New South Wales Court of Appeal CITATION: WANG v STATE OF NEW SOUTH WALES [2009] NSWCA 340 HEARING DATE(S): 14 October 2009 JUDGMENT DATE: 14 October 2009 JUDGMENT OF: Basten JA at 1; Macfarlan JA at 1 EX TEMPORE JUDGMENT DATE: 14 October 2009 1. Grant the applicants leave to appeal. 2. Costs of the application for leave to be costs in the appeal. 3. Applicant to file and serve a notice of appeal in proper form. DECISION: 4. Refer the applicant to the Registrar for referral to a lawyer on the Pro Bono Panel for advice and assistance in preparing for the appeal and, if thought appropriate, for representation at the hearing of the appeal. 5. Extend time for filing and service of the Notice of Appeal to 14 December 2009. 6. Liberty to each party to apply to the Registrar for further directions on 3 days notice. 7. Direct that the respondent to the proceedings be the "State of New South Wales". CATCHWORDS: APPEAL – application for leave – proposed appeal from summary dismissal – whether inadequate pleading properly construed - TORTS – intentional tort – misfeasance on part of police officer – breach of statutory duty – duty of care in investigation and prosecuting offence Civil Liability Act 2002 (NSW), ss 43, 43A LEGISLATION CITED: Police Act 1990 (NSW), ss 7, 150 Uniform Civil Procedure Rules 2005 (NSW), rr 13.4, 14.28, 15.8 Cran v State of New South Wales [2004] NSWCA 92; 62 NSWLR 95 CASES CITED: Darker v Chief Constable of West Midlands Police [2001] 1 AC 435 Tame v New South Wales [2002] HCA 35; 211 CLR 317 Wilson v State of New South Wales [2001] NSWSC 869; 53 NSWLR 407 Li WANG – First Applicant PARTIES: Yu LIU – Second Applicant State of New South Wales - Respondent FILE NUMBER(S): CA 40239/09 COUNSEL: Self-represented – Applicants C F Hodgson - Respondent SOLICITORS: Self-represented – Applicants Crown Solicitor's Office - Respondent LOWER COURT JURISDICTION: Supreme Court LOWER COURT FILE NUMBER(S): SC 20604/08 LOWER COURT JUDICIAL OFFICER: Hulme J LOWER COURT DATE OF DECISION: 2 July 2009 IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40239/09 SC 20604/08 BASTEN JA MACFARLAN JA 14 October 2009 Li WANG v STATE OF NEW SOUTH WALES Judgment 1 JUDGMENT of THE COURT delivered by BASTEN JA: These proceedings are brought in two names, the first applicant being Ms Li Wang and the second Mr Yu Liu. Mr Liu is the husband of Ms Wang and appeared for her with leave today. In an affidavit dated 18 December 2008 he treated her as "the plaintiff". In the statement of claim, Ms Wang is named as the first plaintiff. In the statement of claim, filed on 29 December 2008, relief is sought for injuries, loss and damage suffered by "the plaintiff". For the purpose of the present reasons, Ms Wang will be treated as "the plaintiff", who asserts a claim for deterioration in her "medical condition" as a result of the actions of officers in the New South Wales Police Force. 2 Mr Liu told us this morning that the claim extends to damages sought on his behalf, but it is not necessary to consider that aspect of the claim further at the present. Mr Liu is also a tutor for Ms Wang. 3 The allegations in the statement of claim commence with an incident which occurred on 10 January 2004, alleging that the plaintiff was physically and verbally assaulted in her home by her landlord: par 3. The police were contacted, but allegedly did not attend: par 4. That inference was not expressly pleaded: rather, it was alleged that Senior Constable Kennedy was "assigned to the case" and did not attend "as he was supposed to". 4 The plaintiff alleged that she made further reports of the assault at Parramatta Police Station on two subsequent occasions, namely 12 and 13 January 2004. She appears to have met Senior Constable Kennedy on one or both of those occasions, but obtained no assistance, but rather was insulted, refused the services of an interpreter and deceived into signing an untrue statement: par 5. 5 Paragraph 6 alleged that on "14 January 2004, 2:00am to 3:00am the plaintiff made a complaint against Senior Constable Kennedy to Inspector Muir". 6 It does not appear to be suggested that nothing was done by police in relation to the assault allegation: rather, there appear to have been proceedings, presumably in a Local Court, which were dismissed on 11 June 2004 after Senior Constable Kennedy had "[d]eceived the presiding Judge into believing that the plaintiff did not care to attend the hearing": par 9. 7 There were further allegations concerning a document entitled "Statement of Liu" which was said to be a forgery, but presumably purported to be a statement taken by police. Other allegations were made concerning the steps taken by various officers of the police force in respect of the investigation commenced at the plaintiff's instigation. Paragraph 13 of the statement of claim was in the following terms: "In the past four year, the NSW Police Officers' actions continuously harmed the plaintiff, causing the plaintiff's psychological conditions to gradually worsen." The injury was said to be caused by "a series of abusive treatment": par 14. 8 On 20 March 2009 a defence was filed by the State, which claimed that the whole of the statement of claim was embarrassing and was difficult to plead to. 9 As foreshadowed in the defence, on 1 March 2009 the State filed a notice of motion seeking to have the statement of claim "dismissed generally" pursuant to r 13.4(b) of the Uniform Civil Procedure Rules 2005 (NSW) ("the UCPR"). In the alternative, the State sought to have the statement of claim struck out pursuant to r 14.28 (as a pleading which disclosed no reasonable cause of action or was embarrassing) or because the causes of action were statute barred. 10 The State's notice of motion came before Hulme J in the Common Law Division on 2 July of this year. His Honour ordered that the statement of claim be dismissed, presumably meaning that the proceedings be dismissed generally. It may be inferred from the reasons that he did so on the basis that no reasonable cause of action was disclosed: r 13.4(1)(b). 