Citation: Rook v State of New South Wales [2014] NSWDC 304
Court: District Court of New South Wales
Date: 5 December 2014
Judge: P Taylor SC DCJ
Background
The plaintiff was stopped by police while driving on 5 June 2011, subjected to a breath test, arrested, imprisoned, and prosecuted for three offences: driving with a mid-range concentration of alcohol, disobeying a request to stop for a breath test, and failing to stop when directed. All charges were ultimately dismissed or dealt with without conviction by the Local Court, principally because the court was not satisfied that the breath test occurred at a location other than the plaintiff's home, as required under relevant road transport legislation.
The plaintiff then commenced civil proceedings against the State of New South Wales, claiming damages for false imprisonment, wrongful arrest, malicious prosecution, assault and battery, and detinue of personal property. His damages claims included psychological injury arising from each of those torts.
In its defence, the State denied that the plaintiff had parked at his own residence and alleged that he had been driving with a mid-range prescribed concentration of alcohol. The State also relied on section 54 of the Civil Liability Act 2002, which can bar a plaintiff from recovering personal injury damages where the plaintiff's own conduct constituted a serious offence that materially contributed to the injury. The plaintiff moved to strike out those paragraphs of the defence.
Legal Issues
- Whether a defence that re-pleads the underlying criminal allegations is available in a malicious prosecution claim, given the High Court's statement in Beckett v New South Wales that the plaintiff's guilt or innocence is not in issue in such a claim
- Whether section 54 of the Civil Liability Act 2002 (the "criminals not to be awarded damages" provision) applies to claims for malicious prosecution, wrongful arrest, false imprisonment, and assault and battery
- Whether the need to respond to additional evidence (a survey of property boundaries) constituted prejudice and delay sufficient to justify striking out the defence paragraphs
- Whether correspondence between the parties' solicitors was a proper basis for the strike-out application
Decision
The court dismissed the plaintiff's notice of motion and refused to strike out the disputed paragraphs of the defence.
On the malicious prosecution point, the court accepted that, under Beckett, the plaintiff's guilt or innocence of the original charges is not in issue on the question of liability for malicious prosecution. However, the court distinguished between the liability question and the damages question. Section 54 of the Civil Liability Act 2002 operates at the damages stage and requires a court to determine, on the balance of probabilities, whether the plaintiff's own conduct constituted a serious offence that materially contributed to the injury. The court held that the broad language of sections 51 and 54 did not support reading in a restriction that would exclude malicious prosecution or other intentional tort claims from the operation of section 54.
The plaintiff's argument that Parliament could not have intended guilt to be litigated at the damages stage when it is irrelevant to liability was rejected. Without any extrinsic material such as Hansard to support a narrower construction, the court applied the plain meaning of the statutory text. The court also noted that whether any particular conduct could be causative of the plaintiff's injuries was appropriately left to the trial judge, as was the question of whether section 54 could ultimately be established on the facts.
On the prejudice and delay argument, the court was not satisfied that the need to obtain a survey in response to the State's pleading constituted the kind of prejudice or delay that warrants striking out a pleading under rule 14.28(1)(b) of the Uniform Civil Procedure Rules 2005, particularly where no trial date had been set. The court also declined to treat the solicitors' correspondence, including documents marked "without prejudice," as a basis for the strike-out application.
Orders Made
- The plaintiff's notice of motion filed 26 November 2014 was dismissed.
- The plaintiff was ordered to pay the defendant's costs of the notice of motion.
Key Takeaways
- The District Court confirmed that, while Beckett v New South Wales establishes that a plaintiff's guilt or innocence is not in issue on the liability elements of malicious prosecution, this principle does not automatically exclude a section 54 Civil Liability Act 2002 defence at the damages stage.
- Under sections 51 and 54 of the Civil Liability Act 2002, a defendant may plead that the plaintiff's own conduct constituted a serious offence materially contributing to the plaintiff's injury, even where those allegations replicate the criminal charges that were dismissed.
- Where a plaintiff contends that a magistrate's factual findings estop the defendant from re-litigating a particular fact, the appropriate procedural course is to file a reply pleading that estoppel, rather than to seek to strike out the defence paragraphs.
- Courts exercise caution when striking out defence paragraphs where the relevant matters are potentially arguable, and the threshold for demonstrating that a pleading discloses no reasonable defence must be clearly met.
- The need to obtain additional evidence (such as a survey) to meet a pleaded defence is not, without more, a form of prejudice or delay that justifies striking out that defence under rule 14.28(1)(b) of the Uniform Civil Procedure Rules 2005, especially before any trial date has been fixed.
Legislation and Cases Referenced
Legislation
- Civil Liability Act 2002 (NSW), ss 51, 54
- Evidence Act 1995 (NSW), s 131
- Road Transport (Safety and Traffic Management) Act 1999 (NSW), s 17
- Uniform Civil Procedure Rules 2005 (NSW), rr 14.28, 20.26
Cases
- 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