Supreme Court New South Wales Medium Neutral Citation: Odeh v State of New South Wales [2019] NSWSC 342 Hearing dates: 1 May, 8 June 2018 Date of orders: 01 April 2019 Decision date: 01 April 2019 Jurisdiction: Common Law Before: Rothman J Decision: (1) Leave to file the proposed Amended Statement of Claim, to which the Notice of Motion refers, is refused; (2) Motion dismissed; (3) Leave is granted to the plaintiff to file, within 28 days of these orders, a further Notice of Motion seeking leave to file an Amended Statement of Claim, that complies with the principles of pleading, and accords with these reasons for judgment; (4) Leave to join the putative third defendant is refused; (5) The plaintiff shall pay the defendants' costs of and incidental to the Motion. Catchwords: PRACTICE AND PROCEDURE – Statement of Claim insufficiently pleaded – proposed Amended Statement of Claim has similar difficulties – leave refused to file – leave granted to try again Cases Cited: A v State of New South Wales (2007) 230 CLR 500; [2007] HCA 10 Clavel v Savage [2013] NSWSC 775 Wilkinson v Downton [1897] 2 QB 57 Williams v Spautz (1992) 174 CLR 509; [1992] HCA 34 Category: Procedural and other rulings Parties: Husam Ali Odeh (Plaintiff/Applicant) State of New South Wales (First Defendant/Respondent) Zina Al-Obiady (Second Defendant/Respondent) Representation: Counsel: T Hall – Solicitor (Plaintiff/Applicant) S T Chrysantou / H Elachkar (First Defendant/Respondent) C Freer (Second Defendant/Respondent) Solicitors: Hall Partners (Plaintiff/Applicant) Crown Solicitor's Office (First Defendant/Respondent) Legal Aid NSW (Second Defendant/Respondent) File Number(s): 2016/00131855 Judgment 1. HIS HONOUR: By order of the Court of Registrar Bradford on 23 February 2018, the applicant filed an Amended Notice of Motion seeking to be permitted to file a proposed Amended Statement of Claim. When the Amended Notice of Motion first came before the Court, as presently constituted, the Amended Statement of Claim had not been filed or served and, by order of the Court, the proposed Amended Statement of Claim was served. The proposed Amended Statement of Claim is Exhibit A in the proceedings. 2. By the time the matter subsequently came before the Court, as presently constituted, on the second occasion, the plaintiff had served 13 versions of the proposed Amended Statement of Claim. When the matter came before the Court, the plaintiff again conceded that further amendments to the Statement of Claim were required. 3. Orders were made by the Court that the final version of the proposed Amended Statement of Claim be filed. After service of the 14th version of the proposed Amended Statement of Claim, the defendant set out its objections to the pleading. 4. The parties conferred in an attempt to narrow the dispute and, following that conference, the plaintiff served the 15th version of the pleading, which abandoned certain allegations and causes of action. The 15th version of the pleading abandoned the conspiracy allegations first raised in the 14th version of the pleading as against the first defendant, but sought to continue the cause of action as against the second defendant and against the proposed third defendant. It also abandoned the negligence claim. That 15th version of the pleading is Exhibit B in the proceedings before the Court currently. 5. The defendant continues to submit that the pleading is defective and so defective that the Court should not allow it to be filed. Objections 1. The State of New South Wales summarises its objections to the pleading in the following manner: "The pleading: (a) still seeks to join the third defendant – who has nothing to do with the allegations against the State of NSW and whose inclusion will result in a waste of time and costs; (b) seeks declarations in relation to the 'Policy' which have no bearing on the plaintiff, including that the 'Policy' is an abuse of process; (c) asserts that the making of complaints to police by the second defendant 'is an abuse of process' in circumstances where no Court process is involved; (d) alleges joint criminal enterprise between the second and third defendants (a separate and distinct claim from any made against the State that is likely to result in a significant waste of time and costs); (e) makes new claims for malicious prosecution in relation to the fifth and sixth arrests that are deficiently pleaded." 1. On the basis of the foregoing, the State of New South Wales submits that the defects in the proposed Amended Statement of Claim are such that the Court should not allow the pleading to be filed. Further, the State of New South Wales submits that the number of versions of the pleading and the inability of the plaintiff to define the causes of action against the State of New South Wales, and the other defendants, expeditiously should inform the Court's exercise of discretion in determining not to allow the filing of the proposed Amended Statement of Claim. Underlying Facts 1. The facts relevant to the purported cause of action of the plaintiff can be stated shortly. It is unnecessary to summarise all of the dates and times that are said to be relevant. 