Nelipa v Robertson & Commonwealth of Australia [2001] ACTSC 55 (6 June 2001)

Last Updated: 11 June 2002

Peter Nelipa v Dr James Robertson & Commonwealth of Australia [2001] ACTSC 55 (6 June 2001)

CATCHWORDS

PRACTICE AND PROCEEDURE - Application to strike out parts of Statement of Claim for failing to disclose reasonable cause of action - Australian Federal police officer issued s26E notice - Whether first defendant acted unlawfully in threatening to transfer the plaintiff if he contested the s26E notice - Tort of intimidation.

Australian Federal Police Act (1979)

Civil Procedure ACT (ACT)

General Steel Industries Inc v Commissioner for Railways (N.S.W.) [1964] HCA 69; (1964) 112 CLR 125 at 129

Latham v Singleton [1981] 2 NSWLR 843

Lonrho plc v Fayed (No 2) [1991] 1 AC 448 at 469

Rookes v Barnard [1964] UKHL 1; [1964] AC 1129

No. SC 516 of 2000

Coram: Master T. Connolly

Supreme Court of the ACT

Date: 6 June 2001

IN THE SUPREME COURT OF THE )

) No. SC 516 of 2000

AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: PETER NELIPA

Plaintiff

AND: DR JAMES ROBERTSON

First Defendant

AND: THE COMMONWEALTH OF AUSTRALIA

Second Defendant

ORDER

Coram: Master T. Connolly

Date: 6 June 2001

Place: Canberra

THE COURT ORDERS THAT:

1. The notice of motion be dismissed, with costs.

1. This is an application by way of notice of motion of 27 April 2001 by the first and second defendant seeking to strike out paragraphs 19 and 20 of the plaintiff's statement of claim as failing to disclose a reasonable cause of action. The power to strike out any pleading on the ground that it discloses no reasonable cause of action is found in Order 29 rule 4, and is a power that may be exercised by the Master pursuant to Order 61A rule 1 (i).

2. The test to be applied in an application to strike out a pleading on the basis that it discloses no reasonable cause of action is well known, and is set out extensively in Civil Procedure ACT at [8915.5]. For the purposes of the present application I need only cite with respect the following statement of the law from Barwick C.J. in General Steel Industries Inc v Commissioner for Railways (N.S.W.) [1964] HCA 69; (1964) 112 CLR 125 at 129 where His Honour said:

"It is sufficient for me to say that these cases uniformly adhere to the view that the plaintiff ought not to be denied access to the customary tribunal which deals with actions of the kind he brings, unless his lack of a cause of action - if that be the ground on which the court is invited, as in this case, to exercise its powers of summary dismissal - is clearly demonstrated. The test to be applied has been variously expressed; `so obviously untenable that it cannot possibly succeed'; `manifestly groundless'; `so manifestly faulty that it does not admit of argument'; `discloses a case which the Court is satisfied cannot succeed'; under no possibility can there be a good cause of action'; `be manifest that to allow them (the pleadings) to stand would involve useless expense.'"

3. The substantive claim in this case is one brought by a former officer of the Australian Federal Police Forensic Services section against his former supervisor and the Commonwealth. The action is brought in the form of a claim for damages for the torts of misfeasance in Public Office, intimidation and negligence, and in breach of contract. The aspects of the statement of claim which are sought to be struck out as disclosing no reasonable cause of action relate to the pleading of intimidation.

4. It is pleaded that on 12 May 1998 the plaintiff was served with a notice under s26E(2)(b) of the Australian Federal Police Act (1979) asking him to show cause why he should not be terminated from the service of the Australian Federal Police. It is then pleaded in paragraph 9:

"After receiving the s26E notice, on 12 May 1998 the plaintiff was told by the First Defendant words to the effect that if he chose to contest the s26E notice the First Defendant would ensure that the plaintiff would not be permitted back into Forensic Services and that he would be transferred to a job where he would `end up being most unhappy'."

