Pi v State of New South Wales [2014] NSWSC 1360

Supreme Court New South Wales

Medium Neutral Citation: Pi v State of New South Wales [2014] NSWSC 1360 Hearing dates: 01.10.2014 Decision date: 01 October 2014 Jurisdiction: Common Law Before: Campbell J Decision: See paragraph 16 Catchwords: PROCEDURE - civil - strike out statement of claim; application to - where statement of claim not in conformity with the rules - referral of self-represented litigant to pro bono legal adviser for the purpose of redrafting pleadings Legislation Cited: Civil Liability Act 2002 (NSW) Category: Interlocutory applications Parties: Guang Hua Pi (Plaintiff) State of New South Wales (Defendant) Representation: Plaintiff in person M Hutchings (Defendant) Crown Solicitors (Defendant) File Number(s): 2014/00003768

EX TEMPORE Judgment (REVISED) 1This matter has come before me today, in my capacity as the Common Law Duty Judge, to consider a notice of motion filed by the plaintiff, Mr Pi, who is self-represented. The motion seeks leave to file an amended statement of claim and further amended particulars. Part of the amended statement of claim is that Mr Pi wishes to plead a case for damage for damage for nervous shock on behalf of his daughter, and he wants to be appointed as tutor for his daughter. 2Mr Pi has appeared before me yesterday and today, with the assistance of an accredited professional interpreter. Mr Hutchings of counsel appears for the defendant, the State of New South Wales. 3In brief, Mr Pi's statement of claim relates to events which occurred on 12 January 2011 and their consequences. Effectively, he is suing the State of New South Wales - at my suggestion yesterday - or in substitution for the Campsie Police Local Area Command and three named police officers. As I mentioned to him yesterday and again today, there are difficulties with naming any defendant other than the State of New South Wales, having regard to the provisions of the Law Reform (Miscellaneous Provisions) (Vicarious Liability) Act 1983. 4Mr Hutchings of counsel informs me that although, because of the objections the State maintains to the form of the pleadings, he is not in a position formally to announce that vicarious liability is extended to the police officers involved, it is certainly his understanding that if Mr Pi were able to put his pleadings in good order, such an acknowledgment could be made as envisaged by, as I understand them, the provisions of ss 9B, C and D of the 1983 act. 5In my discussion with Mr Pi today, it seems clear to me that the claims he wishes to advance relate essentially to wrongful arrest on 12 January 2011. He says he was the victim - not the perpetrator - of any assault that occurred that day, and malicious prosecution arising out of that arrest both in terms of the unsuccessful prosecution brought against him for assault in the Burwood Local Court and the unsuccessful proceedings in respect of an apprehended violence order brought against him which were ultimately, I think, dismissed in the District Court of New South Wales. 6However, he also frames an action in defamation which, doing the best I can from reading the statement of claim, seems to relate to the preparation - and this is a very potted summary - of the police documents and brief to be utilised in relation to those prosecutions. It is obvious that this claim is likely to run into insurmountable legal obstacles, given the defence of absolute immunity, or privilege, likely to arise in respect of the police officers in their capacity as witnesses for the prosecution. 7Moreover, the claim sought to be advanced on behalf of his daughter is one for nervous shock, arising out of how Mr Pi was treated by the police; that is to say, it is appurtenant to his claim for wrongful arrest and malicious prosecution. Again, without giving any indication or making any decision, it did does seem to me that there are conceptual difficulties about a nervous shock claim based upon that type of "injury" to Mr Pi, having regard to the provisions of Pt 3 of the Civil Liability Act 2002. 8I must say that Mr Pi has made a commendably serious attempt to explain his case in his further amended statement of claim, and also in the particulars he has previously provided which are on the court file, which although somewhat discursive, set out in great detail - including explanatory diagrams - what his case is. From those documents one can make out, as I have said, the claims of wrongful arrest and malicious prosecution. 9But as Mr Hutchings has pointed out in his argument, there are significant and serious technical flaws in the way each of those claims is pleaded. They are somewhat confused, and some of the concepts which might inform each of those torts separately have become impermissibly intermingled in the averments contained in the statement of claim, and this makes is difficult, if not impossible, for the State of New South Wales properly to plead to the statement of claim in accordance with the rules. 10I was informed by Mr Hutchings during the course of argument that at one stage Registrar Bradford suggested a referral to a barrister or solicitor on the court's legal assistance panel. Mr Hutchings' recollection at the time is that Mr Pi was resistant to that. I have discussed that matter with Mr Pi today, and although he told me he had some legal help, or spoke to a lawyer about, the statement of claim, any resistance he previously had to receiving that kind of assistance under the Rules is no longer operative. 11I am satisfied that it is in the interests of the administration of justice to refer Mr Pi to the Registrar for referral to a barrister on the pro bono panel for legal assistance. Given Mr Pi's previous desire to represent himself, and given the scarcity of these resources, I would not extend that referral to any lawyer prepared to accept the referral continuing to be involved in the case unless Mr Pi and that lawyer were each of that view. 12However, I think it would be in the interests of the administration of justice if a barrister, with experience in Common Law actions involving intentional torts, assisted in settling the claims for wrongful arrest and malicious prosecution, according to Mr Pi's instructions. It would also be of assistance if advice could be given to Mr Pi about whether the defamation claim and the daughter's proposed claim for nervous shock can be maintained. If those claims are to be maintained in the statement of claim, it would assist if the barrister would also settle the statement of claim in that regard. 13I did remark to Mr Pi, following the assistance I received from Mr Hutchings, that much of what is said in the defamation claim in any event might relate to material facts that could be ventilated in the malicious prosecution claim. But, of course, I have an open mind about that and I should not be taken as expressing one view or the other about it. 14I have taken into account, under r 7.36 of the Uniform Civil Procedure Rules 2005, that Mr Pi is a person with significant disabilities. He has appeared before me with a cervical collar and a walking frame. He is, because of his disabilities, I infer, unemployed. He lives in rented accommodation, has no other investment properties and has no assets at all which could be used to pay for a lawyer's advice. I am well aware of the constraints under which the Legal Aid Commission operates in the present age and, based upon my experience, that it is extremely unlikely that legal aid would be extended to Mr Pi to bring a civil action, having regard to the reduced means available for legal aid to fund indigent criminal defendants. 15The technicalities of the torts which might be available to Mr Pi are such that the pleadings are likely to be of some complexity, and for that reason a professional hand is required. Without making any judgment about the matter, I have also taken into account the consideration that Mr Pi's claims do not seem hopeless, frivolous or vexatious. I have also satisfied myself that he has not been referred for legal assistance under this scheme at all before, let alone in the last three years. 16For these reasons, I make the following order: (1)Mr Pi is referred to the Registrar for referral to a barrister with Common Law experience on the pro bono panel for legal assistance; (2)Unless the barrister and Mr Pi agree to the contrary, the assistance is in relation to the following matters: (a)advice in relation to whether the claims for defamation and for nervous shock on behalf of Mr Pi's daughter can be legally maintained, and (b)settling an amended statement of claim in respect of the causes of action that can be maintained consistently with the barrister's professional obligations and on the instructions of Mr Pi; (3)I adjourn the notice of motion filed on 26 August 2014, and the proceedings generally, for directions before the Registrar at 9 am on 1 December 2014.