Rook v State of New South Wales [2014] NSWDC 304

District Court New South Wales

Medium Neutral Citation: Rook v State of New South Wales [2014] NSWDC 304 Hearing dates: 5 December 2014 Decision date: 05 December 2014 Jurisdiction: Civil Before: P Taylor SC DCJ Decision: (1) Dismiss the plaintiff's notice of motion filed 26 November 2014. (2) Order the plaintiff pay the defendant's costs of the notice of motion. Catchwords: PROCEDURE – strike out application - malicious prosecution – defence repeats prosecution allegations – relevant to proof of "serious offence" – reasonable and probable cause – need for caution Legislation Cited: Civil Liability Act 2002, s 51, s 54 Evidence Act 1995, s 131 Road Transport (Safety and Traffic Management) Act 1999, s 17 Uniform Civil Procedure Rules 2005, r 14.28, r 20.26 Cases Cited: Beckett v New South Wales [2013] HCA 17 Deputy Commissioner of Taxation v Zammitt [2014] NSWCA 104 Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28 Category: Procedural and other rulings Parties: David Duncan Rook (plaintiff) State of New South Wales (defendant) Representation: Counsel: Mr L Robison (plaintiff) Mr M Hutchings (defendant)

Solicitors: Marsdens Law Group (plaintiff) Makinson & d'Apice Lawyers (defendant) File Number(s): 2014/158703

