New South Wales Supreme Court CITATION : McGuirk v The State of New South Wales [2008] NSWSC 372 HEARING DATE(S) : 14 February 2008 JUDGMENT DATE : 29 April 2008 JURISDICTION : Common Law Division Administrative Law List JUDGMENT OF : Hislop J DECISION : (1) The amended notice of motion is dismissed. (2) The defendant is to pay the plaintiff's costs. (3) Stand over the proceedings to the registrar's list on 5 May 2008 for directions. CATCHWORDS : PRACTICE AND PROCEDURE - concurrent civil and criminal proceedings - application to strike out statement of claim or stay civil proceedings. LEGISLATION CITED : Inclosed Lands Protection Act, 1901 Crimes Act, 1900 Brimson v Rocla Concrete Pipes Ltd (1982) Batistatos v Roads & Traffic Authority of NSW [2006] HCA 27 Ridgeway v The Queen (1995) 184 CLR 19 CASES CITED : Sankey v Whitlam (1978) 142 CLR 1 McMahon v Gould (1982) 7 ACLR 202 Halabi v Westpac Banking Corporation (1989) 17 NSWLR 26 Niven v SS [2006] NSWCA 338 PARTIES : Gerard Michael McGuirk (Plaintiff) The State of New South Wales (Defendant) FILE NUMBER(S) : SC 30026/07 COUNSEL : In person (Plaintiff) B.C. Kasep (Defendant) SOLICITORS : Crown Solicitor (Defendant) IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION ADMINISTRATIVE LAW LIST HISLOP J Tuesday 29 April 2008 30026/07 GERARD MICHAEL McGUIRK v THE STATE OF NEW SOUTH WALES JUDGMENT 1 HIS HONOUR: The plaintiff, in his statement of claim filed on 3 August 2007, alleges, in essence, that the defendant is vicariously liable for the acts and omissions of certain police officers in respect of: (a) his arrest and imprisonment on 12 August 2006; (b) the imposition of bail conditions on him on 12 August 2006; (c) his arrest and imprisonment on 15 February 2007; (d) his arrest and imprisonment on 19 February 2007; (e) a strip search of him on 19 February 2007. He alleges the arrests were unlawful as was the strip search, that he was falsely imprisoned, and that the bail conditions were unlawfully imposed. He seeks damages for such conduct and declarations as to the unlawfulness of the arrests and imposition of bail conditions. 2 The proceedings were initially instituted by summons filed in this court on 28 March 2007. In the summons some sixteen declarations were sought. The summons was replaced by the statement of claim which incorporated in the relief sought some of the declarations previously sought in the summons. The statement of claim also included a claim for damages which was not made in the summons. 3 Following his arrest on 12 August 2006 the plaintiff was charged with remain on inclosed lands in breach of the Inclosed Lands Protection Act, 1901, s 4(1)(a) and resist an officer whilst in the execution of his or her duty pursuant to the Crimes Act 1900, s 58. The latter charge was subsequently withdrawn and a charge of resist or hinder police pursuant to the Crimes Act 1900, s 546C was substituted. 4 These charges, together with a strike out application by the plaintiff in respect of them and an application by the Crown to strike out a subpoena issued by the plaintiff, are being heard together in the Local Court. They are presently part heard. The bail conditions imposed on the plaintiff on 12 August 2006 were removed on 19 October 2007. 5 The defendant, by notice of motion filed in this court on 5 September 2007, sought orders: "1. That the Amended [sic] Statement of Claim be struck out pursuant to rule 14.28 of the UCPR, and the plaintiff be ordered to replead the Amended Statement of Claim. 2. That the plaintiff pay the defendant's costs of the motion." 6 In submissions the defendant initially limited the orders sought to prayers 1 and 2 of the statement of claim and the material allegations of fact relied upon by the plaintiff in support of the relief claimed in those prayers. During addresses counsel for the defendant amended the notice of motion by deleting order 1 and in lieu thereof seeking the following order: "An order that the first prayer for relief together with paragraphs 4 to 18, 21 to 22, 31 to 32 and 41 to 42 of the Statement of Claim filed 3 August 2007 be struck out pursuant to r 14.28 of the Uniform Civil Procedure Rules 2005 (NSW)." 7 The "first prayer for relief" is in the following terms: "A declaration that the arrest of the plaintiff by officers of the NSW Police Force at approximately 4.00 am in the morning of Saturday 12 August 2006 at 52 Day Street, Drummoyne was not authorised by, or constituted an improper exercise of the discretion conferred by section 99 of the Law Enforcement (Powers and Responsibilities) Act 2002, and was unlawful." 8 The defendant submitted that the declaration sought in prayer 1 and the material facts relied upon in respect thereof were the subject of the proceedings in the Local Court, which was the appropriate forum in which to ventilate and determine those issues. The pleading of those matters and the attempt to have them ventilated in this court, prior to the determination of the criminal proceedings, was an abuse of the process of the court as a consequence of which that material should be struck out. 9 The plaintiff accepted that the lawfulness of his arrest on 12 August 2007 was an issue which arose in both these proceedings and the proceedings in the Local Court. However, he submitted that this provided no basis to strike out any part of the statement of claim. 