WANG v STATE OF NEW SOUTH WALES [2010] NSWCA 209 (24 August 2010)

Last Updated: 26 August 2010

NEW SOUTH WALES COURT OF APPEAL

CITATION:
WANG v STATE OF NEW SOUTH WALES [2010] NSWCA 209


FILE NUMBER(S):
2009/298278

HEARING DATE(S):
10 August 2010

JUDGMENT DATE:
24 August 2010

PARTIES:
Li WANG – First Appellant
Yu LIU – Second Appellant
State of New South Wales – Respondent

JUDGMENT OF:
Basten JA Macfarlan JA Handley AJA

LOWER COURT JURISDICTION:
Supreme Court

LOWER COURT FILE NUMBER(S):
SC 20604/08

LOWER COURT JUDICIAL OFFICER:
RS Hulmle J

LOWER COURT DATE OF DECISION:
2 July 2009


COUNSEL:
Self-represented – Appellants
C F Hodgson – Respondent

SOLICITORS:
Self-represented – Appellants
Crown Solicitor’s Office – Respondent

CATCHWORDS:
APPEAL – civil – interlocutory – construing pleading – whether primary judge erred in dismissing proceedings – whether plaintiff should have had limited leave to replead
PROCEDURE – civil – strike out application – leave to replead – determining immunity from liability as officer in charge of the prosecution and as a witness
PROCEDURE – civil – strike out application – leave to replead – determining whether limitation period had expired – [<i>Limitation Act 1969</i>] (NSW) ss 50C, 50D
TORT – actions against State arising out of police misconduct – whether plaintiff's statement of claim raised any reasonable cause of action - Uniform Civil Procedure Rules 2005 (NSW), rr 13.4(1)(b), 14.28(1)(a), 14.28(1)(b)
TORT – intentional tort – liability for failure of police to respond to complaint and notify complainant of date of hearing – liability for psychological injury

LEGISLATION CITED:
[<i>Civil Liability Act 2000</i>] (NSW), ss 43, 43A
[<i>Freedom of Information Act 1989</i>] (NSW)
[<i>Law Reform (Vicarious Liability) Act 1983</i>] (NSW), ss 8, 9B, 10
[<i>Legal Profession Act 2004</i>] (NSW), s 347
[<i>Limitation Act 1969</i>] (NSW), ss 50C, 50D
[<i>Police Act 1990</i>] (NSW), ss 7, 150
Uniform Civil Procedure Rules 2005 (NSW), rr 13.4, 14.28, 15.8

CATEGORY:
Principal judgment

CASES CITED:
[<i>Baker-Morrison v State of New South Wales</i>] [2009] NSWCA 35; 74 NSWLR 454
[<i>Cabassi v Vila</i>] [1940] HCA 41; 64 CLR 130
[<i>Commonwealth of Australia v Griffiths</i>] [2007] NSWCA 370; 70 NSWLR 268
[<i>Cran v State of New South Wales</i>] [2004] NSWCA 92; 62 NSWLR 95
[<i>Gibbons v Duffell</i>] [1932] HCA 26; 47 CLR 520
[<i>Tame v New South Wales</i>] [2002] HCA 35; 211 CLR 317
[<i>Wang v State of New South Wales</i>] [2009] NSWCA 340
[<i>Webster v Lampard</i>] [1993] HCA 57; 177 CLR 598

TEXTS CITED:


DECISION:
(1) Allow the appeal.
(2) Set aside the order made in the Common Law Division on 2 July 2009 dismissing the statement of claim and ordering the plaintiffs to pay the defendant’s costs.
(3) In place thereof make the following orders:
(a) strike out the statement of claim filed 29 December 2008, but grant the plaintiff (Li Wang) leave to file a fresh statement of claim by 8 October 2010, such leave being limited to: a claim against the State of New South Wales with respect to the conduct of Richard Kennedy, then a senior constable of police, during the period from 10 January to 27 July 2004, following a complaint of an alleged assault on the plaintiff by her landlord;
(b) such leave excludes any claim –
(i) by the plaintiff’s husband;
(ii) against Inspectors Melton and Krawczyk;
(iii) against Commanders G McCarthy, L Freudenstein and G Beresford;
(iv) against Police Prosecutor Mr Ian Casha;
(v) against the Director of Public Prosecutions;
(vi) against Mr B Searson of the New South Wales Police Legal Services, and
(vii) in respect of the present proceedings.
(c) no order as to the costs of the motions determined on 2 July 2009;
(d) grant the plaintiff leave to apply to a judge in the Common Law Division to vary these conditions, if so advised, but only on the basis of an affidavit provided by a legal practitioner that there is a cause of action which would otherwise be precluded, which has reasonable prospects of success.
(4) Order that the respondent pay the appellant’s costs, assessed as an unrepresented party, in this Court.
(5) Refer the appellant to the Registrar for referral to a barrister having experience in relation to claims in tort against public authorities, on the Pro Bono Panel, for assistance in drafting a statement of claim.



JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 2009/298278

SC 20604/08

BASTEN JA

MACFARLAN JA

HANDLEY AJA

24 August 2010

Li WANG v STATE OF NEW SOUTH WALES

Headnote

On 10 January 2004, the plaintiff, Ms Li Wang, complained of an assault by her landlord to NSW Police. In December 2008, the plaintiff and her husband, Mr Yu Liu, commenced proceedings in the Supreme Court against the State of NSW, the defendant, seeking aggravated damages on account of psychological injury, asserting the injuries were caused by the inaction and misconduct of police, including former Senior Constable Kennedy, in handling her complaint. On 10 March 2009, the defendant filed a notice of motion seeking to have the statement of claim dismissed on three bases: (i) it disclosed no reasonable cause of action, pursuant to the Uniform Civil Procedure Rules 2005 (NSW) ("UCPR"), r 13.4(1)(b); (ii) it disclosed no reasonable cause of action or it had a tendency to cause prejudice, embarrassment or delay in the proceedings, pursuant to UCPR r 14.28(1)(a) and (b); (iii) any causes of action were statute-barred under the Limitation Act 1969 (NSW). The plaintiffs filed a motion seeking leave to amend the statement of claim.

On 2 July 2009, RS Hulme J held that neither the original statement of claim, nor the proposed amended statement of claim identified a cause of action known to the law for which damages might be obtained. His Honour ordered that the statement of claim be dismissed and that the plaintiffs pay the defendant's costs. On 23 July 2009 the plaintiffs filed a summons seeking leave to appeal. On 14 October 2009, this Court granted leave: Wang v State of New South Wales [2009] NSWCA 340.

The issues for determination on appeal were:

(i) whether the primary judge failed to identify reasonable causes of action alleged in the plaintiff's statement of claim;

(ii) whether the appeal should not be upheld on the basis of grounds identified in the defendant's notice of contention.

The Court held, allowing the appeal:
(per Basten JA, Macfarlan JA and Handley AJA agreeing):

In relation to (i)

1. The original statement of claim ran to 15 paragraphs and should be read as a whole. The complaint revealed by the pleading was clearly not based in negligence but intentional misconduct which might constitute an intentional tort, which would not be precluded by the absence of a duty of care in relation to possible psychiatric injury: [13]-[19].

Tame v New South Wales [2002] HCA 35; 211 CLR 317, Cran v State of New South Wales [2004] NSWCA 92; 62 NSWLR 95, cited.

In relation to (ii)

2. The defendant raised three grounds as reasons not to uphold the appeal: (a) Senior Constable Kennedy enjoyed immunity from liability in respect of the allegations made against him, as the officer in charge of the prosecution and as a witness in the prosecution proceedings; (b) the limitation period pursuant to ss 50C and 50D of the Limitation Act had expired prior to the commencement of proceedings; and (c) the plaintiffs' inability to plead a valid cause of action which was reasonably arguable: [20]-[21].

3. In relation to (a), the application of the immunity in the present case seems doubtful, both because of the need to define its scope, and because of uncertainty as to the precise activities and the role of Senior Constable Kennedy in relation to the matters complained of: [22]-[23]

Gibbons v Duffell [1932] HCA 26; 47 CLR 520, Cabassi v Vila [1940] HCA 41; 64 CLR 130, Commonwealth of Australia v Griffiths [2007] NSWCA 370; 70 NSWLR 268, cited.