2. It is sufficient, for present purposes, to summarise the general effect of the facts upon which the plaintiff seeks to rely. The plaintiff and the second defendant were married. There were three children of the marriage. 3. At some stage, the precise date of which is unknown, the plaintiff alleges that the second defendant and the proposed third defendant engaged in an intimate relationship. The intimate relationship commenced during the subsistence of the marriage of the plaintiff and the second defendant and while the proposed third defendant was an employee of the plaintiff. 4. On 15 December 2014, the proposed third defendant assaulted the plaintiff at the Bankstown Shopping Centre. For that assault, the proposed third defendant was convicted in or about June 2015. 5. The plaintiff also alleges that in March 2017, the proposed third defendant photographed the plaintiff whilst the plaintiff was driving his motor vehicle, which photograph was utilised in a manner which will be described shortly. 6. The plaintiff alleges that, on 22 December 2017, the proposed third defendant discharged a firearm in the direction of the plaintiff, while the plaintiff was driving. The plaintiff alleges assault and the suffering of damage being "a heightened level of mental distress" in which the proposed third defendant engaged for that purpose. 7. Apart from the allegations against the proposed third defendant, the plaintiff alleges that the second defendant, who is now married to the proposed third defendant, made statements to the Police in which she alleged that the plaintiff engaged in domestic violence offences in order for the Police to arrest, charge and prosecute the plaintiff. The plaintiff alleges that the photographs to which reference has been made were utilised by the second defendant in supporting her accusations. 8. The plaintiff alleges that the Police arrested and prosecuted the plaintiff, and obtained Apprehended Domestic Violence Orders (hereinafter "ADVOs") against the plaintiff, based on the statements of the second defendant, without obtaining a version of the events from the plaintiff and without any or any proper investigation of the complaint and in so doing acted otherwise than impartially and fairly. 9. Further, the plaintiff alleges that a policy was adopted by Police officers at the relevant Local Area Command to the effect that, in all domestic violence cases, no independent enquiries concerning allegations of domestic violence are undertaken and, instead, proceedings and applications for ADVOs are initiated, based solely on the complaint of the alleged victim. 10. As a consequence of the implementation of the aforesaid policy, based upon the false statements of the second defendant, the plaintiff was the subject of false arrest, suffered damage as a result of malicious prosecution and, it seems, an abuse of process. Causes of action 1. The Court was informed that the causes of action sought to be maintained against one or more of the defendants were: malicious prosecution; abuse of process; and, it seems, in relation to the proposed third defendant, assault. 2. It is almost impossible to discern from the proposed Amended Statement of Claim the cause of action upon which the plaintiff relies. Further, if the causes of action are as indicated by or on behalf of the plaintiff at the hearing, all of the elements of each cause of action have not been alleged. 3. There does not seem to be a claim arising under the cause of action in Wilkinson v Downton [1897] 2 QB 57. There has been some controversy as to whether the tort applies in Australia, as a freestanding cause of action. 4. The foregoing is not intended to suggest that the plaintiff would have available such a cause of action. Nevertheless, the plaintiff does not plead intentional infliction of emotional distress. It would seem, on the face of that which is alleged by the plaintiff, that the tort could not apply to the first defendant (or persons for whom the first defendant has legal liability). Nor does it seem that it is alleged against either the second or proposed third defendant. 5. As to malicious prosecution, there are a number of statements of the elements necessary for a plaintiff to succeed in establishing malicious prosecution. In A v State of New South Wales (2007) 230 CLR 500; [2007] HCA 10 at [1], the High Court described the elements in the following terms: "For a plaintiff to succeed in an action for damages for malicious prosecution the plaintiff must establish: (1) that proceedings of the kind to which the tort applies (generally, … criminal proceedings) were initiated against the plaintiff by the defendant; (2) that the proceedings terminated in favour of the plaintiff; (3) that the defendant, in initiating or maintaining the proceedings acted maliciously; and (4) that the defendant acted without reasonable and probable cause." 