevantly, one of its essential constituents is malice in the sense explained later. Moreover, in order to succeed in an action founded on the tort, the plaintiff must establish that he or she is a member of the public, to whom the defendant owed a duty to exercise the power legitimately, namely, only in the public interest and not for an ulterior purpose. For reasons which become apparent later, although the tort is ordinarily concerned with executive or administrative powers, it seems that it also operates in respect of the exercise of a judicial power; at least in certain contexts.”[5]
[4](2002) 5 VR 317.
[5](2002) 5 VR 317 at 328.
Later, the court summed up the tort as follows:
“Thus, for present purposes, it would seem that the necessary components of the tort involve:
(a) The misuse or abuse by the holder of a public office of a relevant power which is an incident of the office.
(b) That such wrongful conduct was actuated by malice in the sense that the power was used, not for the public benefit, but for an ulterior purpose with the intent that harm be caused to the plaintiff (or in reckless disregard of such a likely consequence) or that there was a purported exercise of the power with knowledge that it did not exist (or in reckless disregard as to its existence).
In order to succeed in a claim based on misfeasance in a public office, the plaintiff must also establish that the duty to exercise the relevant power properly was owed to him as a member of the public.”[6]
[6](2002) 5 VR 317 at 333
The question in my opinion is closed by Sullivan v Moody. There is no duty owed to the plaintiff to exercise any relevant power conferred upon Ms Dooley and/or Ms Dunn, even if they were public officers: as to which, see Tahche at 347. In my opinion the tort of misfeasance in a public office cannot lie in this case. And accordingly paragraph 41 should be struck out.
That disposes, essentially, of the whole of the attack made on the pleading by the first defendant. However, the matter cannot be allowed to stop there. Even with the paragraphs struck out, to which I have referred, the pleading still contains references to Ms Dunn, and perhaps Ms Dooley and a number of other matters, which would now appear to be irrelevant. As I have already said, the pleading barely commences to comply with the rules of pleading.
I do not know whether the plaintiff has a good case or not. I'm concerned, at this stage, only with the way in which the case is put. As I have already said in the course of this hearing, I doubt if a case such as this case pleaded in the way it is could ever be properly tried. Accordingly, I propose to strike out the statement of claim against the first defendant, with leave to the plaintiff to re-plead the case in accordance with the rules, and consistently, as to the law, with this judgment.
I say nothing for the moment about the cases against the second and third defendants. But having regard to what I have said about the form of the pleading, the plaintiff's counsel should be awake to the probability that the whole statement of claim will meet a similar fate if applications are made by the other defendants. I say nothing about the legal basis of claims against the other defendants but simply, at this point, about the way in which those claims are framed. The plaintiff will have leave to deliver an amended statement of claim. I will limit the time for the delivery of that statement of claim, if the plaintiff proposes to proceed with the action to 15 March 2004.
There were other matters which were due to be argued on this summons which, at the commencement of the argument I deferred. I will continue to defer those matters which go to issues of confidentiality and privilege and in particular as to implied undertakings as to confidentiality of documents produced under compulsory process. I shall defer all of those arguments that were raised on the summons of the first defendant until they become relevant again at some future time if they ever do.
Orders
The Court will make the following orders:
(1) That the plaintiff's statement of claim be struck out against the first defendant.
(2) That the plaintiff have leave to file and serve an amended statement of claim in accordance with the rules of the Court and consistent with the law as expressed in the judgement delivered this day by 31 March 2004.
(3) The second and third defendants costs be reserved.
(4) The plaintiff pay the first defendant's costs to be taxed.
(5) The directions hearing be adjourned to 30 April 2004.
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