District Court New South Wales Medium Neutral Citation: Dedula v State of New South Wales [2017] NSWDC 104 Hearing dates: 9, 10 and 11 May 2017 Date of orders: 12 May 2017 Decision date: 12 May 2017 Jurisdiction: Civil Before: P Taylor SC DCJ Decision: (1) Leave to amend the defence refused. (2) Defendant's notice of motion filed 10 May 2017 dismissed. Catchwords: PRACTICE AND PROCEDURE – application to amend defence – application to strike out parts of statement of claim – issue estoppel – earlier criminal proceedings – earlier apprehended violence order Legislation Cited: Civil Liability Act 2002, s 54 Crimes (Domestic and Personal Violence) Act 2007, s 16 Law Reform (Vicarious Liability) Act 1983, s 9B Cases Cited: Blair v Curran (1939) 62 CLR 464 Cassegrain v Gerard Cassegrain & Co Pty Limited [2013] NSWCA 454 State of New South Wales v Williams [2014] NSWCA 177 Category: Procedural and other rulings Parties: Wallace Leon Dedula (plaintiff) State of New South Wales (defendant) Representation: Counsel: Mr J Sheller (plaintiff) Mr P Menzies QC and Ms P McEniery (defendant) Solicitors: Shad Partners (plaintiff) Crown Solicitor's Office (defendant) File Number(s): 2013/245294 Publication restriction: None Judgment A. Introduction 1. Wallace Dedula was arrested and charged with assaults and other offences. Ultimately the charges were either dismissed or withdrawn. He sues the State of New South Wales ("the State") for wrongful arrest and malicious prosecution. 2. On the first day of trial, the State applied to amend its defence to plead an issue estoppel and strike out those paragraphs of the Amended Statement of Claim which assert a claim contrary to the alleged estoppel. B. Issues 1. The alleged issue estoppel arises out of the decision of the magistrate in respect of the assault charges, where the charges were dismissed but an apprehended violence order ("AVO") was made. The issues in the application for amendment principally concern the futility or otherwise of the proposed amendment. They are: 1. whether the form of the pleading of the issue estoppel is defective in appropriately identifying the issue; 2. whether the required identity of the parties in the two proceedings (see State of New South Wales v Williams [2014] NSWCA 177 at [48]) is reasonably arguable; 3. whether the required identity of issue in the two proceedings (Williams at [48]) is reasonably arguable; and 4. whether the decision by the magistrate is sufficiently fundamental or essential to give rise to an issue estoppel in accordance with Blair v Curran (1939) 62 CLR 464 at 531-532. 1. Also, in respect of the strike out application, if the amendment is granted, issues (2), (3) and (4) arise for determination on a final basis. The fifth issue is whether it is appropriate to consider the strike out motion in the course of the trial. If it is, the sixth issue is whether the requirements of identity of parties, identity of issues and a fundamental issue are so clear that the contrary is not reasonably arguable. C. Background 1. The State alleges that the decision of the magistrate creates an issue estoppel in respect of some of the charges that are referred to in the sections of the Amended Statement of Claim titled, "THE FIRST ARREST/FALSE IMPRISONMENT" and "FIRST MALICIOUS PROSECUTION". Adopting this terminology, I will refer to these charges as the "first charges". 2. The first charges are fourfold: two charges on 3 November 2010 ("the contemporaneous charges") that arise out of an alleged common assault involving domestic violence and an alleged stalk or intimidate with intent in October and November 2010; and two other two charges ("the historical charges") that relate to two counts of alleged assault occasioning actual bodily harm in October 2007 and April 2009. The complainant in each case was Mr Dedula's former wife, Shane Kippax. 3. Senior Constable Lennon and another police officer arrested Mr Dedula on the contemporaneous charges. All the first charges came before Magistrate Holmes for final hearing on 20 May 2011. 4. Prior to the trial before the magistrate, a Provisional Ex Parte Apprehended Domestic Violence Order was made against Mr Dedula for the protection of Ms Kippax and her daughter. Officer Lennon was the applicant for this provisional order and it might be inferred that he remained the applicant for the final AVO. That application for a final AVO was also before the magistrate for determination on 20 May 2011. 5. The extract of Magistrate Holmes' decision noted that "by consent…both matters [that is, the charges and the AVO] will be heard together". The facts sheet for the contemporaneous charges and the grounds for the application for the provisional AVO contain a narrative of facts in almost identical terms. Although I do not have before me the application for the final AVO or information as to whether the facts sheet was before the magistrate, it seems reasonable to infer on this application, because of the coincidence in the facts in the two documents in evidence and because the trial of the assault charges and the AVO application were heard together, that the alleged facts upon which the contemporaneous charges are based are also the alleged facts grounding the application for the AVO. I do not understand Mr Dedula to dispute this inference. 