Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Ritson v Myers [2013] NSWCA 176 Hearing dates: 7 June 2013 Decision date: 07 June 2013 Before: Macfarlan JA at [1] and [19]; Gleeson JA at [2] Decision: The application for leave to appeal be dismissed with costs. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Catchwords: APPEAL - leave to appeal - s 556(2) Crimes Act - whether judge erred in determining that s 556(2) barred private prosecution of criminal charges Legislation Cited: Crimes Act 1900 Crimes (Appeal and Review) Act 2001 Law Reform (Vicarious Liability) Act 1983 Cases Cited: House v The King (1936) 55 CLR 499 Knezevic v Markovic (1985) 5 FCR 219 Category: Procedural and other rulings Parties: Brendan Ritson (Applicant) Karen Myers (Respondent) Representation: Counsel: P Barham (Applicant) M Thangaraj SC with B Haverfield (Respondent) Solicitors: Mitchell Lawyers (Applicant) Oates Legal (Respondent) File Number(s): 2012/277750 Publication restriction: No Decision under appeal Jurisdiction: 9111 Citation: Ritson v Myers [2012] NSWSC 1504 Date of Decision: 2012-09-03 00:00:00 Before: Latham J File Number(s): 2011/356598 Judgment 1MACFARLAN JA: I will ask Gleeson JA to give the first judgment. 2GLEESON JA: This is an application by Mr Ritson, the plaintiff in the Court below, for leave to appeal against a decision of Latham J given on 3 September 2012 ([2012] NSWSC 1504) dismissing an appeal against a decision of Magistrate Wynhausen of 7 October 2011. The magistrate dismissed proceedings brought by Mr Ritson against Ms Myers by way of private prosecution in the Local Court of New South Wales. 3On this application for leave to appeal, the plaintiff contends that both the magistrate and the learned Judge erred in determining that the defendant could rely on s 556(2) of the Crimes Act 1900. Section 556(2) was held to be a bar to the private prosecution of criminal charges by Mr Ritson against Ms Myers pursuant to s 60(1) and s 61 of the Crimes Act, and hence the criminal proceedings should be dismissed. 4The plaintiff further contends that the alternative discretionary basis on which Latham J would have dismissed the appeal under the power conferred by s 59(2) of the Crimes (Appeal and Review) Act 2001 was also erroneous, for two reasons. First, contrary to the finding of Latham J, the incident referred to below was not a trivial matter. Secondly, that her Honour failed to give any weight to the fact that Ms Myers will avoid any liability whatsoever if the criminal proceedings are not allowed to continue against her. 5The circumstances in which the bar to the criminal proceedings was held to apply are briefly as follows. Mr Ritson successfully sued the State of New South Wales in proceedings in the District Court of New South Wales for damages for the tort of assault arising from certain conduct of Ms Myers. At the time of the conduct, both Mr Ritson and Ms Myers were police officers. 6The conduct involved Ms Myers throwing an empty pizza box towards Mr Ritson across the front room of the Surry Hills police station at about 9.30pm on 19 July 2006. Mr Ritson raised both his hands in front of his face for protection from the box. The pizza box travelled approximately 3 metres across the room hitting the wall behind Mr Ritson and fell to the ground. Ms Myers walked over towards Mr Ritson, stopped next to him and picked up the pizza box from the floor, turned around and walked away from Mr Ritson and over to a bin near the middle of the room and placed the pizza box on top of other rubbish inside the bin. Section 556(2) Crimes Act 7Mr Ritson's claim for damages for the tort allegedly committed by Ms Myers as a police officer fell within the definition of a "police tort claim" in s 9B(1) of the Law Reform (Vicarious Liability) Act 1983. As such, and subject to an exception which did not apply, Mr Ritson was precluded from commencing any proceedings making a police tort claim against Ms Myers. Instead Mr Ritson brought his claim against the State of New South Wales, as required by s 9B(2) of the Law Reform (Vicarious Liability) Act. The State of New South Wales did not deny that it would be vicariously liable for the alleged police tort claim committed by Ms Myers, and Ms Myers was not joined as a party to the District Court proceedings. In those proceedings, Mr Ritson obtained a judgment for damages against the State of New South Wales of $2050, comprising $50 compensatory damages, $750 aggravated damages and $1250 in exemplary damages, plus his costs. 8The plaintiff's essential complaint is that the criminal proceedings were not barred by the operation of s 556(2) of the Crimes Act. The plaintiff contends that on the proper construction of that provision, Ms Myers did not satisfy the description of "any person against whom civil proceedings had been taken" as she was not a party to the District Court proceedings. Rather, the defendant was the State of New South Wales. 