10 The plaintiff informed the Court on a number of occasions during the hearing that he had no intention to dispute, interfere with, delay or postpone the proceedings in the Local Court. He accepted that those proceedings should proceed to their conclusion before the magistrate. 11 Rule 14.28 is in the following terms: "(1) The court may at any stage of the proceedings order that the whole or any part of a pleading be struck out if the pleading: (a) discloses no reasonable cause of action or defence or other case appropriate to the nature of the pleading, or (b) has a tendency to cause prejudice, embarrassment or delay in the proceedings, or (c) is otherwise an abuse of the process of the court. (2) The court may receive evidence on the hearing of an application for an order under subrule (1)." 12 As is apparent from the terms of the rule, the power of the court under this rule is limited to cases where there is a defect in the pleadings, ie the statement of claim itself - Brimson v Rocla Concrete Pipes Ltd (1982) 2 NSWLR 937 at 941. Thus it is only when a pleading is defective, in that the pleading discloses no cause of action or the pleading tends to cause prejudice, embarrassment or delay, or the pleading is otherwise an abuse of a process of the court, that the court has power under r 14.28 to strike out the pleading. This rule is to be contrasted with r 13.4 which empowers the court to dismiss proceedings if the proceedings are frivolous or vexatious, no reasonable cause of action is disclosed or the proceedings are an abuse of the process of the court. 13 What amounts to an abuse of court process is insusceptible of a formulation comprising closed categories - Batistatos v Roads & Traffic Authority of NSW [2006] HCA 27 at [9]. As Gaudron J explained in Ridgeway v The Queen (1995) 184 CLR 19: "Abuse of process cannot be restricted to 'defined and closed categories' because notions of justice and injustice, as well as other considerations that bear on public confidence in the administration of justice, must reflect contemporary values and, as well, take account of the circumstances of the case." 14 Counsel for the defendant relied upon r 14.28(b) and (c). As observed by Gaudron J in Ridgeway at 74-75 the powers to prevent an abuse of process have traditionally been seen as including a power to stay proceedings instituted for an improper purpose, as well as proceedings that are "frivolous, vexatious or oppressive". 15 The defendant accepted the plaintiff was entitled to bring these proceedings. It accepted that the statement of claim satisfactorily pleaded the material allegations of fact on which the plaintiff relied for relief. It was not alleged that the statement of claim was in its terms vexatious or oppressive or that it had been filed for an improper purpose. The statement of claim does not have a tendency to cause prejudice, embarrassment or delay in these proceedings. Although it would not be necessary in an action for damages to obtain a formal declaration that the arrests and imposition of bail conditions were unlawful, nevertheless a finding to that effect is necessary if the plaintiff is to succeed. The striking out of parts of the statement of claim would lead to fragmentation of the proceedings. 16 In my opinion, there is no defect in the statement of claim such as to enliven r 14.28. In particular it was not an abuse of process to file the statement of claim prior to the determination of the criminal proceedings. The application to strike out part of the statement of claim pursuant to Pt 14.28 is refused. 17 Counsel for the defendant, when amending para 1 of the notice of motion, also added a new paragraph in the following terms: "2. In the alternative, an order that Supreme Court of New South Wales proceedings no. 30026 of 2007 be stayed, on such terms as the Court thinks fit, pending the final determination of: (a) the proceedings comprising Local Court of New South Wales Charge Number H28305678; (b) all applications in the proceedings comprising Local Court of New South Wales Charge Number H28305678; (c) all appeals from the proceedings comprising Local Court of New South Wales Charge Number H28305678." 18 The defendant submitted that a stay was required to prevent relevant issues being ventilated in this court prior to the determination of the proceedings in the Local Court. It was submitted the stay should extend to all preparation of the proceedings as otherwise the defendant would suffer prejudice. 19 The defendant submitted the prejudice was that: (a) it would be occasioned difficulty in filing a defence as it might very well want the benefit of whatever transpires in the Local Court before it puts on a defence given that the facts still might be fluid; (b) in order to verify the defence it would be necessary to seek instructions from the police officers who were involved in the criminal proceedings and would likely be giving evidence in those proceedings. Conferencing with such officers in respect of civil proceedings on the subject matter of the evidence they will give was not a preferable course; (c) the plaintiff might well amend his claim if he succeeds in the Local Court to include a common law action of malicious prosecution which he would be entitled to do. This, however, would involve the Crown putting on two defences, one in relation to the statement of claim and the other in relation to the amended statement of claim, and there would obviously be considerable costs associated with that exercise. 