Supreme Court New South Wales Medium Neutral Citation: Doueihi v State of New South Wales [2020] NSWSC 1065 Hearing dates: 11 August 2020 Date of orders: 18 August 2020 Decision date: 18 August 2020 Jurisdiction: Common Law Before: Davies J Decision: 1. Paragraphs 35-40 of the further amended statement of claim filed 25 February 2020 are struck out pursuant to r 14.28 Uniform Civil Procedure Rules 2005 (NSW). 2. Leave is given to the plaintiff to re-plead the claim for misfeasance in public office. Any such further pleading is to be filed and served by 15 September 2020. 3. The plaintiff is to pay the defendant's costs of the notice of motion. Catchwords: CIVIL PROCEDURE - pleadings – claim for tort of misfeasance in public office – claim in respect of actions of police officers – claim against State of New South Wales on the basis of vicarious liability - whether the further amended statement of claim adequately pleads the cause of action - where plaintiff fails to identify the officers involved, invalid acts they committed or damage suffered – whether the defendant is vicariously liable - Law Reform (Vicarious Liability) Act 1983 (NSW) – pleading struck out – whether plaintiff should be permitted to re-plead – third iteration of the statement of claim but first one where plaintiff legally represented - where associated claim in trespass is unchallenged - leave given to the plaintiff to re-plead Legislation Cited: Crimes Act 1900 (NSW) s 545D Crimes (Domestic and Personal Violence) Act 2007 (NSW) Law Reform (Vicarious Liability) Act 1983 (NSW) ss 9B, 9C, 9D, 9E Uniform Civil Procedure Rules 2005 (NSW) rr 5.2, 5.3, 14.28 Cases Cited: Danthanarayana v Commonwealth of Australia [2014] FCA 552 Deemah Marble & Granite Pty Ltd v Sutherland [2001] NSWSC 829 Duke v State of New South Wales [2005] NSWSC 632 Golden v Littleproud [2019] NSWSC 120 Moder v Commonwealth of Australia; Sochorova v Commonwealth of Australia [2012] QCA 92; (2012) 261 FLR 396 Northern Territory of Australia v Mengel (1996) 185 CLR 307 Obeid v Lockley [2018] NSWCA 71 Rajski v Bainton (1990) 22 NSWLR 125 Sanders v Snell (1999) 196 CLR 329; [1998] HCA 64 Street v Luna Park Sydney Pty Ltd [2006] NSWSC 533 Three Rivers District Council and Others v Governor and Company of the Bank of England (No 3) [2003] 2 AC 1 Texts Cited: Nil Category: Procedural and other rulings Parties: Peter Doueihi (Plaintiff) State of New South Wales (Defendant) Representation: Counsel: P Reynolds (Plaintiff) G Mahony (Defendant) Solicitors: Remington & Co (Plaintiff) Crown Solicitors Office (Defendant) File Number(s): 2017/256651 Publication restriction: Nil Judgment 1. By a further amended statement of claim filed 25 February 2020 the plaintiff seeks damages against the State of New South Wales in respect of two incidents involving the NSW Police. As a result of those two incidents the plaintiff seeks damages for trespass to a property in which he was residing and for misfeasance in public office. 2. By a notice of motion filed 19 May 2020 the State of New South Wales seeks to strike out paragraphs 35-40 of the further amended statement of claim. Those paragraphs contain the pleading which asserts a misfeasance in public office. 3. The first incident, called by the plaintiff the "Burwood Police Station Incident", occurred on 8 November 2014. It is set out in paragraphs 3-16 of the pleading. 4. The plaintiff pleads that at the time he was involved in a dispute over the will of his mother with his two sisters and his brother. One of his sisters is alleged to have been married to a police officer at Burwood Police Station. 5. The plaintiff pleaded that on 8 November 2014 a substantial number of police officers attended at his residence and rang the doorbell. There were said to be 16-20 of them and they did not identify themselves by name. The plaintiff pleads that he did not open the door to them, and one of them left a card requesting him to contact Ashfield police. 6. Later that day he attended at the Ashfield Police Station. He says he was asked by a police officer to hand over his backpack which contained documents relating to the will dispute, his keys and his mobile phone. The plaintiff says that he was then taken from Ashfield Police Station to Burwood Police Station and charged with assault occasioning actual bodily harm in relation to his brother-in-law Michel Doueihi, and stalk or intimidate intending to cause fear of physical or mental harm in respect of his sister Kathy. 7. The plaintiff pleads that after he was charged with those offences the police demanded that he sign papers presented to him. He said that he was subjected to duress by, and was fearful of, the police officers when they demanded that he sign the papers presented to him. 8. He pleads that, following the signing by him of a consent to an AVO which the police served upon him, he was permitted to leave the police station and was handed back his backpack, keys and telephone. He says that on subsequent inspection of his backpack the documents relating to the wills dispute were in a different order and several documents were missing. 9. Finally he pleads that Burwood Local Court made orders in accordance with a consent he signed on that day. 10. The second incident, called by the plaintiff the "Quest Apartments Incident", took place on 9 February 2015. 11. The plaintiff said that on around 9 February 2015 he suffered an electric shock in an apartment at the Quest Apartments at Mascot. He rang triple-0, and notified the hotel management that the police would be attending. He said that shortly afterwards ten police officers arrived. They did not identify themselves by name to him. The police officers demanded that the plaintiff wait outside the building with other police officers. He said that they spoke to him aggressively, they failed to explain the reason for their conduct towards him, they entered his apartment without his knowledge, they searched his motor vehicle, and they took his backpack from him for longer than 15 minutes. He said they did not ask for his consent to go into the apartment. 