9The plaintiff abandoned his further contention contained in his written submissions, that the subsequent criminal proceedings by Mr Ritson against Ms Myers were not for "the same cause" as the civil proceedings against the State within the meaning of s 556(2) of the Crimes Act. 10On the construction issue, her Honour found that the material facts giving rise to the District Court civil proceedings and the prospective private prosecution were the same, that is, the physical act of throwing a pizza box. Her Honour also found that the civil proceedings were taken against Ms Myers in the sense that the pleadings were directed to her allegedly tortious conduct and that the State of New South Wales stood in her shoes as the defendant only by virtue of the operation of statute. Her Honour concluded that the phrase "person against whom civil proceedings have been taken" in s 556(2) of the Crimes Act ought not be interpreted as synonymous with "a party to civil proceedings". 11Although not the only factor relevant, an essential prerequisite of a grant of leave to appeal is that the Court be persuaded that the decision appealed from is attended with sufficient doubt to warrant its reconsideration on appeal. The submissions that have been made, both in writing and orally, do not make that out, and for that reason the application for leave to appeal should be dismissed. 12I should indicate that I do not consider that the plaintiff has shown an injustice which is reasonably clear, in the sense of going beyond what is merely arguable. The intent of s 556(2) of the Crimes Act is to prevent multiplicity of actions and to put the person aggrieved by the conduct constituting an offence to his or her election to institute either civil or criminal proceedings (see Knezevic v Markovic (1985) 5 FCR 219 at 231). Discretionary issue 13In this case, Mr Ritson has successfully sued the State of New South Wales and recovered damages of $2050 and costs in respect of the defendant's conduct. By reason of s 9B(2) of the Law Reform (Vicarious Liability) Act, those civil proceedings were required to be brought against the State of New South Wales and could not be brought against Ms Myers personally, as the State accepted that it was vicariously liability for the conduct of Ms Myers. Mr Ritson then instituted criminal proceedings against Ms Myers in respect of that same conduct. Her Honour considered that, if her analysis regarding the application of s 556(2) of the Crimes Act was incorrect, it would be appropriate to exercise the Court's discretionary power under s 59(2) of the Crimes (Appeal and Review) Act to dismiss the appeal. 14In respect of this aspect of the judgment, the plaintiff must establish error in the House v The King (1936) 55 CLR 499 sense. No error of principle has been identified. Rather, complaint is made that Latham J was wrong to characterise the incident as a trivial matter, and failed to give any weight to the fact that Ms Myers will avoid any liability whatsoever. 15The reasons of Latham J demonstrate that she had regard to the fact that the factual matrix that gave rise to the litigation in the Local Court by way of private prosecution had already been determined in the District Court of New South Wales. In concluding that there was no utility in re-litigating what she considered was a trivial matter, her Honour clearly had in mind the nature and circumstances of the incident complained of, the small amount of damages (including its composition) recovered by Mr Ritson in the civil proceedings, and the fact that Mr Ritson's recovery was against the State of New South Wales rather than Ms Myers personally. Her Honour did not fail to take into account that the State of New South Wales bore the damages liability for Ms Myers' conduct, or the consequence of the barring effect of s 556(2). 16Her Honour also took into account, as she was entitled to, the impact of remittal of the matter to the Local Court, and considered that it would be a scandalous waste of scarce court time and resources to do so. That view was reasonably open to her Honour. 17I do not consider that Latham J misunderstood the facts or failed to take into account relevant matters as contended by the plaintiff, in arriving at her alternative conclusion as to the discretionary basis on which the appeal should be dismissed, if her construction of s 556(2) of the Crimes Act was wrong. 18In the circumstances, the orders I propose are that the application for leave to appeal be dismissed with costs. 19MACFARLAN JA: I agree. The order of the Court is that the application for leave to appeal be dismissed with costs. ********** 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: 13 June 2013