Judgment 1. This is an application by the plaintiff, David Rook, to strike out certain paragraphs of the defence filed by the State of New South Wales ("the State"). 2. On about 5 June 2011 Mr Rook drove his motor vehicle. He was subsequently subjected to a breath test, arrested, imprisoned and prosecuted for the alleged offences of driving with a mid range concentration of alcohol, disobeying a request or signal to stop for a breath test, and not stopping a vehicle when he was directed to do so. Those charges or sequences were dismissed in each case, although in respect of the third sequence the offence was held to have been proved, but the sequence was dismissed without conviction. 3. The basis of the dismissal of sequences 1 and 2 by the Local Court was asserted to be, and it did not appear to be disputed, that the Local Court was not satisfied that the request to stop for a breath test and the conducting of the test occurred at a location other than at the home of Mr Rook, contrary to s 17 of the Road Transport (Safety and Traffic Management) Act 1999. 4. Mr Rook commenced proceedings for damages for false imprisonment, wrongful arrest, malicious prosecution, assault and battery and detinue of certain of his personal items. Apart from detinue, it appears from the amended statement of claim that the damages for each of the torts include personal injury in the form of "psychological sequelae". 5. Mr Rook pleads that he drove his motor vehicle to his residence. The State, the defendant in these proceedings, denies this, asserting that he drove to the adjacent premises and pleads that he drove whilst having a mid range prescribed content of alcohol. The defence also includes a pleading referring to s 54 of the Civil Liability Act 2002 and alleging that the injuries claimed by Mr Rook, "occurred at the time of or following conduct of [Mr Rook] that on the balance of probabilities constituted a serious offence". 6. Mr Rook claims in the motion and submits before me that these defences, which rely upon Mr Rook parking in the adjacent premises and driving with a mid range prescribed concentration of alcohol, should be struck out because they disclose no reasonable defence, and also because they cause prejudice and delay. Prejudice and delay is said to occur from the need for, or to result from the State having served, a survey identifying the boundary between Mr Rook's residence and the adjacent premises. It is said that as a result Mr Rook would himself need to obtain a survey to meet this defence. 7. There was no evidence before me that would indicate that the contents of the survey were in issue. In any event, I am not satisfied that the need, or the perceived need, to obtain further evidence is properly to be regarded as prejudice and delay under r 14.28(1)(b) of the Uniform Civil Procedure Rules 2005, especially in circumstances where no trial date has been set. 8. In relation to the claim that these paragraphs of the defence disclose no reasonable defence, Mr Rook relies upon the decision of the High Court of Australia in Beckett v New South Wales [2013] HCA 17, where the Court, omitting irrelevant words, states at [2]-[6]: "…the plaintiff's guilt or innocence of the criminal charge is not an issue in the action for malicious prosecution…[for in] summary, the plaintiff must prove four things: (1) the prosecution was initiated by the defendant; (2) the prosecution terminated favourably to the plaintiff; (3) the defendant acted with malice in bringing or maintaining the prosecution; and (4) the prosecution was brought or maintained without reasonable and probable cause…Evidence bearing on the existence of reasonable and probable cause is confined to the material available to the defendant at the time the prosecution was commenced or maintained. …The rationales for the rule evince the concern of the law with the consistency of judicial determinations… The requirement that the prosecution has terminated avoids the possibility of conflict in the decisions of the court trying the criminal charge and the court trying the civil action." 1. In answer to the proposition that Mr Rook's guilt or innocence of the criminal charge is not in issue in the action for malicious prosecution, the State submits that it is not challenging the conviction for malicious prosecution. Rather, it seeks to prove that the prosecution was brought with reasonable and probable cause. The State submits that whether Mr Rook engaged in conduct constituting a serious offence is relevant to the question of damages under s 54 of the Civil Liability Act 2002. 2. Sections 51 and 54 of the Civil Liability Act 2002 provide as follows: "51 Part applies to civil liability for death, injury or property damage (1) This Part applies to civil liability of any kind for personal injury damages (as defined in Part 2) or damage to property. (2) This Part extends to any such liability even if the damages are sought in an action for breach of contract or any other action. (3) This Part does not apply to civil liability that is excluded from the operation of this Part by section 3B." "54 Criminals not to be awarded damages (1) A court is not to award damages in respect of liability to which this Part applies if the court is satisfied that: (a) the death of, or the injury or damage to, the person that is the subject of the proceedings occurred at the time of, or following, conduct of that person that, on the balance of probabilities, constitutes a serious offence, and (b) that conduct contributed materially to the death, injury or damage or to the risk of death, injury or damage. (2) This section does not apply to an award of damages against a defendant if the conduct of the defendant that caused the death, injury or damage concerned constitutes an offence (whether or not a serious offence). Note. Sections 52 and 53 can apply to prevent or limit recovery of damages even though the defendant's conduct constitutes an offence. (3) A serious offence is an offence punishable by imprisonment for 6 months or more. (4) This section does not affect the operation of the Felons (Civil Proceedings) Act 1981. (5) This section operates whether or not a person whose conduct is alleged to constitute an offence has been, will be or is capable of being proceeded against or convicted of any offence concerned." 1. Mr Rook submits that s 54 does not apply because of the rule stated in Beckett. It is submitted that Parliament could not have intended the question of guilt or innocence of the criminal charge to be in issue in damages in circumstances where it is not in issue on the question of liability. Thus, it is submitted, Parliament must have intended for s 54 not to apply to a claim for malicious prosecution. 2. Mr Rook also submits that s 54 must not apply to the claim of wrongful arrest, false imprisonment and assault and battery. 3. In my view, the words of s 51 of the Civil Liability Act 2002 do not justify any such restriction on the applicability of s 54. Section 51 speaks of "civil liability of any kind for personal injury damages". Section 51(2) refers to "any other action". 4. Nor do the restrictions submitted by Mr Rook seem to accord with a fair and reasonable construction of the provision in accordance with authorities such as Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28 and Deputy Commissioner of Taxation v Zammitt [2014] NSWCA 104. There was no related material tendered on this application, such as from Hansard or other places, to indicate that the objective intention of the legislature differed from the plain meaning of the words in s 51 so as to give s 54 a more limited application. 5. Accordingly, I am not persuaded that s 54 should be limited in the way that Mr Rook has advocated. In any event, such a matter is more appropriately to be determined at trial. 6. In my view, the State is entitled by reason of s 54, to ventilate the question of whether, in connection with the event causing injury to Mr Rook, there was conduct by Mr Rook constituting a serious offence that materially contributed to those injuries. Whether any particular conduct constituting a serious offence could be causative of those injuries is a matter best left to the trial judge. 7. Mr Rook also relies on correspondence from the State's solicitor that indicates a desire in the State to prove the guilt of Mr Rook for the offence of having a mid range prescribed content of alcohol whilst driving. The content of correspondence is not generally, and is not in this case, a reason to strike out paragraphs of a defence that the defendant is otherwise entitled to plead. 8. Mr Rook also referred to certain documents headed "without prejudice". The State objected to the admission of these documents. It may be that the documents do not propose "genuine compromise" as required in the offer of compromise provision in Uniform Civil Procedure Rule 20.26. Nevertheless, the correspondence may still fall within s 131 of the Evidence Act 1995. In any event, I do not regard these documents as relevant to whether paragraphs of the defence should be struck out. 9. The central component of Mr Rook's argument seems to be that the State is not entitled to contest the asserted finding of the magistrate that the test for the prescribed content of alcohol occurred at Mr Rook's residence. Leaving aside s 54 of the Civil Liability Act 2002 that finding could only be relevant to a claim for malicious prosecution under the second element stated in Beckett, namely, that the prosecution terminated favourably to Mr Rook. But this element is not in issue, at least insofar as the first two charges are concerned. So far as the pleadings currently disclose, there is no other issue to which the findings of the magistrate are probative. 10. If Mr Rook wishes to allege that there is some fact that cannot be proved by the defence because of the findings of the magistrate, then the proper course is for Mr Rook to file a reply, alleging an estoppel arising from the Local Court decision. 11. Accordingly, there are three reasons why I propose to allow the defence to remain. 12. Firstly, because s 54 of the Civil Liability Act 2002 contemplates a determination of whether a serious offence has been committed, on the balance of probabilities. The pleaded facts relate to this defence. 13. Secondly, it is a matter for the trial judge whether a particular fact can go to prove the elements in issue, such as whether the prosecution was brought with reasonable and probable cause. 14. Thirdly, the basis for striking out paragraphs in a defence needs to be clear, and where matters are potentially arguable, the Court should be cautious in exercising such a power. 15. For those reasons, I: 1. Dismiss the plaintiff's notice of motion filed 26 November 2014. 2. Order the plaintiff pay the defendant's costs of the notice of motion.