12. The plaintiff pleaded that he felt fearful and intimidated by the police officers and acceded to their demand to wait outside the building under duress. 13. The plaintiff then pleaded his claim for trespass in paragraphs 31-34 of the further amended statement of claim. The trespass related to the entry into the apartment by the police. 14. Finally, he set out his claim for misfeasance in public office which was pleaded as follows: 35. Further and in the alternative, the Plaintiff repeats the allegations in paragraphs 3-16 above (Burwood Police Station incident) and paragraphs 17-30 above (Quest Apartments Incident). 36. The individual police officers in attendance at both or either of the incidents were, by virtue of that role, holders of public office. 37. Further, in purporting to carry out their duties as police officers in the circumstances pleaded above in respect of both or either the Burwood Police Station Incident or the Quest Apartments Incident, they were purporting to act in the exercise of a public power or duty at all times in which they interacted with the plaintiffs. 38. In respect of the Burwood Police Station Incident: a. The subjecting of the Plaintiff to intimidation and duress in respect of the signing his consent to an AVO (as pleaded in paragraphs 12-15), was without lawful authority; b. The police officers subjecting the Plaintiff to the intimidation and duress pleaded in paragraphs 12-15 above knew or were recklessly indifferent as to the lack of lawful authority pleaded in the preceding paragraph; and c. The police officers, in applying the intimidation and duress pleaded in paragraphs 12-15 above, intended to cause injury to the Plaintiff or were recklessly indifferent as to the possibility. 39. Further and in the alternative, in respect of the Quest Apartments Incident: a. Any or all of the conduct pleaded in paragraphs 22-24, 28 and 30 above was without lawful authority; b. The police officers subjecting the Plaintiff to the conduct pleaded in paragraphs 22-24, 28 and 30 above knew or were recklessly indifferent as to the lack of lawful authority in respect or (sic) any or all of their conduct; and c. The police officers, in engaging in any or all of the conduct pleaded in paragraphs 22-24, 28 and 30 above intended to cause injury to the Plaintiff or were recklessly indifferent as to the possibility, 40. By virtue of the matters pleaded in paragraphs 35-39 above, in the premises, the Plaintiff is entitled to damages against the respective police officers involved in either or both of the Burwood Police Station Incident and the Quest Apartments Incident for misfeasance in public office. VICARIOUS LIABILITY 41. Each or all of the claims pleaded in paragraphs 3-30 above constitute a 'police tort claim' within the meaning of section 9B(1) of the Law Reform (Vicarious Liability) Act 1983 (NSW). 42. By virtue of the matter pleaded in the preceding paragraph, and the operation of section 9B(2) of the Law Reform (Vicarious Liability) Act 1983 (NSW) or otherwise, the Defendant is vicariously liable in respect of each of the pleaded torts. 1. It is necessary also to set out those paragraphs of the pleading which are incorporated by reference above. 2. The relevant paragraphs relating to the Burwood Police Station Incident are these: 12 After the Plaintiff was charged (as to which, see the preceding paragraph), several police officers demanded that the Plaintiff sign papers presented to him. Particulars a. Approximately 5 police officers made this demand of him; and b. The police oncers did not identify themselves by name to the Plaintiff and therefore their names are presently unknown to him. 13. The Plaintiff was subjected to duress by, and was fearful of, the police officers when they demanded that he sign papers presented to him (as to which demand, see the preceding paragraph). Particulars a. The Plaintiff was alone with several police officers in an interview room; b. The police officers advised the Plaintiff to oppose making a video recording because the matter would not go in his favour in Court; c. The Plaintiff was not informed with what he was been charged with, and did not know the basis for their actions. He was told that he would be given the relevant documents when he went to Court; d. The Plaintiff was outnumbered and felt surrounded and intimidated by the police officers; e. A police officer, whose name the Plaintiff does not know, said words to the effect that it was necessary for him to sign to (sic) papers presented to him for his release and that, if he did not sign the papers presented to him, he would be kept in jail until a magistrate was available; and f. The Plaintiff felt that he would only be permitted to leave the station if he signed the statement. 14 By virtue of the duress applied by the police officers and the fear felt by the Plaintiff (as pleaded in the preceding paragraph), the Plaintiff signed papers presented to him for signature by the police officers without reading them, being a consent to an Apprehended Violence order (AVO). 15 Following the Plaintiff signing his consent to an AVO (as to which, see the preceding paragraph): a. The Plaintiff was permitted to leave the Burwood Police Station by the police officers; b. A police officer waiting outside the Burwood Police Station handed back to the Plaintiff his backpack, car keys, home keys and mobile telephone; c. The Plaintiff was transported back to the Ashfield Police Station by a police officer and released; and d. Upon subsequent inspection by the Plaintiff of his backpack, he observed that the documents relating to the Wills Dispute in his backpack were in a different order and several documents were missing. 