11 His Honour noted that the claim was "for aggravated damages for personal injury for breach of statutory duty": par 1. He noted the purported reliance upon ss 43(1) and 43A(1) of the Civil Liability Act 2002 (NSW) and stated, correctly, that while it was understandable that the terms of the provisions might be thought to give rise to a duty, those sections were in fact designed to limit the circumstances in which civil liability would arise under the general law. 12 The statement of claim also referred, unnecessarily, to UCPR r 15.8, which requires that a claim for "aggravated compensatory damages" must be fully pleaded. 13 Finally, the statement of claim referred to s 7(a), (b), (c) and (h) and s 150(a) and (b) of the Police Act 1990 (NSW). Section 7 imposes a general obligation on each member of the NSW Police Force to uphold the rule of law and otherwise act in a manner which accords with the various values set out in that provision. Section 150 is in different mode and involves procedures to be followed by the Commissioner in investigating a complaint about police conduct. In particular the paragraphs referred to require that the Commissioner must, if practicable, consult with the complainant before deciding what action to take and must provide the Ombudsman with appropriate documents and advice as to the outcome of the investigation. 14 Hulme J correctly noted that breach of any of these obligations could not give rise to a claim for damages in civil proceedings by someone claiming to have suffered injury as a result of such breach. 15 Nevertheless, the statement of claim does not appear to have been limited to a cause of action for breach of the statutory provisions. Although it followed the form of proceedings originally commenced in the District Court by solicitors then acting for the plaintiff, it is appropriate, as the State accepts, to read the document as a set of factual allegations which could give rise to alternative causes of action. That his Honour so treated the matter is implicit in his reliance upon three decisions which relate to whether or not an action for negligence can arise under the general law in respect of the exercise by police of their investigative functions: see Tame v New South Wales [2002] HCA 35; 211 CLR 317; Wilson v State of New South Wales [2001] NSWSC 869; 53 NSWLR 407; Cran v State of New South Wales [2004] NSWCA 92; 62 NSWLR 95. His Honour noted that the plaintiff's case "is not in its terms confined to an action for negligence" accepting, by implication that those cases were so confined. The alternative approach which his Honour then considered was the claim based on breach of statutory duty. 16 The State says that the matter was argued before his Honour on the two bases noted above. With respect to those matters, an appeal would have no reasonable prospects of success. However, it is not clear that the statement of claim should be treated as so limited. 17 The statement of claim identifies a number of actions on the part of Senior Constable Kennedy, said to have been undertaken intentionally, which could involve deliberate attempts to pervert the course of justice. Further allegations suggest deliberate attempts by other officers to thwart the internal investigation of the plaintiff's complaint in relation to Senior Constable Kennedy's actions. 18 There is a clear distinction between the availability of a cause of action in negligence and a claim based on an intentional tort, in respect of the liability of the State for actions of police officers: Darker v Chief Constable of West Midlands Police [2001] 1 AC 435. Further, a distinction may need to be drawn between the conduct of police in carrying out prosecutorial functions and those involving administrative or investigative functions: see Cran at [63] (Santow JA) and at [81] (Ipp JA) (McColl JA agreeing with both). The State also relies upon the immunity from civil action in respect of functions with respect to court proceedings. This matter may be addressed as the State intends by a notice of contention on an appeal but it was not addressed below. 19 The statement of claim may well be deficient in a number of respects in seeking to identify facts giving rise to a cause of action for an intentional tort. However, if such a cause of action were available and could reasonably be discerned as underlying the pleading in its present form, the appropriate course might well be to strike out the pleading, with leave to replead, rather than dismissing the proceedings generally. 20 The State has put on a notice of contention seeking to uphold the judgment below, curiously, in part on grounds upon which his Honour did rely, but also on other grounds. Some of those grounds, relating to the nature of the pleading, may well give rise to an order of the kind referred to above, striking out the pleading but not dismissing the proceedings generally. The State also seeks to uphold the judgment on the basis that the proceedings were commenced out of time. That contention may, however, depend upon the relevant cause of action. It would also depend upon whether the relevant limitation period could be extended. It may be that the State would ultimately succeed on such arguments, as in respect of the immunity argument, but these matters were not addressed below and were not the subject of any finding by the trial judge. They would not stand in the way of a grant of leave to appeal from the orders made in the Common Law Division. 21 For these reasons, it is appropriate that the applicant have leave to appeal. The costs of the application should be costs in the appeal. 22 The orders of the Court are: 1. Grant the applicants leave to appeal. 2. Costs of the application for leave to be costs in the appeal. 3. Applicant to file and serve a notice of appeal in proper form. 4. Refer the applicant to the Registrar for referral to a lawyer on the Pro Bono Panel for advice and assistance in preparing for the appeal and, if thought appropriate, for representation at the hearing of the appeal. 5. Extend time for filing and service of the Notice of Appeal to 14 December 2009. 6. Liberty to each party to apply to the Registrar for further directions on 3 days notice. 7. Direct that the respondent to the proceedings be the "State of New South Wales". ********** 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.