6. The transcript of both the trial and the magistrate's decision were in evidence. The State indicated that it would tender the exhibits at the trial, although that was not done. Apart from some photos of Ms Kippax and a medical report, no exhibits in the proceedings (not tendered as exhibits on the application) were referred to in submissions, so I have assumed that the exhibits before the magistrate not tendered on the application were not regarded as relevant to the application. 7. In the course of his decision, the magistrate noted the differing standards of proof applicable to the criminal proceedings arising from the contemporaneous charges and to the AVO. He referred to the four incidents that were the basis of the four charges, the record of interview of Mr Dedula and the evidence of Ms Kippax. The magistrate referred to the manner in which the witnesses gave evidence. He said: "I found the defence witnesses that were called were mainly compliant witnesses. I could not accept their evidence at all. I found them to be witnesses that gave their evidence in a dutiful and convenient manner and I just could not accept their evidence. In relation to the prosecution witnesses, I accept the evidence of the police and their investigations. They have acted appropriately throughout in relation to their obligations to bring these matters before the court. In relation to the other prosecution witnesses their evidence did not take the matters much further and again the court needs to warn itself in relation to their evidence. In relation to the main prosecution witness, the alleged victim, she gave fairly clear evidence. She gave her evidence in a non-nonsense manner… In relation to the defendant, he came across as a brutish, dominant, commanding individual. He is a man that was a very assertive witness. He was combative in cross-examination. He could be described by his manner as a standover man." 1. The magistrate warned himself about the need for care in evaluating the evidence of Mr Dedula's ex-wife, and concluded: "After considering all of the evidence and after warning myself I find that I have a very serious suspicion but I AM NOT SATISFIED BEYOND A REASONABLE DOUBT AND ACCORDING THE DEFENDANT IS ACQUITTED ON ALL CHARGES. NOW IN RELATION TO THE AVO, I HAVE A DIFFERENT STANDARD OF PROOF AND I AM SATISFIED THAT AN ORDER OUGHT TO BE MADE." 1. The exact form of the orders made by the magistrate is also not in evidence. Some of the orders can be discerned from the provisional AVO and from the extract of the magistrate's decision. D. The form of the pleading 1. The proposed Amended Defence to Amended Statement of Claim refers to [4] of the Amended Statement of Claim. That paragraph pleads the existence of the contemporaneous charges and the arrest by Officer Lennon, matters which are admitted in the defence. The proposed defence continues: "4. Further as to paragraph 4 of the Amended Statement of Claim, the defendant pleads that the plaintiff is estopped from asserting that the facts alleged in the particulars of charges referred to in paragraph 4 of the Amended Statement of Claim are false for the reason that: (i) on 20 May 2011 Magistrate Holmes in proceedings R v Leon Wallace Dedula found that an ex parte provisional apprehended violence order made on 3 November 2010 upon the application of Senior Constable Patrick Lennon against the plaintiff no. 1115483, which asserted that:… [the factual matters the subject of the AVO and the contemporaneous charges], be made as a final apprehended violence order." 1. The paragraph numbered 19 in the proposed defence ([17] in the existing defence) pleads: "19. Paragraphs 17 and 18 are admitted. Further as to paragraph 18, the defendant pleads that whilst the plaintiff was acquitted of the criminal charge, orders were made by the court on the same date pursuant to apprehended domestic violence legislation as against the plaintiff, such orders being directed towards protection of the interests and welfare of the victim." 1. The proposed defence adds [20] as follows: "20. By reason of the matters pleaded in paragraphs 4 and 19 above the plaintiff is estopped from asserting that the facts alleged in the particulars of charges referred to in paragraph 4 of the Amended Statement of Claim are false." 1. Thus, it can be seen that the proposed defence asserts that Mr Dedula is estopped from asserting that "the facts alleged in the particulars of the… [contemporaneous] charges…are false". 2. The State does not identify any paragraph in the Amended Statement of Claim where Mr Dedula alleges that the facts (or any of them) alleged in the particulars of charges are false. 3. The State referred to aspects of the particulars provided by Mr Dedula where reference is made to a witness "who would be able to give an exculpatory version of events", that the witness "told Police that the allegations were unfounded" and that evidence of certain witnesses "later was put before the court to exonerate the plaintiff". 4. Whatever may be the breadth of these particulars, they do not seem to me to be capable of constituting an assertion that the entirety of the facts alleged in the particulars of charges are false. Nor is there an element of any tort alleged by Mr Dedula that involves proof of this assertion. Of course in order to succeed on his malicious prosecution claim, Mr Dedula must prove success on the criminal proceedings, in this case relevantly an acquittal, but that is both alleged by Mr Dedula and admitted by the State. 