1. The relevant paragraphs relating to the Quest Apartments Incident are these: 22. Following their attendance, the police officers; a. Demanded that the Plaintiff wait outside the building with other police officers (which he did); b. Insisted that the Plaintiff sit on a nature strip and spoke to him aggressively: c. Failed to explain to him the reason for their conduct towards him; d. Entered the Apartment without his knowledge at the time; e. Searched the Plaintiffs motor vehicle; and f. Took the Plaintiff's backpack from him and around the side of the building for a period exceeding 15 minutes. 23. The police officers in attendance did not ask the Plaintiff for his consent in respect of their entry of the Apartment. 24. The police officers in attendance later asserted that they were entitled to enter the Apartment because hotel management had informed them that they could smell cannabis coming from his Apartment. … 28. The police officers, or one of them, denied that they had attended at the request of the Plaintiff, said words to the effect that he should 'shut up', and asserted that they had CCTV footage of his entire stay at the Apartment. … 30 The police officers then: a. Entered and searched the Apartment; b. Asserted that they had found a 'bong' in the Plaintiff's room; c. Did not show the alleged 'bong' to the Plaintiff; d. Demanded that the Plaintiff sign a notebook stating that a 'bong' had been found in the ceiling of the Apartment (which the Plaintiff refused to do); e. Refused the Plaintiffs (sic) requests that the 'bong' be examined for fingerprints or DNA evidence, or that the Plaintiff be drug tested; f. Demanded that the Plaintiff hand over his mobile telephone (which he did), and deleted content from it; g. Accused the Plaintiff of stealing a stereo (which he had not done); h. Instructed the Plaintiff to leave the Apartment and return to the Property (which had not been repaired following the fire pleaded above), which the Plaintiff did); and i. Charged the Plaintiff for maliciously destroying or damaging property and larceny (whereas there was no property damage in the Apartment and he had not stolen anything). Particulars Case No 2015/00054568. Subsequent events 1. The plaintiff was charged on a Field Court Attendance Notice with intentionally or recklessly damaging property being a speaker the property of Quest Apartments. He was also charged with stealing property being a Sony DVD player the property of Quest Apartments. 2. An entry in the COPS record for 9 August 2018 records this as having occurred on 9 February 2015, the day of the Quest Apartments Incident. The police attended at the Quest Apartments in relation to the accused stealing a DVD player and damaging property. The record then goes on to say: Police walked the accused outside where he was placed under arrest and cautioned in relation to the malicious damage of the speaker and stealing of the Sony DVD player. Police asked the accused if he had stolen the DVD player to which he stated "Yeah it's in my van, I was going to take it to my solicitor I'm being bugged". The accused and his backpack were searched. Police located the two sides of the DVD player in his backpack. 1. The plaintiff was ultimately convicted at Waverley Local Court on 1 April 2015 of larceny and destroying or damaging property and was fined $300 in respect of each charge. 2. On 16 April 2015 the plaintiff was convicted at Burwood Local Court of assault occasioning actual bodily harm and stalk or intimidating intending fear. He was fined $400 and $300 respectively. Submissions 1. The defendant submitted that the claim for misfeasance in public office lacks clarity such that the defendant does not know and cannot know the case it is to meet. The defendant submitted that the claim fails to identify with any precision the individual police officers said to have committed the tort; it fails to provide particulars of the relevant elements of the tort; and it fails to recognise that the plaintiff's convictions in respect of the matters alleged to underpin the tort, tend against any prospect of success on the claim. 2. Although the defendant's written submissions drew attention to authorities concerned with summary judgment and asserted that the pleading meets the test in those authorities to permit the claim to be struck out summarily, counsel for the defendant confirmed at the hearing of the notice of motion that the application was one to strike out a pleading pursuant to r 14.28 Uniform Civil Procedure Rules 2005 (NSW) and not to seek summary dismissal of the claim. However, a relevant consideration is whether, if the pleading is struck out, the plaintiff should be permitted to re-plead the claim. 3. The defendant submitted that the difficulties associated with the pleading mean that the defendant is not in a position to know whether it should accept vicarious liability for what is alleged against the relevant police officers. 4. The defendant submitted that one of the fundamentals of the tort was the identity of the public officer who is alleged to have committed the act complained of. A further fundamental, it was submitted, was that the pleading must specify what the invalid or unauthorised act was that was done in purported discharge of the officer's public duty. The defendant submitted that the matters giving rise to the act being done maliciously or recklessly must be pleaded, and there must be some form of harm demonstrated to the plaintiff. 5. The plaintiff submitted that, in relation to the identity of the police officers, there was sufficient material for the defendant to be able to identify the police officers from the COPS entries in relation to the Quest Apartments Incident. The plaintiff also submitted that the defendant's solicitor was able to identify Constable Mackie in relation to the Burwood Police Station Incident. 6. The plaintiff submitted that the present was a classic situation where the defendant was the party in possession of the relevant documents, but the plaintiff was in the position of needing to particularise his claim as best as he could. The plaintiff submitted that after interlocutory procedures have taken place such as discovery, the plaintiff would be in a better position to particularise his claim. He submitted that the complaint by the defendant is essentially a complaint about the particulars which the plaintiff has supplied and needs to supply. 