20 The plaintiff accepted that this court had power to order a stay but submitted that it was not an appropriate case for such an order. He stated that he would have no objection to a stay, on one condition, and that condition would be that the State of New South Wales files its defence. He summarised his position as "certainly while I am happy for the matter not to come to trial until the other matter is finalised, I don't want a further delay beyond that date. I want us to be ready to go as soon as possible after these Burwood Local Court matters are determined in court." 21 It is appropriate to note that the felony tort rule no longer has application, that this is not a case where there are criminal proceedings on foot or contemplated and orders are sought in a civil court directly and intentionally affecting the conduct of the criminal proceedings, see eg Sankey v Whitlam (1978) 142 CLR 1, and that, as it is the plaintiff who seeks to pursue the civil proceedings, issues relating to the right to remain silent do not arise. 22 In McMahon v Gould (1982) 7 ACLR 202 Wootten J stated a series of guidelines which it is appropriate to consider in relation to the application for a stay. 23 Those guidelines, so far as here relevant, are: "(a) Prima facie a plaintiff is entitled to have his action tried in the ordinary course of the procedure and business of the court; (b) It is a grave matter to interfere with this entitlement by a stay of proceedings, which requires justification on proper grounds; (c) The burden is on the defendant in a civil action to show that it is just and convenient that the plaintiff's ordinary rights should be interfered with; (d) Neither an accused nor the Crown are entitled as of right to have a civil proceeding stayed because of a pending or possible criminal proceeding; (e) The court's task is one of 'the balancing of justice between the parties', taking account of all relevant factors; (f) Each case must be judged on its own merits, and it would be wrong and undesirable to attempt to define in the abstract what are the relevant factors;… (l) In an appropriate case the proceedings may be allowed to proceed to a certain stage, eg, setting down for trial, and then stayed." 24 McMahon was expressly approved in the Court of Appeal by McHugh JA in Halabi v Westpac Banking Corporation (1989) 17 NSWLR 26 at 59, see also Niven v SS [2006] NSWCA 338. 25 The greater part of the plaintiff's claim is unaffected by the Local Court proceedings, there are presumably full proofs of the police evidence available to assist in conferring with the police witnesses and in preparing a defence. The cost of amending the defence, if required, would not be significant in the scheme of things. There is no suggestion that the filing of a defence would result in the fabrication of evidence by the plaintiff. The plaintiff has at all times asserted to the Court that he has no intention of delaying or postponing the proceedings in the Local Court and he has said that he is happy for this matter not to come to trial until the other matter is finalised. It is probable the Local Court proceedings will be concluded before these proceedings are ready to be heard. Additionally, any claim for malicious prosecution cannot be brought until the proceedings in the Local Court have terminated. 26 In these circumstances, the defendant has not, in my opinion, shown that it is appropriate, at this stage, to interfere with the plaintiff's ordinary rights to bring and prosecute these proceedings. However, in the event that the plaintiff, contrary to what he has indicated to the Court, sought to bring these proceedings on for hearing before the Local Court proceedings had terminated, it may, depending on the circumstances at that time, be appropriate for the defendant to make a further application for a stay of the proceedings. 27 The plaintiff made a submission that the costs of this application should be paid by a previous legal representative of the defendant. The legal representative was not present at the hearing of the notice of motion. The basis asserted for the costs order involved the consideration of substantive issues in the proceedings. It would be inappropriate to consider those issues on an interlocutory application of this nature. However, as the plaintiff has been successful on the application, he is entitled to a costs order against the defendant. Orders 28 I make the following orders: 1. The amended notice of motion is dismissed. 2. The defendant is to pay the plaintiff's costs. 3. Stand over the proceedings to the Registrar's list on 5 May 2008 for directions. ********** 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.