5. The State has relied on s 54 of the Civil Liability Act 2002 in its defence, which relevantly provides: "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. … (3) A serious offence is an offence punishable by imprisonment for 6 months or more. … (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. The Defence to Amended Statement of Claim pleads: "34. As to the alleged first false arrest and consequential false imprisonment that occurred on 3rd November, 2010, as set out in Paragraph 4 of the Amended Statement of Claim, and as to the first malicious prosecution alleged in Paragraphs 17 to 22 inclusive, the defendant relies upon the provisions of Section 54 of the Civil Liability Act NSW 2002 (as amended), and pleads that:- (i) any injury or damage suffered by the plaintiff, the subject of these causes of action, occurred at the time of, or following, conduct on the part of the plaintiff that, on the balance of probabilities, constituted a serious offence; (ii) that conduct contributed materially to the injury or damage, or to the risk of injury or damage suffered by the plaintiff; (iii) in those circumstances referred to (i) and (ii) above, the court is not to award damages in respect of any liability which may be found in favour of the plaintiff pursuant to the provisions of that Section. Particulars of Serious Offence (i) the serious offences relied upon by the defendant in support of its Defence pursuant to the provisions of Section 54 of the Civil Liability Act are:- (a) common assault contrary to the provisions of Section 61 of the Crimes Act, in that the plaintiff did assault Shane Dedula between 11.00 pm and 2.00 am on the 22nd October, 2010 to 23rd October, 2010; (b) the plaintiff did stalk or intimidate Shane Dedula with intent to cause fear, contrary to the provisions of Section 13(1) of the Crimes (Domestic and Personal Violence) Act NSW." 1. For s 54 to apply, it appears that the State must establish that the damage of Mr Dedula was "following" his conduct which, on the balance of probabilities, constitutes a serious offence and that the "conduct contributed materially" to his damages. That Mr Dedula engaged in conduct that constituted a serious offence is thus one of the elements of the s 54 defence. 2. The allegation that Mr Dedula has committed an offence within the meaning of s 54 is taken to be denied because no Reply has been filed admitting it. If the magistrate's finding determines this issue, then pleading an issue estoppel arising out of the finding appears justified. The magistrate's finding would then constitute the irrebuttable means of proof that (on the balance of probabilities) Mr Dedula's conduct constituted an offence and Mr Dedula would be estopped from denying that proposition or leading contrary evidence. Accordingly, subject to the other matters I consider below, while I would not allow the amendment in its current form, I would be disposed to allowing the issue estoppel to be pleaded as part of the s 54 defence. Success on the alleged issue estoppel may mean that other paragraphs of the Amended Statement of Claim cannot be maintained, a matter that the State would be entitled to plead. E. The identity of the parties 1. One element of an issue estoppel is that there is identity of the parties in the two proceedings. The parties to the present proceedings are the State and Mr Dedula. In the earlier criminal proceedings and the AVO, Mr Dedula was clearly a party. The criminal proceedings are variously listed as R v Dedula or the Police v Dedula. The "extract of the magistrate decision" in those proceedings indicate the appearance of "Sergeant Murray for the Informant" but there is no complaint in the Amended Statement of Claim about the conduct of Sergeant Murray. The identity of the informant is not revealed in that exhibit to be Officer Lennon or someone else. 2. I have inferred that Officer Lennon is the applicant in the application for the AVO. Since it appears that the State relies on the finding in the AVO proceedings for the issue estoppel, rather than the criminal proceedings (because only in the former is there a favourable finding, on the balance of probabilities), the relevant question is whether Officer Lennon is properly to be regarded as the same party as the Crown in right of New South Wales or the State. The circumstance that the State is or may be vicariously liable for the conduct of Officer Lennon does not of itself make Officer Lennon the State. 3. I think it unlikely that Officer Lennon is to be regarded as the same party as the State for the purposes of issue estoppel. The circumstance that s 9B of the Law Reform (Vicarious Liability) Act 1983 distinguishes between the police officer and the State as a party, precluding action against the former but permitting it against the latter (in s 9B(2), subject to the exception in s 9B(3)), supports that view. 4. I was referred to a decision of Williams where the Court of Appeal dealt with the possibility of an issue estoppel in wrongful imprisonment proceedings. The issue estoppel was said to arise out of earlier criminal proceedings. At [50]-[58], Emmett JA (with whom McFarlane and Simpson JJA agreed) considered the question of identity of parties. His Honour identified a "difficulty" about whether the Director of Public Prosecutions ("DPP)") and the State are identical parties (see [58]) but ultimately found it to be decisive that the "prosecutor" in the initial proceedings was not established to be the police officers engaged in the wrongful arrest (also at [58]). Whilst that finding is not directly analogous to the present situation, it does indicate a level of strictness about the question of identity of parties. If Officer Lennon cannot be distinguished from the State for the purpose of issue estoppel, it is not readily apparent how the (police) prosecutor could be so distinguished, as occurred in Williams. 