4. In relation to (b), s 50C of the Limitation Act prescribes a period within which proceedings must be brought, identified by reference to a commencement date being the date on which “the cause of action is discoverable by the plaintiff”: s 50C(1)(a). Pursuant to s 50D, the cause of action is “discoverable” on the first date that the person “knows or ought to know” each of a number of facts, including “the fact that the injury ... was caused by the fault of the defendant” and “the fact that the injury was sufficiently serious to justify the bringing of an action on the cause of action”: s 50D(1)(b) and (c). The facts necessary to determine the commencement of the three year limitation period were not found in the Court below nor were such findings sought in this Court. Accordingly, the dismissal of the proceedings cannot be supported on this ground: [25].

Baker-Morrison v State of New South Wales [2009] NSWCA 35; 74 NSWLR 454

5. In relation to (c), it is not appropriate for this Court to deny the plaintiff a further opportunity to formulate an adequate pleading if the primary judge dealt with the defendant's strike out motion on too peremptory a basis. There are elements of an intentional tort which appear to have been relied upon in the original claim, but which, by themselves, would not be adequate to establish a legally available cause of action: [29].

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 2009/298278

SC 20604/08

BASTEN JA

MACFARLAN JA

HANDLEY AJA

24 August 2010

Li WANG v STATE OF NEW SOUTH WALES

Judgment

1 JUDGMENT of the COURT delivered by BASTEN JA: On 29 December 2008 Ms Li Wang (“the plaintiff”) commenced proceedings in the Supreme Court against the State, seeking aggravated damages on account of psychological injury. She asserted that the injury was caused by the inaction and misconduct of police in response to a complaint of an assault on the plaintiff by her landlord, on or about 10 January 2004. (Her husband was also named as a plaintiff.)

2 On 10 March 2009 the State filed a notice of motion seeking to have the statement of claim dismissed generally, on the ground that it disclosed no reasonable cause of action, pursuant to the Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”), r 13.4(1)(b). In the alternative, it sought an order that the statement of claim, as a pleading, be struck out, either because it disclosed no reasonable cause of action or because it had a tendency to cause prejudice, embarrassment or delay in the proceedings, pursuant to UCPR r 14.28(1)(a) and (b). As a third option, the State sought to have the statement of claim struck out on the basis that any causes of action were statute-barred under the Limitation Act 1969 (NSW). The plaintiffs filed a motion seeking leave to amend the statement of claim.

3 The motions came before RS Hulme J in the Common Law Division on 2 July 2009. His Honour held that neither the original statement of claim, nor the proposed amended statement of claim identified a cause of action known to the law for which damages might be obtained. His Honour ordered that the statement of claim be dismissed. He further ordered that the plaintiffs pay the defendant’s costs.

4 On 23 July 2009 the plaintiffs filed a summons seeking leave to appeal. The leave application was listed separately from the proposed appeal and, on 14 October 2009, this Court granted leave: Wang v State of New South Wales [2009] NSWCA 340. The appeal should be upheld and, subject to strict conditions, the plaintiff should be given an opportunity to replead her claim.

Nature of pleadings

5 On the coversheet of the proceedings, two plaintiffs were identified. In this judgment, “the plaintiff” refers to Ms Wang, who was the subject of the assault and was identified as the first plaintiff in the statement of claim. In various parts, the pleading referred to the plaintiff (singular), meaning Ms Wang. However, the second plaintiff was identified as Mr Yu Liu, who was Ms Wang’s husband. The statement of claim usually referred to him as “the plaintiff’s husband”, or by name; on occasion, the term “plaintiffs” was used in the plural. Mr Liu has since been appointed her tutor and has appeared both on his own behalf and on behalf of his wife in the proceedings in this Court. However, complaints of psychological harm are limited to Ms Wang. If anyone has a claim against the State, it would appear to be Ms Wang. One condition of the leave to replead, identified below, will be a restriction to pleading a claim on her behalf. Accordingly it is convenient to continue to refer to her as “the plaintiff”.

6 Paragraphs 1 and 2 of the statement of claim may be treated as introductory. Paragraph 1 asserted that the proceedings were brought pursuant to a number of statutory provisions, including UCPR r 15.8, which provides:

“15.8 Claims for aggravated damages

The particulars to be given by a pleading that claims aggravated compensatory damages must state the facts and circumstances on which the party pleading relies to establish that claim.”

