Supreme Court New South Wales Medium Neutral Citation: Bauskis v Thomson [2011] NSWSC 27 Hearing dates: 7 February 2011 Decision date: 07 February 2011 Jurisdiction: Common Law 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 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: Self-represented (Plaintiff) Mr Gaigios (1st to 5th Defendants) Solicitors: Self-represented (Plaintiff) I.V. Knight, Crown Solicitor (1st to 5th Defendants) File Number(s): 2010/361646 Judgment Ex tempore 1On 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. 2The 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. 3The 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. 4Today, 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. 5Mr 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. 6He 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. 7Regrettably, 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. 8Procedures 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 ". 9Section 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: "(3) A party to civil proceedings is under a duty to assist the court to further the overriding purpose and, to that effect, to participate in the processes of the court and to comply with the directions and orders of the court." 10The 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. 11In particular, sub-section (3) of s 9B is in the following terms: "(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". 12This exception follows on from sub-section (2) of s 9B which is in the following terms: "(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 a claim against the Crown". 13The 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 ". 14This 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: "As there has been no denial of vicarious liability by the fifth defendant at this stage, it is inappropriate for the police officers to be named as the defendants in these proceedings". 15On 9 December 2010 the Crown Solicitor's Office again wrote to Mr Bauskis a letter which included the following: "Ms Koch informed the Registrar that the fifth defendant's position remains that the first to fourth defendants, as serving police officers, should be removed as named parties. I confirm that the fifth defendant accepts vicarious liability for all name[d] officers." 16The 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. 17I 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. 18In 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. 19The 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. 20Rule 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. 21Rule 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. 22Sub-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. 23The 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. 24In 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. 25A 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: 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. ********** 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: 10 February 2011