5. Emmett JA also stated at [51] that "summary criminal prosecutions, such as that commenced in the Local Court…are proceedings between subject and subject and not between subject and Crown or the State". 6. The State conceded that this finding, at least potentially, was contrary to its argument about identity of parties, but distinguished it on the basis of a different statutory regime. The finding seems to be obiter since it was not the distinction between a police officer and the Crown, or the later reference to a possible distinction between the DPP and the Crown, but rather the distinction between the police officer and the prosecutor, another police officer, that appeared to be the essential finding in the decision. 7. Whilst there must be real doubts about whether Officer Lennon, the party in the AVO proceedings, is identical to the State for the purposes of an issue estoppel, this is an application for an amendment. It is sufficient that the point is arguable. I do not think the point is so clear that I would deny the amendment on that ground alone. Mr Dedula did not urge that I should. F. Identity of issues 1. The State asserted that the magistrate, in the AVO proceedings, determined on the balance of probabilities that Mr Dedula's conduct constituted an offence. 2. As indicated earlier, this is one of the elements of the defence pleaded under s 54 of the Civil Liability Act 2002. But did the magistrate make this finding? 3. The crucial findings of the magistrate, for this argument, seem to be that while he was not satisfied beyond reasonable doubt and therefore acquitted the defendant on all charges, "IN RELATION TO THE AVO, I HAVE A DIFFERENT STANDARD OF PROOF AND I AM SATISFIED THAT AN ORDER OUGHT TO BE MADE." 4. As the magistrate stated earlier in his decision, the civil standard of proof applies in relation to an AVO. I do not think anything more can be read from the magistrate's reference to the "DIFFERENT STANDARD OF PROOF" applicable to an AVO. 5. The magistrate's determination that "I AM SATISFIED THAT AN ORDER OUGHT TO BE MADE", in my view, can mean no more or less than that the preconditions for an AVO have been satisfied, and that any discretion is resolved in favour of granting an AVO. It is not suggested that the exercise of a discretion in favour of an AVO can constitute a finding that Mr Dedula's conduct constituted a criminal offence. But is a criminal offence by Mr Dedula a precondition to the granting of the AVO? 6. The power of the Court to make an AVO is found in s 16 of the Crimes (Domestic and Personal Violence) Act 2007. It provides in subsections (1) and (2): "16 Court may make apprehended domestic violence order (1) A court may, on application, make an apprehended domestic violence order if it is satisfied on the balance of probabilities that a person who has or has had a domestic relationship with another person has reasonable grounds to fear and in fact fears: (a) the commission by the other person of a domestic violence offence against the person, or (b) the engagement of the other person in conduct in which the other person: (i) intimidates the person or a person with whom the person has a domestic relationship, or (ii) stalks the person, being conduct that, in the opinion of the court, is sufficient to warrant the making of the order. (2) Despite subsection (1), it is not necessary for the court to be satisfied that the person for whose protection the order would be made in fact fears that such an offence will be committed, or that such conduct will be engaged in, if: (a) the person is a child, or (b) the person is, in the opinion of the court, suffering from an appreciably below average general intelligence function, or (c) in the opinion of the court: (i) the person has been subjected on more than one occasion to conduct by the defendant amounting to a personal violence offence, and (ii) there is a reasonable likelihood that the defendant may commit a personal violence offence against the person, and (iii) the making of the order is necessary in the circumstances to protect the person from further violence, or (d) the court is satisfied on the balance of probabilities that the person has reasonable grounds to fear the commission of a domestic violence offence against the person." 1. Thus, to simplify, perhaps at the loss of accuracy, an AVO may be granted where there has been a domestic relationship if either: 1. the person has a fear on reasonable grounds of domestic violence (s 16(1)(a)); or 2. the person has a fear on reasonable grounds of sufficiently serious intimidation or stalking (s 16(1)(b)); but an actual subjective fear is not required if the person is a child (s 16(2)(a)), is of low intelligence (s 16(2)(b)), or has been subjected to personal violence which is likely to recur and protection is necessary (s 16(2)(c)), or has reasonable grounds to fear domestic violence (s 16(2)(d)). 