7 That is, of course, one of a number of rules which must be complied with in formulating a statement of claim. The action is not, in a legal sense, brought pursuant to that rule. A similar element of confusion attended the identification of further statutory provisions pursuant to which the action was said to be brought. These included the Police Act 1990 (NSW), s 7(a), (b), (c) and (h) and s 150(a) and (b). Those provisions read as follows:

“7 Statement of values of members of NSW Police Force

Each member of the NSW Police Force is to act in a manner which:

(a) places integrity above all,

(b) upholds the rule of law,

(c) preserves the rights and freedoms of individuals,

...

(h) ensures that authority is exercised responsibly.

...

150 Information to be sent to complainant and Ombudsman

As soon as practicable after the investigation of a complaint has been concluded and a report of the investigation finalised, the Commissioner:

(a) if practicable, must consult with the complainant before making a decision concerning any action to be taken as a result of the complaint, and

(b) must provide the complainant with advice as to any action already taken, and as to the Commissioner’s decision concerning any action to be taken, as a result of the complaint ...”

8 The significance of these provisions is found in the final sentence of paragraph 1 of the pleading, which described the proceedings as being “on a claim for aggravated damages for personal injury for breach of statutory duty”. Specific reference was made to these and other sections of the Police Act in the particulars identified in the claim.

9 Finally, paragraph 1 of the statement of claim asserted that it was brought pursuant to ss 43(1) and 43A(1) of the Civil Liability Act 2000 (NSW). As the primary judge noted (at p 3):

“One can understand how a non-lawyer, particularly one whose command of English is not perfect, could read more into those sections than they say when strictly construed. However, strict attention to their words makes it clear that the sections are designed to limit circumstances in which a breach of statutory duty giving rise to civil liability occurs. The sections do not purport to create any cause of action.”

10 Section 43 of the Civil Liability Act is concerned particularly with a claim for civil liability based on a breach of a statutory duty by a public authority. Section 43A is concerned with proceedings for civil liability based on the exercise or failure to exercise a statutory power “of a kind that persons generally are not authorised to exercise without specific statutory authority”: s 43A(2)(b). The section provides that no civil liability arises unless the act or omission was “so unreasonable that no authority ... could properly consider the act or omission to be a reasonable exercise of, or failure to exercise, its power”: s 43A(3). Section 43 imposes a similar limitation not found in the general law.

11 The key aspect of paragraph 1 is to be found in its reference to breach of statutory duty.

12 After referring to authorities supporting the proposition that “there is no relevant duty of care arising as an incident of police investigations”, the primary judge noted that the plaintiff’s case was “not in its terms confined to an action for negligence, rather does paragraph 1 of the document seem to suggest that it is an action for breach of statutory duty”: Judgment, p 2. His Honour noted that the statutory duties in question pre-dated the authorities to which he had referred, which, inferentially, excluded the possibility of a cause of action based on breaches of statutory duties, as a particular of negligence, or as separate causes of action in their own right.

13 So understood, his Honour was entitled to find that the pleading failed to identify a reasonable cause of action. However, it is not appropriate to treat the pleading (particularly one filed by a litigant in person) as if it were limited by the reference to breach of statutory duty in the first paragraph. The original statement of claim ran to 15 paragraphs and should be read as a whole. Paragraph 2 identified the State as being sued in respect of conduct of the police officers. Paragraph 3 noted, in effect by way of background, that the plaintiff had been assaulted in her home by her landlord. The account which then followed in paragraphs 4-6 was that, the police having been contacted and Senior Constable Kennedy assigned to the case, Senior Constable Kennedy did not come to the plaintiff’s home as he should have done, and falsified police records to indicate that he had. Subsequently, it was alleged that (par 5):

“Senior Constable Kennedy, in an attempt to cover up his mistake on 10 January 2004, intentionally:

a. Insulted the plaintiff and her husband to prevent any further actions/complaints.

b. Refused to establish a formal complaint regarding the assault.

c. Refused the plaintiff the services of an interpreter and led the plaintiff away from the front desk to a corner location to enable him to carry out his plan to deceive the plaintiff.

d. Deceived the plaintiff into signing a statement that was untruthful and opposite to the intentions of the plaintiff.

e. Used the false statement to cover up the fact that he did not establish the plaintiff’s complaint against her assailant.”