7. The plaintiff submitted that in relation to the identification of the unauthorised acts, the plaintiff's position is that the unauthorised act was intimidation by the police officers. In relation to the Burwood Police Station Incident the plaintiff submitted that that was pleaded in paragraph 13 of the pleading. In relation to the Quest Apartments Incident, the plaintiff accepted paragraph 29 of the pleading needed to be re-pleaded to assert that the police intimidated the plaintiff. Legal principles 1. In Northern Territory of Australia v Mengel (1996) 185 CLR 307 the joint judgment of Mason CJ, Dawson, Toohey, Gaudron and McHugh JJ said at 347-348: [60] The cases do not establish that misfeasance in public office is constituted simply by an act of a public officer which he or she knows is beyond power and which results in damage. Nor is that required by policy or by principle. Policy and principle both suggest that liability should be more closely confined. So far as policy is concerned, it is to be borne in mind that, although the tort is the tort of a public officer, he or she is liable personally and, unless there is de facto authority, there will ordinarily only be personal liability. And principle suggests that misfeasance in public office is a counterpart to, and should be confined in the same way as, those torts which impose liability on private individuals for the intentional infliction of harm. For present purposes, we include in that concept acts which are calculated in the ordinary course to cause harm, as in Wilkinson v. Downton , or which are done with reckless indifference to the harm that is likely to ensue, as is the case where a person, having recklessly ignored the means of ascertaining the existence of a contract, acts in a way that procures its breach. [61] It may be that analogy with the torts which impose liability on private individuals for the intentional infliction of harm would dictate the conclusion that, provided there is damage, liability for misfeasance in public office should rest on intentional infliction of harm, in the sense that that is the actuating motive, or on an act which the public officer knows is beyond power and which is calculated in the ordinary course to cause harm. However, it is sufficient for present purposes to proceed on the basis accepted as sufficient in Bourgoin, namely, that liability requires an act which the public officer knows is beyond power and which involves a foreseeable risk of harm. [62] If misfeasance in public office is viewed as a counterpart to the torts imposing liability on private individuals for the intentional infliction of harm, there is much to be said for the view that, just as with the tort of inducing a breach of contract, misfeasance in public office is not confined to actual knowledge but extends to the situation in which a public officer recklessly disregards the means of ascertaining the extent of his or her power. However, that is not what was put in this case. The argument was that it is sufficient that the officer concerned ought to have known that he or she lacked power. … 64. If it were the case that governments and public officers were not liable in negligence, or that they were not subject to the same general principles that apply to individuals, there would be something to be said for extending misfeasance in public office to cover acts which a public officer ought to know are beyond his or her power and which involve a foreseeable risk of harm. But in this country governments and public officers are liable in negligence according to the same general principles that apply to individuals. And, in that context, the argument that misfeasance in public office should be reformulated to cover the case of a public officer who ought to know of his or her lack of power can be disposed of shortly. So far as unintended harm is concerned, the proposed reformulation suffers the same defect in relation to the law of negligence as does the principle in Beaudesert, namely, it serves no useful purpose if there is a duty of care to avoid the risk in question and is anomalous if there is not. And it serves no purpose if the public officer is actuated by an intention to harm the plaintiff for that constitutes misfeasance in public office whether or not the officer knows that he or she lacks authority. (Emphasis added; citations omitted) 1. In the same case, Deane J said at 370: [23] As Lord Diplock observed, in delivering the judgment of the Privy Council in Dunlop v. Woollahra Municipal Council, the tort of misfeasance in public office is "well-established". Its elements are: (i) an invalid or unauthorized act; (ii) done maliciously; (iii) by a public officer; (iv) in the purported discharge of his or her public duties; (v) which causes loss or harm to the plaintiff. That summary statement of the elements of the tort inevitably fails to disclose some latent ambiguities and qualifications of which account must be taken in determining whether a particular element is present in the circumstances of a particular case. The critical element for present purposes is malice. 