1. The High Court in A v State of New South Wales referred to the position of a prosecutor in like circumstances to those that apply to Police officers on whose behalf the State of New South Wales is sued. At [118] of A v State of New South Wales, the High Court said: "[118] Where a prosecutor has no personal knowledge of the facts underlying the charge, but acts on information received, the issue is not whether the plaintiff proves that the state of mind of the prosecutor fell short of a positive persuasion of guilt. As explained earlier in these reasons, it is whether the plaintiff proves that the prosecutor did not honestly form the view that there was a proper case for prosecution, or proves that the prosecutor formed that view on an insufficient basis." 1. The Court, as presently constituted discussed these aspects in Clavel v Savage [2013] NSWSC 775 at [41]-[44], in which the Court said: "[41] The difference between the recitation in Fleming and by the High Court in A v State of New South Wales, supra, rests on two substantial aspects: the High Court contemplates proceedings other than criminal proceedings that may give rise to an action for damages for malicious prosecution; and, secondly, the High Court does not have an element that requires proof of damage. It seems, on the authorities, that proof of damage is an element of collateral abuse of process, but in malicious prosecution damage is presumed. [42] There are other aspects to the foregoing statements of the elements that require explanation. First, the 'institution' of proceedings, in the foregoing elements, includes prosecuting them, instigating them, or, as often described, setting them in motion (if that be different). This requires the defendant to be actively instrumental in procuring the use of the legal process against the plaintiff: Commonwealth Life Assurance Society Ltd v Brain [1935] HCA 30; (1935) 53 CLR 343. [43] Secondly, as may be evident from the foregoing, it is controversial whether malicious prosecution is confined to the institution of criminal proceedings. The tort of malicious prosecution may also apply to certain disciplinary proceedings (Little v Law Institute of Victoria (No 3) [1990] VR 257), courts-martials (Forster v MacDonald (1995) 127 DLR (4th) 185) and certain bankruptcy proceedings (Quartz Hill Consolidated Mining Co v Eyre (1983) 11 QBD 674; QIW Retailers Ltd v Felview Pty Ltd [1989] 2 Qd R 245). See generally the discussion in Gregory v Portsmouth City Council [2000] UKHL 3; [2000] 1 AC 419, discussed by Hoeben J in Kable v State of New South Wales [2010] NSWSC 811. [44] The discriminating feature identifying non-criminal proceedings that may give rise to a claim for malicious prosecution may well be proceedings that, by their very nature, damage the reputation and standing of the person accused, where the result of the judicial process cannot, itself, overcome the damage. Ordinary civil proceedings, even those involving serious allegations, are not in that category, because the judgment of the court is generally seen as overcoming any damage caused by the institution of the proceedings and the allegations therein. That is not true of bankruptcy proceedings, which may have an immediate impact in the business world, well beyond the proceedings themselves. It is also not true of courts-martials or criminal proceedings and proceedings to strike off a legal practitioner (see Little, supra)." 1. The proposed Amended Statement of Claim does not deal with all of the elements and does not make clear how each of the elements applies to the State of New South Wales. This is particularly so in circumstances where the State of New South Wales appears by virtue of its liability for the Police officers and is covered by the statements of the High Court at [118] of A v State of New South Wales, recited above. 2. Insofar as the plaintiff alleges malicious prosecution by the State of New South Wales, the pleadings are insufficient in two ways. First, the pleadings do not allege conduct by the State of New South Wales the totality of which covers each of the elements necessary to prove the tort. Secondly, the pleadings do not clarify or set out the manner in which the facts that are pleaded constitute malicious prosecution by the State of New South Wales. This is particularly so, given the requirements in pleading such a matter in relation to prosecutors, who have no personal knowledge of the facts giving rise to the prosecution. 3. I have assumed in the foregoing that an application for an ADVO is a proceeding that can be the subject of malicious prosecution. The foregoing comment does not suggest or decide that it can be or it cannot be; nor should it be taken as implying that any question in that regard arises. 