14 Despite those allegations, it appears that a charge was laid against the plaintiff’s landlord, who was required to attend at Court. However, attempts by the plaintiff to discover the progress of the investigation and the case were said to have been unsuccessful and it was further alleged that Senior Constable Kennedy “intentionally severed contact with the plaintiff in a ploy to conceal the court date and therefore prevent the plaintiff’s attendance as a witness”: par 8. The pleading continued at par 9:

“11 June 2004 Senior Constable Kennedy, in a ploy to have the case dismissed by the Court intentionally:

a. Concealed evidence from the Court.

b. Provided misinformation to the Court (by stating that the subpoena was hand delivered to the plaintiff).

c. Deceived the presiding judge into believing that the plaintiff did not care to attend the hearing. After the presiding judge criticised the victim, the case was dismissed.”

15 The complaint revealed by this pleading was clearly not based in negligence. Although, in the vernacular, it might be thought to involve breaches of duties imposed by statute on police, in terms it alleged intentional misconduct, which might constitute an intentional tort.

16 The second part of the statement of claim concerned a complaint lodged by the plaintiff in relation to the actions of Senior Constable Kennedy (and Inspector Muir, whose role was not identified in the original statement of claim).

17 The second part of the statement of claim is confusing in a number of respects and cannot readily be summarised. For example, there was a complaint that a statement taken from the husband, Mr Liu, was a “forgery” (par 12 a.), whereas it was further alleged that the statement was altered so as to remove the signature to render it useless: par 12 b. It is sufficient to say that the investigating officers (Inspectors Krawczyk and Melton) were alleged to have deliberately misconducted themselves so as to protect Senior Constable Kennedy from criminal investigation and to suggest that an investigation was ongoing, when it was not. It appears from evidence before this Court that the investigating officers may have formed the view that there was misconduct on the part of Senior Constable Kennedy, as a report was referred to the Director of Public Prosecutions, who took the decision not to prosecute.

18 Whether there was any substance to the complaints in respect of the conduct of those investigating Senior Constable Kennedy, is unclear. The importance of the second limb to the claim (relating to the investigating officers) appears to arise from the fact that although the plaintiff received counselling between 19 January 2004 and June 2005, thereafter her medical condition improved to the extent that she “ceased to use medication, and could complete chores and care for [her] child”: par 11. Her psychological condition is alleged to have deteriorated after September 2005, as explained in a medical report of October 2007. It is not clear from the statement of claim whether the deterioration after September 2005 was related to the conduct of Senior Constable Kennedy, rather than the conduct of the investigating officers. Identifying a separate cause of action in relation to the investigation undertaken by Inspectors Melton and Krawczyk may have significance, both for the recovery of damages and for any defence under the Limitation Act.

19 Relevantly for present purposes, the primary judge did not identify the possibility that the facts pleaded might give rise to a claim for damages arising from an intentional tort, which would not be precluded by the absence of a duty of care in relation to possible psychiatric injury, of the kind considered in Tame v New South Wales [2002] HCA 35; 211 CLR 317 and Cran v State of New South Wales [2004] NSWCA 92; 62 NSWLR 95.

Submissions of State

20 The State submitted the approach of the primary judge was not in error. In the alternative, accepting that the approach adopted by the primary judge may have been too constrained, the State submitted that the Court would, nevertheless, not uphold the appeal, on two grounds identified in a notice of contention, namely that:

(a) in respect of the allegations made against Senior Constable Kennedy, as the officer in charge of the prosecution and as a witness in the prosecution proceedings, he enjoyed immunity from liability, and

(b) the limitation period arising pursuant to ss 50C and 50D of the Limitation Act had expired prior to commencement of the proceedings.

21 In its written submissions, the State also cast doubt upon the ability of the plaintiff to formulate and plead the elements of a relevant intentional tort. For the purpose of the last argument, reference was made to a document identified as the proposed sixth amended statement of claim, handed up to this Court at the hearing on 10 August 2010.