1. In Sanders v Snell (1999) 196 CLR 329; [1998] HCA 64, the joint judgment of Gleeson CJ, Gaudron, Kirby and Hayne JJ said: [37] Questions of holding public officials liable for acts done apparently in furtherance of their duty raise very different considerations from those that may arise in relation to economic torts committed by private persons. Misfeasance in public office is concerned with misuse of public power. Inappropriate imposition of liability on public officials may deter officials from exercising powers conferred on them when their exercise would be for the public good. But too narrow a definition of the ambit of liability may leave persons affected by an abuse of public power uncompensated. The tort of misfeasance in public office must seek to balance these competing considerations. Not surprisingly, identifying the intention with which the public official acts has a prominent place in striking that balance. The considerations that arise in the case of public officials do not arise in a dispute between private citizens about economic harm allegedly inflicted by one on the other. There the focus may be less on the intention of the alleged tortfeasor than it is on the means employed because the intended pursuit of economic advantage (and resulting economic harm to rivals) is central to competition. Equating the tort of misfeasance with a tort of wrongful interference with economic interests or subsuming the tort of misfeasance in that latter tort would pay too little regard to the different considerations that we have mentioned. [38] For present purposes it may be accepted that the tort of misfeasance in public office extends to acts by public officers that are beyond power, including acts that are invalid for want of procedural fairness. But to establish that tort, it is not enough to show the knowing commission of an act beyond power and resulting damage. As the majority said in Mengel: "The cases do not establish that misfeasance in public office is constituted simply by an act of a public officer which he or she knows is beyond power and which results in damage. Nor is that required by policy or by principle. Policy and principle both suggest that liability should be more closely confined. So far as policy is concerned, it is to be borne in mind that, although the tort is the tort of a public officer, he or she is liable personally and, unless there is de facto authority, there will ordinarily only be personal liability. And principle suggests that misfeasance in public office is a counterpart to, and should be confined in the same way as, those torts which impose liability on private individuals for the intentional infliction of harm. For present purposes, we include in that concept acts which are calculated in the ordinary course to cause harm, as in Wilkinson v Downton, or which are done with reckless indifference to the harm that is likely to ensue, as is the case where a person, having recklessly ignored the means of ascertaining the existence of a contract, acts in a way that procures its breach." For the purposes of deciding Mengel, the majority considered it sufficient to proceed on the basis that the tort requires an act which the public official knows is beyond power and which involves a foreseeable risk of harm but noted also that there seems much to be said for the view that misfeasance extends to the situation of a public official recklessly disregarding the means of ascertaining the extent of his or her power. Consideration 1. The first difficulty with the pleading concerns the grouping together of the police officers in relation to each incident. As Mengel made clear, the tort is one for which a public officer is personally liable. Before one reaches the issue of the vicarious liability of the State, it is necessary for the plaintiff to identify which individual officer or officers performed the unauthorised act. Not the least reason for that is because it must be shown that the invalid or unauthorised act was done intentionally or recklessly, with those mental states being linked to the infliction of harm. 2. In Moder v Commonwealth of Australia; Sochorova v Commonwealth of Australia [2012] QCA 92; (2012) 261 FLR 396, Margaret Wilson AJA (with whom Muir and Fraser JJA agreed) said: [70] As the High Court observed in Mengel, the tort of misfeasance in public office is the tort of an individual public officer, for which he or she is personally liable. It is not the tort of the public officer's employer. In the present context, the defendant (the Commonwealth) would not be vicariously liable for its officers' intentional conduct, unless it authorised that conduct. That is not the case that has been pleaded. [71] Ms Sochorova's pleading is premised on a fundamental misconception of the tort of misfeasance in public office. [72] She has not pleaded that one or more officers knowingly acted in excess of their powers. Even if an inference of bad faith on the part of an individual officer could be drawn from a multiplicity of errors by that officer over a period of time, that is not the case that has been pleaded. [73] Paragraph 13(a) of the statement of claim seems to be an allegation that bad faith can be inferred from the multiplicity of errors by the department and the MRT over seven years. However, a case of misfeasance in public office cannot be built upon a foundation that is a composite of the conduct of a number of individual officers, let alone a department or a statutory tribunal. 1. In Golden v Littleproud [2019] NSWSC 120 Harrison AsJ made reference to the judgment of Margaret Wilson AJA in Moder, and went on to say at [79]: Similarly, in these current proceedings, the plaintiff seems to allege that the allegations of bad faith and fraud can be inferred from an alleged multiplicity of errors by wide-ranging officers of government departments and statutory bodies, from 2008 to date. As is stated in Moder, a case of misfeasance in public office cannot be built upon a foundation that is a composite of the conduct of a number of individual officers, let alone a department or a statutory tribunal. 1. The pleading in the further amended statement of claim in the present case adopts a similar approach. In relation to the Burwood Police Station Incident it refers in paragraph 12 to five police officers in paragraphs 13-15 and various acts which those officers were alleged to have done, without specifying who they were and what each did. 2. In relation to the Quest Apartments Incident paragraph 21 refers to ten police officers being present. Paragraphs 22-24, 28 and 30 then again refer to collective acts of those officers. 