5. The tort of intimidation is relevantly pleaded in paragraphs 19 and 20, being the impugned paragraphs, as follows:

"Intimidation

19. The matters referred to in paragraph 9 constitute a threat by the First Defendant to perform an illegal act.

20. The plaintiff was induced by that threat not to challenge the s 26E notice.

6. It was accepted by both parties that the tort of intimidation is correctly described in Laws of Australia as follows:

"The tort of intimidation is committed where a person makes an intentional threat of an unlawful act to a third party or the plaintiff, the consequence of which is sufficient to induce the threatened person to submit, resulting in economic loss to the plaintiff".

7. The threat alleged here is that, if the plaintiff contested the s26E notice, which was his right and indeed which he was invited to do by being asked to show cause, he would be transferred to a position "where he would end up being most unhappy". It was submitted that there was on the facts as pleaded no evidence of an unlawful act, but I am not satisfied that this is so.

8. It was claimed that the Australian Federal Police Act (1979) gives a broad power to transfer officers within the service to different duties. No doubt this is so, and the power to transfer officers is exercised every day, quite lawfully. But the power to transfer officers must be for a lawful purpose, being generally the better administration of the national police service. In this case it is alleged that the plaintiff was being told that, if he exercised his right to contest his dismissal, the power of transfer would be exercised in order, he claims, to bring pressure on him to refrain from expressing his lawful rights. To exercise a statutory power for an improper purpose can, it seems to me, amount to an unlawful act for the purposes of the tort of intimidation.

9. It cannot be a lawful act to transfer a police officer for the purpose of inducing that police officer to refrain from engaging in some lawful act. There is an apocryphal story of an Australian police minister whose car is stopped for speeding, pulling out a road map and opening it to a remote area, saying to the young constable writing out the speeding ticket, "Son, where do you want to be transferred to?" It could not be argued that a threat by a person in authority over a police officer to transfer a police officer to an undesirable location in order to induce the officer to not proceed to do his duty by issuing an infringement notice would not be an unlawful act. Indeed it would probably be a crime.

10. It is not necessary for the tort of intimidation that the unlawful act amount to a crime- a civil wrong is sufficient (Rookes v Barnard [1964] UKHL 1; [1964] AC 1129, followed in Australia in Latham v Singleton [1981] 2 NSWLR 843). In the present case, if a trial judge found that the words alleged to have been said in paragraph 9 of the statement of claim did amount to a threat to transfer the plaintiff to a position where he would be made most unhappy, in order to coerce him into refraining from exercising his lawful right to challenge the s26E notice, it seems to me that this would amount to an unlawful act. It is therefore inappropriate for me to strike out the pleading at this stage.

11. In an application pursuant to Order 29 rule 4 the court is not concerned to establish the truth or otherwise of the allegations in the pleading. Rather, the court proceeds on the basis that the allegations of fact are true and the court is invited to strike out the pleading on the ground that it is bound to fail even if all the allegations are proved (Lonrho plc v Fayed (No 2) [1991] 1 AC 448 at 469). The ruling in this application should thus not be seen as having any bearing on the question for the trial judge as to whether the statement alleged to have been made in paragraph 9 of the statement of claim was made, or whether, if made, it was intended to convey a threat, as opposed to providing advice as to the courses of action open to the plaintiff. This application is dealt with solely on the basis that it seems to me that it is at least arguable that, if the first defendant made the statement as alleged with the purpose of pressuring the plaintiff to refrain from contesting the s26E notice, this could amount to the tort of intimidation.

12. The notice of motion is dismissed, with costs.

I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of Master T. Connolly.

Associate:

Date: 6 June 2001

Counsel for the Plaintiff Mr Erskin

Solicitor for the Plaintiff: Porter Parkinson & Bradfield

Counsel for the Defendants: Mr Crowe

Solicitor for the Defendants: Australian Government Solicitor

Date of hearing: 25 May 2001

Date of judgment: 6 June 2001