(a) immunity from civil liability

22 It is convenient to deal first with the contention based on Senior Constable Kennedy’s immunity. First, it should be understood that the immunity relied upon was said to arise under the general law, and therefore did not constitute a “statutory exemption” which would be unavailable to the State: see Law Reform (Vicarious Liability) Act 1983 (NSW), s 10. However, the precise scope of the immunity for police in relation to investigation and preparation of a matter for trial is not without its difficulties. Similarly, although it is clear that Senior Constable Kennedy was involved in the investigation of the plaintiff’s complaint of assault, it is unclear what precise role he had to play in relation to the court proceedings. In his role as a witness, he would have enjoyed absolute immunity: see Gibbons v Duffell [1932] HCA 26; 47 CLR 520 at 525 (Gavan Duffy CJ, Rich and Dixon JJ); Cabassi v Vila [1940] HCA 41; 64 CLR 130 at 139 (Rich ACJ), 140 (Starke J), 149 (Williams J). However, it is not in doubt that a police officer can be liable for misconduct, such as falsely arresting a person, and for misfeasance in public office. As explained by Beazley JA in Commonwealth of Australia v Griffiths [2007] NSWCA 370; 70 NSWLR 268 at [43]:

“The rationale for witness immunity is generally stated as being founded in the promotion of two objectives: first, ensuring that witnesses are able to give evidence freely in an atmosphere devoid of threats of suit from disappointed litigants; and secondly, to avoid multiplicity of actions in which the evidence would be tried over again ....”

23 The application of the immunity in the present case seems doubtful, both because of the need to define its scope, and because of uncertainty as to the precise activities and role of Senior Constable Kennedy in relation to the matters complained of. The operation of the defence would depend on factual findings which were not made below and are not sought in this Court.

24 There may even be an argument that the vicarious liability of the State, created by s 8(1) of the Law Reform (Vicarious Liability) Act, may extend to liability for conduct in respect of which the police officer is personally immune. The Court was taken to no case in which this aspect of the statute was addressed, nor in which the consequences of s 9B(2), which prevents legal proceedings being taken against the officer in respect of a “police tort claim” (but allows a claim against the State) had been considered. In any event, these would not, even if a general immunity were available in respect of a claim against Senior Constable Kennedy, be appropriate for resolution on an application for summary judgment.

(b) expiration of limitation period

25 Similar difficulties arise in dealing with a limitation defence. The relevant provisions of the Limitation Act, noted at [20(b)] above, were considered by this Court in Baker-Morrison v State of New South Wales [2009] NSWCA 35; 74 NSWLR 454. Section 50C prescribes a period within which proceedings must be brought, identified by reference to a commencement date being the date on which “the cause of action is discoverable by the plaintiff”: s 50C(1)(a). Pursuant to s 50D, the cause of action is “discoverable” on the first date that the person “knows or ought to know” each of a number of facts, including “the fact that the injury ... was caused by the fault of the defendant” and “the fact that the injury was sufficiently serious to justify the bringing of an action on the cause of action”: s 50D(1)(b) and (c). The facts necessary to determine the commencement of the three year limitation period were not found in the Court below nor were such findings sought in this Court. Accordingly, the dismissal of the proceedings cannot be supported on this ground.

(c) inability to plead a valid cause of action

26 The State’s submissions in this regard involve a number of propositions, namely:

(a) the plaintiff has had ample opportunity to formulate a valid claim, if she has one;

(b) because the plaintiff is unrepresented, and there is no requirement for a certificate as to the reasonable prospects of any claim, the Court would subject the possibility of a legitimate claim to careful scrutiny, and

(c) the only intentional torts identified so far are those of “conspiracy” and “perverting the course of justice”, which do not bear any realistic promise of being arguable.

27 In considering these matters, it is convenient to commence with two preliminary considerations. The first is that the approach which the legal representatives of the State have taken to the civil proceedings in this Court appears to have been both reasonable and sensible and to conform to its obligations as a model litigant. As with any other litigant, the State is entitled to resist the undue expenditure of resources in response to what may seem to it to be hopeless litigation.

28 As a second preliminary matter, limited weight should be placed on the fact that there will be no certificate under s 347 of the Legal Profession Act 2004 (NSW), because the plaintiff is unrepresented. A possible consequence of the obligation imposed by the Legal Profession Act on lawyers acting in relation to personal injury claims is that persons whose claims do not have reasonable prospects of success, but cannot be persuaded to abandon their claims, may end up approaching the Court unrepresented. The Court, however, will rarely know the circumstances and reasons for a litigant being unrepresented and cannot assume that the proposed claim is without prospects of success. There are other reasons why some people reject, or are unable or unwilling to obtain, legal assistance. While the absence of an obligation to provide a certificate as to prospects of success may not be entirely irrelevant, it is a factor which should not be accorded determinative weight in the present case.

