Bauskis v Thomson [2011] NSWSC 27 (7 February 2011)

Case Title:	Bauskis v Thomson

Medium Neutral Citation:	[2011] NSWSC 27

Hearing Date(s):	7 February 2011

Decision Date:	07 February 2011

Jurisdiction:

Before:	Garling J

Decision:	(1) That pursuant to r 6.29(a) of the Uniform Civil Procedure Rules 2005, Luke Thomson, the 1 st defendant, Natalie Pickford, the 2 nd defendant, Shane Peter Ranee, the 3 rd defendant, and Stuart Coote, the 4 th defendant, be removed as parties to the proceedings. (2) The proceedings continue by way of pleadings pursuant to r 6.6(2) of the Uniform Civil Procedure Rules . (3) The plaintiff file a statement of claim pursuant to r 6.6(3)(b) of the Uniform Civil Procedure Rules within 42 days. (4) The plaintiff pay the 5 th defendant's costs of the notice of motion.

Catchwords:	PROCEDURE - Supreme Court Procedure - New South Wales - Removal of defendants from proceedings - Whether defendants were improperly joined - Where defendants are police officers - Where the State accepts vicarious liability for any negligent act of the police officers relevant to the plaintiff's claim. PROCEDURE - Supreme Court Procedure - New South Wales - Proceedings erroneously commenced by summons - In the interests of justice to require proceedings to continue on pleadings.

Legislation Cited:	Civil Procedure Act 2005 Law Reform Vicarious Liability Act 1983 Uniform Civil Procedures Rules 2005

Cases Cited:

Texts Cited:

Category:	Procedural and other rulings

Parties:	John Peter Bauskis (Plaintiff) Luke Thomson (1st Defendant) Natalie Pickford (2nd Defendant) Shane Peter Ranee (3rd Defendant) Stuart Coote (4th Defendant) State of New South Wales (5th Defendant)

Representation

- Counsel:	Counsel: Self-represented (Plaintiff) Mr Gaigios (1st to 5th Defendants)

- Solicitors:	Solicitors: Self-represented (Plaintiff) I.V. Knight, Crown Solicitor (1st to 5th Defendants)

File number(s):	2010/361646

Publication Restriction:

Orders
(1) I order that pursuant to r 6.29(a) of the Uniform Civil Procedure Rules 2005, Luke Thomson, the first defendant, Natalie Pickford, the second defendant, Shane Peter Ranee, the third defendant, and Stuart Coote, the fourth defendant, be removed as parties to the proceedings.
(2) I order that the proceedings continue by way of pleadings pursuant to r 6.6(2) of the Uniform Civil Procedure Rules .
(3) I order that the plaintiff file a statement of claim pursuant to r 6.6(3)(b) of the Uniform Civil Procedure Rules within 42 days.
(4) I order that the plaintiff pay the fifth defendant's costs of the notice of motion.

1	On 1 November 2010, John Peter Bauskis commenced proceedings in this Court by summons. He named as the first four defendants in the summons four individual police officers. Luke Thomson, Natalie Pickford, Shane Peter Ranee and Stuart Coote. He also named as the fifth defendant, the State of New South Wales.
2	The summons filed claimed relief by way of an award of $1M in damages in reliance on a claim in tort for wrongful arrest, unlawful imprisonment, assault, and "false accusations" arising from the conduct of one or other, or all of the police officers who I have just named.
3	The summons filed by Mr Bauskis was, because it raised a claim for damage in tort, appropriately allocated to the Common Law Division of this Court.
4	Today, I have had referred to me in the course of the duty list a notice of motion filed on 21 January 2010 by the fifth defendant the State of New South Wales, in which the State seeks orders firstly, that the four named police officers be removed as parties to the proceedings and secondly, that the proceedings continue on pleadings including a requirement that the claim of Mr Bauskis be set out in a statement of claim. In support of that motion the State relied upon the affidavit of Stephanie Koch of 21 January 2011.
5	Mr Bauskis opposes the orders sought in the notice of motion and disputes the jurisdiction of this Court to make those orders. He submits that as a citizen of Australia he has an inalienable right to have the entirety of his dispute, including all procedural aspects of it, heard and determined by a jury and that anything less would be an infringement of his fundamental rights and civil liberties.
6	He further submits that the law of God is the overriding legal system which gives rise to that inalienable right. As well, he submits that he is entitled to rely on the Magna Carta, and the fact that the people of Australia, who as a whole have sovereignty, are together the ultimate authority to make "imposed" laws. He submits that he has a legal right derived from the legal system which I have just outlined, which cannot be disrupted by any law, including a statute, to join such people, including the police officers, as he wishes, to his suit. He further submits that it is not open to the Crown to move for the relief which it does, and that it is open to this Court to grant the relief.
7	Regrettably, Mr Bauskis's submissions are incorrect and must be rejected. Although he adheres to them with great passion and has no doubt researched them with great care, they are not submissions which I can accept.
8	Procedures in this Court are governed by a variety of statutes and rules made in accordance with those statutes. Section 56 of the Civil Procedure Act 2005 provides that the overriding purpose of the Act and the rules of the Court, is " to facilitate the just, quick and cheap resolution of the real issues in the proceedings ".
9	Section 56 obliges the Court to give effect to the overriding purpose when it exercises any power given to it by the Act or by the Uniform Civil Procedures Rules 2005. Sub-section (3) imposes a similar obligation on the parties to civil proceedings. It reads:

13	The affidavit of Ms Koch records that on 14 December 2010 she received confirmation of instructions from her client that " the State of New South Wales accepts vicarious liability for the police officers named as the first to fourth defendants in these proceedings, if it is established that the officers concerned committed the torts as alleged in proceedings ".
14	This position is confirmed by statements made by the Crown Solicitor's Office on behalf of the State of New South Wales. On 1 December 2010 the Crown Solicitor's Office wrote to Mr Bauskis and said, amongst other things, this:

16	The provisions of Part 4 of the Law Reform (Vicarious Liability) Act oblige any person who is making a claim in tort, where it is alleged that the tort has been committed by a police officer, to sue the Crown, and only the Crown, where the Crown accepts that it would be vicariously liable for the alleged tort if it is established the tort was committed.
17	I am satisfied from the contents of the letters of 1 December 2010 and 9 December 2010, to which I have made reference, and from the contents of paragraph 6 of the affidavit of Ms Koch, that the Crown accepts that it is vicariously liable for the four named police officers and their conduct in so far as it was directed towards Mr Bauskis, and in so far as it forms the basis for Mr Bauskis's claim in this Court.
18	In those circumstances, I am satisfied that the four named officers, that is the first to fourth defendants, should be removed as parties to the proceedings, and it is appropriate that I make an order in accordance with rule 6.29(a) of the UCPR that Luke Thomson the first defendant, Natalie Pickford the second defendant, Shane Peter Ranee the third defendant and Stuart Coote the fourth defendant, who have been improperly joined, be removed as parties to the proceedings.
19	The second part of the motion is the application by the Crown for an order that the matter proceed by way of pleadings. Again, this order is resisted by Mr Bauskis upon the grounds which I have earlier outlined.
20	Rule 6.3(b) of the UCPR provides that where proceedings are made on a claim for relief in relation to a tort they must be commenced by statement of claim. The claim being made by Mr Bauskis is a claim for relief in relation to a tort. The Rules oblige such a claim to be commenced by a statement of claim. Mr Bauskis has chosen to commence his proceedings by a summons. In my view, that choice was erroneous. I conclude that the proceedings, therefore, have been wrongly commenced by summons and should have been commenced by statement of claim.
21	Rule 6.6(1) of the UCPR provides that although proceedings have been wrongly commenced by summons, they are nevertheless taken to have been duly commenced as from the date of the filing of the summons.
22	Sub-rule (2) of r 6.6 of the UCPR provides that the Court may order that the proceedings continue on pleadings. In my opinion, this is a case which ought to continue on pleadings.
23	The purpose of pleadings is to enable a plaintiff to articulate the cause of action upon which he or she seeks relief, and to particularise it in a way to ensure that the real issues are identified and the case can move forward, based upon the real issues. In so far as a defendant is concerned, the purpose of the pleadings is to ensure that the defendant identifies, and only leaves for determination, such matters as are properly put in issue. This is a case which cries out for proper pleadings. This is a case in which it will assist rather than diminish the interests of justice if Mr Bauskis is required to set out properly in a pleading what his claim is, and the remaining defendant, the State of New South Wales, is required to admit, deny, or otherwise properly plead to each of the allegations which are made.
24	In those circumstances, I am persuaded that I should make an order in accordance with r 6.6(2) of the UCPR that the proceedings continue on pleadings and I make that order. As a consequence, I propose to order that the plaintiff file a statement of claim in the matter. I would usually give the plaintiff 28 days to do so, but in the circumstances of this case, given that Mr Bauskis is not legally represented, I think a slightly longer period is justified. I propose to order that the plaintiff file a statement of claim pursuant to r 6.6(3)(b) of the UCPR within 42 days.
25	A question of costs remains. The defendant has brought the motion. It is an entirely proper motion to be brought. It has succeeded. There is no reason why costs should not follow the event. Accordingly, I make the following orders:

10	The application of the Crown to remove the four named police officers relies upon s 9B of the Law Reform (Vicarious Liability) Act 1983. That Act prohibits a person, such as Mr Bauskis, from making a claim in tort directly against an individual police officer unless permitted by the provisions of Part 4 of that Act.
11	In particular, sub-section (3) of s 9B is in the following terms:

Supreme Court of New South Wales

Bauskis v Thomson [2011] NSWSC 27 (7 February 2011)