4. In relation to abuse of process, which I take to be the cause of action associated with collateral abuse of process (hereinafter, "collateral abuse"), again, the High Court has discussed the elements necessary for collateral abuse to be proved. The most oft-cited High Court case in that respect is the judgment of the High Court in Williams v Spautz (1992) 174 CLR 509; [1992] HCA 34. In Williams v Spautz the High Court summarised collateral abuse as involving: 1. a requirement that the party who has instituted the impugned proceedings has done so for a purpose or to effect an object beyond that which the legal process offers; 2. the purpose of the party instituting the impugned proceedings is of crucial importance; 3. the abusive purpose of the impugned proceedings must be the predominant or effective purpose; and 4. the onus of proof on the plaintiff in order to succeed on a claim of collateral abuse is a heavy one: see Williams v Spautz at 523, 524 and 529. 1. Again, the plaintiff has not set out sufficient facts or allegations that would make out the cause of action of collateral abuse against the State of New South Wales (again, the liability for which runs through the Police officers prosecuting the plaintiff). Further, once more, the plaintiff, in the proposed Amended Statement of Claim does not clarify how the facts that are alleged combine to make the State of New South Wales liable for collateral abuse. Importantly, from the point of view of the prosecutors, it would require the plaintiff to prove that the Police officers had a purpose other than the achievement of the legal remedy for which the proceedings were taken. 2. The criticisms in relation to the State of New South Wales apply, albeit with less force, to the second defendant. The facts alleged against the second defendant might imply most of the elements associated with malicious prosecution. Nevertheless, in relation also to the second defendant, the plaintiff does not clarify how and in what way the malicious prosecution arises from the facts asserted. 3. In relation to the proposed third defendant, the cause of action seems totally independent of the causes of action associated with the proceedings against the State of New South Wales and the second defendant. That is not to say that the plaintiff does not have a cause of action against the proposed third defendant, if the allegations in the proposed pleading are proved. 4. However, it is not obvious why the cause of action against the proposed third defendant should be joined to the proceedings involving the State of New South Wales and the second defendant. It is accurate to suggest, on the allegations that have been made, that the actions of the proposed third defendant will be a crucial issue in proving conduct and intention of the second defendant, necessary for the plaintiff to succeed against the second defendant. However, the causes of action are different and involve facts independent of the conduct of the second defendant. The Court is not satisfied that the proposed third defendant should be joined to the proceedings. Exercise of Discretion 1. The State of New South Wales asserts that, given the number of iterations that the proposed Amended Statement of Claim has had, the Court should not give the plaintiff a further opportunity to plead his causes of action. It is true that the requirements on the Court, practitioners and litigants to facilitate the quick, cheap and just resolution of the real issues between the parties mandates that, at some point, the Court will not allow the plaintiff to plead again the claims that are sought to be made. 2. Nevertheless, at this point, the iterations, about which the State of New South Wales complains, have been informal iterations between the parties. The Court is concerned with the proposed Amended Statement of Claim. 3. Given the allegations that have been made and the objections that have been taken, the Court is of the view that the plaintiff should be given one more opportunity to plead, in proper form, the cause of action against the State of New South Wales and the second defendant The pleadings 1. The proposed Amended Statement of Claim relies heavily on an allegation that the Police implemented a policy (hereinafter "the Policy") by which the Police prosecuted proceedings for an ADVO in all cases involving an allegation of domestic violence. In so doing, the plaintiff alleges, the Police failed to undertake proper or sufficient investigations. 2. Further, although not clear, it seems that the plaintiff also alleges some kind of misfeasance or non-feasance in office. If that be the case, it has been inadequately pleaded and would need significant re-pleading. Conclusion 1. For the foregoing reasons, the Court makes the following orders: 1. Leave to file the proposed Amended Statement of Claim, to which the Notice of Motion refers, is refused; 2. Motion dismissed; 3. Leave is granted to the plaintiff to file, within 28 days of these orders, a further Notice of Motion seeking leave to file an Amended Statement of Claim, that complies with the principles of pleading, and accords with these reasons for judgment; 4. Leave to join the putative third defendant is refused; 5. The plaintiff shall pay the defendants' costs of and incidental to the 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: 01 April 2019