29 Turning to the first point raised by the State, it is true that the plaintiff has made a number of attempts (in recent times through her husband) to formulate a legally arguable claim. There are aspects of the present claim which suggest that, without legal assistance, she may well not succeed. Nevertheless, on the basis that the primary judge dealt with the State’s strike out motion on too peremptory a basis, without addressing the possibility that the matters of fact which were alleged might form the basis of an intentional tort, it is not appropriate for this Court to deny the plaintiff a further opportunity to formulate an adequate pleading, if that is the order which should have been made by the primary judge. It is not proposed to rule upon the content of the document handed up in Court, except to indicate the limitations on the scope of the permissible repleading.

30 As noted above, there are elements of an intentional tort which appear to have been relied upon in the original claim, but which, by themselves, would not be adequate to establish a legally available cause of action. Those paragraphs have been expanded upon in the proposed sixth amended statement of claim handed up to this Court.

31 Paragraph 1 abandons a claim for breach of statutory duty and, in its place, seeks damages for personal injury caused by “intentional torts, conspiracy, perverting the course of justice against the victims and conspiring to prevent successful prosecution in criminal investigation and prosecution”.

32 Paragraph 7 of the proposed amendments relates to the events of 11 June 2004 when the assault charge was dismissed. In addition to making a claim against Senior Constable Kennedy, it seeks to add a claim against the Police Prosecutor. It also identifies the nature of Senior Constable Kennedy’s misconduct more precisely, stating that he “made false testimony” and “made false affidavit”. These features gave rise to the concern on the part of counsel for the State that a repleading would only demonstrate the extent to which the claim fell foul of the separate immunities of advocates and witnesses in court proceedings.

33 The complaints concerning the statement of Mr Liu of 27 July 2004 are too obscure to warrant leave to replead. The suspicions of Mr Liu appear to have been raised by the provision of copies of the statement in various forms. One form was a redacted version obtained under the Freedom of Information Act 1989 (NSW) (now the Government Information (Public Access) Act 2009 (NSW)), in which numerous parts were blanked out, a practice which, at least in relation to his own statement, cannot have inspired confidence in the recipient. (Why he may not have been entitled to an unredacted copy of his own statement need not be explored.) However, his concern related to the fact that at various times he obtained three copies, differently executed. Why that should be so is also not a matter which this Court needs to explore. A number of possible explanations can be suggested, but none bear upon the content of the statement, nor on its value in the eyes of the law.

34 The result of the inquiry by Inspectors Melton and Krawczyk was, it appears, a recommendation that charges be laid against Senior Constable Kennedy. That did not occur, because the Director of Public Prosecutions took the view that there was insufficient evidence to charge Senior Constable Kennedy with any criminal offence. It is not possible to discern in the allegations against the investigating inspectors any basis for establishing a tortious liability on their part for which the State is liable. There should be no leave to replead that aspect of the proposed amended statement of claim.

35 At paragraphs 15-17 of the proposed document, complaints are made against the Director of Public Prosecutions. Those complaints do not demonstrate any possible civil liability for action on his part. Similarly, a complaint in respect of the release of documents by an officer in the Police Legal Services section is without substance. Paragraph 19 asserts a form of obstruction arising from the redaction of documents released under freedom of information. There is a legal process for challenging decisions taken under the Freedom of Information Act, but it is not possible to identify any civil liability on the part of those who may have made such decisions.

36 A new proposed paragraph 20 identifies the damage suffered by the plaintiff and by Mr Liu. The damage Mr Liu has suffered is said to be consequential upon the need to look after his wife as her psychological condition deteriorated and to look after their young child. He complains of both physical and psychological ailments since August 2008.

37 There then follow paragraphs 24-36, which contain a litany of complaints about the administration of justice and the course of proceedings in the Supreme Court. The management of litigation for a lay person seeking to conduct proceedings in a language which is not his first language must be stressful. The stresses of the litigation have no doubt compounded the domestic difficulties to which Mr Liu referred. However, the complaints about the course of the litigation do not suggest any legitimate basis for any fresh cause of action. Whether the additional stress can form a head of damages in relation to a pre-existing cause of action is another question, which need not be addressed at this stage.