1. Accordingly, a finding that an AVO ought to be made, without more, requires satisfaction that, in a domestic relationship: 1. there are reasonable grounds to fear the commission of a domestic violence offence (s 16(1)(a) and s 16(2)(d)); or 2. in respect of an adult, there is a fear, on reasonable grounds, of intimidation or stalking (s 16(1)(b)); or 3. in respect of a child or a person of low intelligence, there are reasonable grounds for a fear of a domestic violence offence, intimidation or stalking (s 16(1) and s 16(2)(a) and (b)); or 4. a personal violence offence has been committed and is it is reasonably likely that it will again be committed and protection is necessary, and there are reasonable grounds for fear of a domestic violence offence or intimidation or stalking (s 16(1) and s 16(2)(c)). 1. It can be seen that of the four possibilities listed, only the last involves a finding that an offence of violence has been committed. The other three bases for an AVO involve only reasonable grounds for a fear (sometimes accompanied by an actual fear) of a (future) domestic violence offence, stalking or intimidation. 2. There is no indication that the magistrate based his decision on the fourth option, and the State did not submit that he did. The factual narrative in the provisional AVO stated that "the victim has felt [frightened] and intimidated by actions of the accused", the magistrate's reference to evidence that the victim "was scared of the defendant", and that Mr Dedula was referred to by the magistrate as a "brutish…combative…standover man" do not at all exclude actual fear, on reasonable grounds, of intimidation (option 2) as a basis for the decision. The circumstance that proof of an offence of violence may, in s 16(2)(c), serve as part of an alternative to proof of fear in s 16(2)(a), and is an exception to the general provision in s 16(1) which is dependent on fear, and that there was no reference by the magistrate to s 16(1) or s 16(2) or to a denial of the element of fear, together tend against a submission that the ruling of the magistrate was based on the existence of a proved domestic violence offence rather than on the existence of fear. 3. Whilst it may have been possible for the magistrate to base his decision, in part, on being satisfied on the balance of probabilities of the past offences of violence, he did not make such a finding expressly, and the nature of the regime in s 16 does not allow it to be concluded that he did so implicitly. The uncertainty cannot be resolved by further evidence, nor by submissions about the internal workings of the magistrate's mind. The extent of his finding is in the extract of his decision, and it does not create the issue estoppel which the State submits. Accordingly, I do not regard the issue estoppel alleged as reasonably arguable and reject the amendment on the ground of futility. G. Essential issue 1. Dixon J in Blair v Curran (1939) 62 CLR 464, at 531-532 held: "A judicial determination directly involving an issue of fact or of law disposes once for all of the issue, so that it cannot afterwards be raised between the same parties or their privies. The estoppel covers only those matters which the prior judgment, decree or order necessarily established as the legal foundation or justification of its conclusion, whether that conclusion is that a money sum be recovered or that the doing of an act be commanded or be restrained or that rights be declared… Nothing but what is legally indispensable to the conclusion is thus finally closed or precluded. In matters of fact the issue-estoppel is confined to those ultimate facts which form the ingredients in the cause of action, that is, the title to the right established." 1. For the reasons which have already been given in respect of identity of issues, a finding of proof of the offences on the balance of probabilities cannot be established to be the legal foundation of the magistrate's decision to make the AVO. It is not "legally indispensable" to that decision because there are other pathways to an AVO besides proof of the offence. It may be different if the magistrate had expressed, or clearly indicated that s 16(2(c) was established, or that the reasonable ground for a fear was the existence of the past offences, so long as the particular offence or offences was or were nominated. Without this, it would remain unclear which, if any, of the four alleged offences were found by the magistrate to be established, and therefore proof of any particular offence could not be essential in the magistrate's findings so as to create the issue estoppel. H. The strike out application 1. As the amendment application has been refused, the consequent application to strike out parts of the Amended Statement of Claim on the basis of the estoppel proposed in the amendment must also fail. If I am wrong in relation to the amendment, I would nevertheless not have been disposed to grant the strike out relief because of the real uncertainty that remains on the question of identity of the parties, because of the matters that caused me to reject the arguability of the proposed issue estoppel and because of the question of whether issue estoppel may be subject to any exceptions (see e.g. Cassegrain v Gerard Cassegrain & Co Pty Limited [2013] NSWCA 454 at [94]-[98]). I. Orders 1. Accordingly, the orders of the Court are: 1. Leave to amend the defence refused. 2. Defendant's notice of motion filed 10 May 2017 dismissed. ********** 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: 15 May 2017