3. A similar issue arose in Duke v State of New South Wales [2005] NSWSC 632. Justice Hidden said at [33]: …[I]f it is intended to rely upon the conduct of all five officers, it might be desirable to specify how the conduct of each of them meets the requirements of the tort. With all due respect to Hidden J, what was said in Mengel, in Moder and in Golden v Littleproud (the latter two decisions postdating that in Duke) make it a requirement rather than merely desirable that the conduct of each officer be specified. 1. The identification of the officers is effectively required by the provisions of the Law Reform (Vicarious Liability) Act 1983 (NSW). Part 4 of that Act relevantly provides: Part 4 Legal proceedings for damages for torts by police officers … 9B How can police tort claims be made? (1) A police tort claim is a claim for damages for a tort allegedly committed by a police officer (the police officer concerned) in the performance or purported performance of the officer's functions (including an independent function) as a police officer, whether or not committed jointly or severally with any other person. (2) Except as provided by this Part, a person may not in any legal proceedings make a police tort claim against the police officer concerned, but may instead make the claim against the Crown. (3) A person who makes a police tort claim against the Crown in any legal proceedings may join the police officer concerned as a party to the proceedings only if the Crown denies that it would be vicariously liable for the alleged tort if it were established that the police officer concerned had committed the tort. (4) If a person seeks to join a police officer under subsection (3) as a party to legal proceedings: (a) the person is not required to file a new originating process, but may instead amend the existing originating process, and (b) the court is to make such orders as it considers appropriate to enable the existing originating process to be duly amended, and (c) nothing in the Limitation Act 1969 precludes the making of a claim in the amended originating process for damages against the police officer for the alleged tort if the amendment to the originating process is made within 2 months after the Crown denies that it would be vicariously liable for the alleged tort if it were established that the police officer had committed the tort. 9C Court required to make initial determination as to vicarious liability in any legal proceedings where in issue If the vicarious liability of the Crown is in issue in any legal proceedings in which a claim is made for damages for a tort allegedly committed by a police officer (whether or not it is a police tort claim) and the Crown and the police officer are both parties to the proceedings: (a) subject to paragraph (b) - the court must make an initial determination as to whether or not the Crown would be vicariously liable for the tort if it were established that the tort was committed by the police officer, and (b) that determination is to be made as soon as is reasonably practicable during the proceedings unless the court considers it impracticable in the circumstances to make such a determination before it determines whether or not the tort was committed. 9D When court to strike out or dismiss claims against police officer or Crown (1) Subject to section 9E, a court must make such orders as it considers appropriate to ensure that a claim before it for damages against a police officer for a tort allegedly committed by the officer is struck out or dismissed if: (a) the court makes an initial determination under section 9C that the Crown would be vicariously liable for the tort if it were established that the tort was committed by the police officer, or (b) the Crown concedes that it would be vicariously liable for the tort if it were established that the tort was committed by the police officer. (2) A court must make such orders as it considers appropriate to ensure that a claim before it for damages against the Crown for a tort allegedly committed by a police officer is struck out or dismissed if it makes an initial determination under section 9C that the Crown would not be vicariously liable for the tort if it were established that the tort was committed by the police officer. 9E Part does not affect certain claims and legal proceedings Nothing in this Part: (a) makes the Crown vicariously liable for a tort committed by a police officer if it would not otherwise be vicariously liable for that tort, or … 1. A similar issue arose in Duke. The position was set out by Hidden J as follows: [1] The plaintiff, Christopher William Duke, has commenced proceedings by way of statement of claim against the State of New South Wales, as the first defendant, and four police officers, as the second to the fifth defendants. Before me is a motion on his behalf that he have leave to file an amended statement of claim and to join another police officer as the sixth defendant. … … [3] On 2 February 1990 the second to the sixth defendants, in their capacity as police officers, searched the plaintiff's house at Bathurst. The plaintiff was arrested and charged with supplying heroin. Put shortly, it is alleged that the police "planted" a quantity of heroin in a resealable plastic bag in the premises and fabricated evidence that he made relevant admissions about it. The second defendant made a statement in which he claimed to have found the heroin and to have had a conversation with the plaintiff in which the admissions were made. The third to the sixth defendants made statements corroborating that of the second defendant. [4] In due course, the plaintiff was committed for trial in the Bathurst District Court. The trial took place towards the middle of 1992, and he was found guilty and sentenced to a term of imprisonment. In 1996 the fourth and sixth defendants admitted in the Police Royal Commission that the evidence against him had been fabricated. In 1999 the Court of Criminal Appeal quashed his conviction and entered a verdict and judgment of acquittal: R v Duke [1999] NSWCCA 281. Amended statement of claim [5] Only the first defendant appeared at the hearing of the motion. The case is affected by Pt 4 of the Law Reform (Vicarious Liability) Act 1983, the relevant provisions of which it is not necessary to examine. The first defendant concedes vicarious liability, in accordance with s9D(1)(b) of that Act, in respect of the second, third and fifth defendants. Accordingly, Mr Toner SC, for the plaintiff, acknowledged that those three officers should not have been joined as parties: s9B(3). However, by virtue of that latter provision, it was appropriate that the fourth defendant be joined because the first defendant denies vicarious liability in respect of him. Whether it is appropriate to join the proposed sixth defendant depends upon whether the first defendant concedes vicarious liability in respect of that officer, a matter which had not been determined at the time the motion was heard. 1. In the present case, and bearing in mind that the joint judgment in Mengel said that "unless there is de facto authority, there will ordinarily only be personal liability", vicarious liability is in issue in the present proceedings: s 9C of the Act. It is necessary for the Court to know if the proceedings are properly constituted having regard to s 9B(2) and (3). Further, s 9D cannot be satisfied until the issue of vicarious liability has been determined. In the absence of knowing which police officer committed which unauthorised or invalid act, vicarious liability cannot be determined. 2. Although the pleading makes reference to s 9B(2) of the Act to allege that the defendant is vicariously liable, s 9B does not itself confer vicarious liability on the defendant unless the claim is a police tort claim. As sections 9C and 9D make clear, vicarious liability does not automatically attach to the acts alleged. Section 9E expressly preserves any common law which might preclude vicarious liability attaching to the defendant. That might be thought to be a reference, at least, to that portion of Mengel highlighted above at [29]. The plaintiff does not plead anything relating to authority. 3. It is not an answer, as the plaintiff seeks to say, that the defendant has not denied vicarious liability. The defendant has not, thus far, been required to file a defence nor to make any decision about vicarious liability. It is not able to do so until the officers and the acts are properly pleaded. 4. Nor is it an answer to these matters for the plaintiff to say that, either he is not able to identify the police officers more specifically than has been done in answer to particulars, or that the defendant has the means of knowledge of who those officers were. Rules 5.2 and 5.3 UCPR provide for discovery to ascertain the identity of prospective defendants and the discovery of documents from prospective defendants. 5. The fact that the entry in the COPS record refers to a number of police officers, and the fact that the defendant's solicitor spoke to Constable Mackie about what occurred at the Burwood Police Station Incident, does not advance the matter. Until the defendant knows which officers are said to have carried out the unauthorised acts with the necessary intention or recklessness, the defendant is not in a position to determine if it will accept vicarious liability for those acts and those officers. Without the plaintiff identifying the officers who are alleged to have carried out the unauthorised or invalid acts, the defendant cannot assume that the police in the COPS entry are the officers the subject of the plaintiff's claim. 6. The second difficulty the plaintiff has concerns the identification of the invalid or unauthorised acts which each of the officers is alleged to have committed. The plaintiff submitted that in each case it was an act of intimidation as paragraph 13 pleaded and (as counsel for the plaintiff accepted) paragraph 29 ought to have pleaded. The plaintiff made reference to s 545B of the Crimes Act 1900 (NSW) and s 13 of the Crimes (Domestic and Personal Violence) Act 2007 (NSW). It does not seem to me that those sections assist the plaintiff in the argument it wants to make that the Act in each case was intimidation. 7. Intimidation, even when used in those Acts, is a conclusion that is drawn from particular acts of behaviour. A person may intimidate another by shouting at them or brandishing a weapon or speaking close to their face with a particular tone to their voice. Any of those acts might mean that an offence has been committed or that there has been some form of duress. In terms of the tort of misfeasance in public office, it does not advance an understanding of the act to say that it was one of intimidation. Although counsel for the plaintiff asserted that the act might be lawful but might be carried out in an unlawful way because intimidation was involved, it is difficult to see how such a lawful act would become unlawful by the means of its execution in the manner described. 8. Although the plaintiff asserts that the act in each incident was intimidation, the pleading in paragraph 39b, "any or all of their conduct", suggests particular acts rather than an overall act of intimidation. 9. What seems to be the true situation appears from a number of parts of the pleading including paragraph 13 particulars (d) and (f) as well as paragraph 29, namely, that the plaintiff felt fearful and intimidated. As counsel for the plaintiff now concedes, such a pleading is inadequate for a proper pleading of the tort. 10. The defendant sought to clarify the acts which the plaintiff relied upon as unauthorised or invalid acts in a request for particulars. Paragraphs 9, 22, 23 and 24 sought particulars of how particular matters set out in the statement of claim were alleged to be beyond power or for an ulterior or improper purpose. The answer provided in each case was that the paragraph was not a proper request for particulars but a request for legal exposition. It was inappropriate for the solicitors for the plaintiff to respond in that way when there was no pleading to the effect that the acts were unauthorised or invalid nor that they had been done with intention or recklessness to inflict harm on the plaintiff. 