Conclusions

38 Because the primary judge dealt with the matter purely as a possible claim in negligence or breach of statutory duty, without addressing the factual allegations which might have given rise to an intentional tort, the basis upon which his Honour dismissed the proceedings was flawed. It would have been appropriate for his Honour to strike out the whole of the statement of claim and give leave to replead, whether conditionally or otherwise. That did not occur and the appeal should be allowed.

39 Leave to replead should be limited to the conduct of Senior Constable Kennedy, following the complaint of assault on the plaintiff.

40 A pleading in relation to an intentional tort on the part of the police is not without its difficulties, even for lawyers. In Webster v Lampard [1993] HCA 57; 177 CLR 598, the appellants were the lessees of premises, from which they were being evicted when the respondent and another police officer arrived at the premises. When the matter reached the High Court, the questions in issue turned upon statutory protection available to the respondent. The cause of action relied upon was in the following terms (p 614):

"The (respondent) in:

(a) wrongfully threatening the Plaintiffs with arrest;

(b) wrongfully requiring the Plaintiffs to give up possession of the premises;

(c) wrongfully trespassing on the premises occupied by the Plaintiffs

has acted in contumelious disregard of the rights of the Plaintiffs."

41 Toohey J noted (at 615):

“The cause of action pleaded against the respondent and the nature of the relief claimed invite a number of questions but they are not the subject of this appeal.”

42 The same comment may be made in the present case. To the extent that the first paragraph of the proposed new statement of claim seeks to pick up the comments with respect to intentional tort made by this Court in giving judgment on the leave application, it suggests that Mr Liu is not averse to acting on suggestions from those who are legally qualified. Needless to say, it is not the role of this Court to provide guidance to litigants, but to rule upon the issues brought before it for determination. The complaint of counsel for the State that there must be a limit to the number of opportunities which the plaintiff may have to put her claim into proper form is not without merit. Whether Mr Liu is prepared to accept free legal advice through the scheme organised by the Court with the Bar Association is by no means clear. However, it seems unlikely that an adequate pleading will be prepared without legal assistance. Accordingly, it is appropriate to refer the plaintiff (and her tutor Mr Liu) to the Registrar for referral to a barrister having experience in tort claims against statutory authorities for assistance in drafting a further amended statement of claim. Whether Mr Liu avails himself of that assistance is entirely a matter for him. However, the facility is free and should be made available to him.

43 Had the proposed orders been made by the primary judge on the motions, the same costs would have been incurred before his Honour, but each party would have been partly successful. There should be no order in respect of the costs of the motions determined in the Common Law Division on 2 July 2009. The plaintiff should have her costs, as an unrepresented party, in this Court.

44 The Court makes the following orders:

(1) Allow the appeal.

(2) Set aside the order made in the Common Law Division on 2 July 2009 dismissing the statement of claim and ordering the plaintiffs to pay the defendant’s costs.

(3) In place thereof make the following orders:

(a) strike out the statement of claim filed 29 December 2008, but grant the plaintiff (Li Wang) leave to file a fresh statement of claim by 8 October 2010, such leave being limited to: a claim against the State of New South Wales with respect to the conduct of Richard Kennedy, then a senior constable of police, during the period from 10 January to 27 July 2004, following a complaint of an alleged assault on the plaintiff by her landlord;

(b) such leave excludes any claim –

(i) by the plaintiff’s husband;

(ii) against Inspectors Melton and Krawczyk;

(iii) against Commanders G McCarthy, L Freudenstein and G Beresford;

(iv) against Police Prosecutor Mr Ian Casha;

(v) against the Director of Public Prosecutions;

(vi) against Mr B Searson of the New South Wales Police Legal Services, and

(vii) in respect of the present proceedings.

(c) no order as to the costs of the motions determined on 2 July 2009

(d) grant the plaintiff leave to apply to a judge in the Common Law Division to vary these conditions, if so advised, but only on the basis of an affidavit provided by a legal practitioner that there is a cause of action which would otherwise be precluded, which has reasonable prospects of success.

(4) Order that the respondent pay the appellant’s costs, assessed as an unrepresented party, in this Court.

(5) Refer the appellant to the Registrar for referral to a barrister having experience in relation to claims in tort against public authorities, on the Pro Bono Panel, for assistance in drafting a statement of claim.

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LAST UPDATED:
25 August 2010