11. The issue in dispute between the parties on the present notice of motion is not, as the plaintiff contends, a matter concerning further and better particulars. In that way, authorities such as Deemah Marble & Granite Pty Ltd v Sutherland [2001] NSWSC 829 and Street v Luna Park Sydney Pty Ltd [2006] NSWSC 533 do not need to be considered. 12. The third difficulty for the plaintiff relates to the suffering of damage. Damage is an essential element of the tort. It may be reputational harm as in Obeid v Lockley [2018] NSWCA 71 at [28] and [153], it may be actual economic loss such as in Saunders v Snell at [3], or it may be both economic loss and personal injury as in Moder at [38]. Whilst the plaintiff has eschewed any personal injuries damages in the present case, the plaintiff does not plead that he suffered harm, damage or loss as a result of the alleged misfeasance. He pleads only in paragraph 40 that he is entitled to damages. But for what, one might ask, on the basis of the pleading? Damages are payable to compensate for damage, loss or harm. None is pleaded or identified. 13. The matter of damage or harm is related to the unauthorised or unlawful act or acts because it is the carrying out of those acts intentionally or recklessly which must be shown to inflict the harm. Counsel for the plaintiff said that the plaintiff was not pointing to specific economic loss. Rather, he was seeking compensation "for the fact of the act" being the "interference with his … personal liberty". The difficulty arising from that characterisation of the damages is that, in relation to both incidents, the plaintiff was arrested and charged with criminal offences, and was ultimately convicted and sentenced in relation to each of those offences. Any deprivation of his liberty could not, in the circumstances, sound in damages. 14. In relation to the Burwood Police Station Incident, after being arrested and charged, he was told that he could not leave the police station until he signed some papers. One of the papers that he signed, and needed to sign, was his bail acknowledgment. He was not unlawfully detained until he did so. 15. In relation to the Quest Apartments Incident, the evidence discloses that one reason the police attended at his apartment was as a result of an allegation by the manager of the apartments that the plaintiff had stolen a DVD player and had destroyed or damaged property. The police were entitled to investigate those matters, and it was in those circumstances that the events set out in paragraph 22 of the Further Amended Statement of Claim took place. The COPS report discloses that the plaintiff was arrested at the scene. He was ultimately convicted of those offences. 16. It should be borne in mind that this tort, like allegations of fraud and dishonesty, is one which ordinarily involves serious allegations against those said to have performed unauthorised or invalid acts. In Three Rivers District Council and Others v Governor and Company of the Bank of England (No 3) [2003] 2 AC 1, Lord Millett said of the tort of misfeasance in public office at [184]: It is well established that fraud or dishonesty (and the same must go for the present tort) must be distinctly alleged and as distinctly proved; that it must be sufficiently particularised; and that it is not sufficiently particularised if the facts are consistent with innocence. See also Rajski v Bainton (1990) 22 NSWLR 125 at 135-136 and Danthanarayana v Commonwealth of Australia [2014] FCA 552 at [97]. 1. In my opinion, the pleading in paragraphs 35-40 of the further amended statement of claim does not disclose a reasonable cause of action, and it is an embarrassing pleading. It should be struck out. Re-pleading 1. The further question is whether leave should be given again to the plaintiff to re-plead. 2. These proceedings first commenced on 23 August 2017. The plaintiff filed a document called "Statement of Claim" but it did not plead any cause of action. On a motion brought by the defendant, I struck out that statement of claim on 12 June 2018. The plaintiff was acting for himself but he claimed to have a pro bono barrister advising him. Because he was acting for himself I considered that he should be given one further opportunity to plead properly the claim he sought to bring. 3. An amended statement of claim was filed on 9 July 2018. It was at least able to be discerned from that amended statement of claim what the plaintiff's complaints were. Two of the complaints were the present complaints he makes being the Burwood Police Station Incident and the Quest Apartments Incident. 4. At a later time the plaintiff retained his present solicitors who obtained leave to file the further amended statement of claim, the subject of this judgment. 5. Although it is entirely unsatisfactory that the plaintiff is still seeking to plead properly the claims he wishes to bring some three years after the proceedings were commenced, I consider that the fact that he now has solicitors and counsel acting for him and that he has an unchallenged claim in trespass going forward, means that he should be given one further and final opportunity to get his pleadings into order, if he wishes to pursue the claim for misfeasance in public office. Conclusion 1. Accordingly, I make the following orders: 1. Paragraphs 35-40 of the further amended statement of claim filed 25 February 2020 are struck out pursuant to r 14.28 Uniform Civil Procedure Rules 2005 (NSW). 2. Leave is given to the plaintiff to re-plead the claim for misfeasance in public office. Any such further pleading is to be filed and served by 15 September 2020. 3. The plaintiff is to pay the defendant's costs of the notice of motion. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 18 August 2020