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District Court 17 April 2015

Rook v State of New South Wales (No 2)

[2015] NSWDC 72

Other
PRACTICE & PROCEDURE PLEADING REPLY WHETHER NECESSARY WHETHER EMBARRASSING TORTS

Citation: Rook v State of New South Wales (No 2) [2015] NSWDC 72
Court: District Court of New South Wales
Date: 17 April 2015
Judge(s): Neilson DCJ

Background

A plaintiff brought civil proceedings against the State of New South Wales arising from an alleged unlawful arrest by police officers on 5 June 2011 at his Bellevue Hill residence. The claim encompassed assault and battery, false imprisonment, detention of goods, and malicious prosecution, pursued under the tort liability framework applicable to police officers in New South Wales.

The State defended the proceedings, asserting the arrest was lawful following a failed roadside breath test and relying on various statutory powers. The plaintiff had previously brought a motion to strike out parts of the defence, which a different judge dismissed with costs.

After that motion failed, the plaintiff filed a reply to the defence on 11 February 2015. The State then moved to strike out that reply, which was the matter before Neilson DCJ.

  • Whether a reply was necessary at all, given that the amended statement of claim and defence between them already raised all relevant issues.
  • Whether the form of the reply was embarrassing as a matter of pleading, making it liable to be struck out under the Uniform Civil Procedure Rules 2005.
  • Whether "wrongful arrest" constitutes a standalone tort capable of being pleaded as such, or whether it must be characterised through an established tort such as trespass to the person.
  • Whether a Magistrate's dismissal of a charge under section 10 (that is, where an offence was found proved but dismissed without conviction) constitutes a "favourable" termination for the purposes of a malicious prosecution claim.

Decision

Neilson DCJ struck out the reply. His Honour found that where an amended statement of claim and a defence together raise all the issues in dispute, a reply is unnecessary. Filing one serves no legitimate pleading purpose and can only introduce confusion.

His Honour also found the reply was embarrassing in form. At best, it could have applied to only one of the four torts pleaded, and even then it was not needed because the defence had not traversed the relevant fact it purported to address, namely the plaintiff's acquittal on two of the three criminal charges.

On the question of "wrongful arrest" as a pleading concept, Neilson DCJ expressed clear disapproval. An unlawful arrest is not a tort in itself; it may ground a claim in trespass to the person, but describing it as "wrongful arrest" and treating it as a standalone cause of action reflects what his Honour called "woolly thinking." This observation had been made previously and the Court repeated it here.

On the question of favourable termination, the Court noted that a section 10 dismissal, where an offence is found proved but dismissed without conviction, is arguably not a favourable termination for the purposes of malicious prosecution, citing both a 2013 New South Wales Supreme Court decision and a Victorian authority.

Orders Made

• The reply filed on 11 February 2015 is struck out
• Leave to the plaintiff to file an amended reply is refused
• The plaintiff will pay the defendant's costs

Key Takeaways

  • A reply is not necessary where the amended statement of claim and defence together raise all the relevant issues; filing one in those circumstances risks the reply being struck out as embarrassing.
  • "Wrongful arrest" is not a recognised tort in New South Wales. An unlawful arrest may support a claim in trespass to the person, but it cannot be pleaded as a cause of action in its own right.
  • The District Court confirmed that a reply will be embarrassing if it purports to cover multiple torts but can only coherently apply to one, particularly where the defence has not actually traversed the fact in question.
  • A section 10 dismissal, where an offence is proved but dismissed without conviction, may not constitute a favourable termination for the purposes of a malicious prosecution claim, consistent with both New South Wales and Victorian authority.
  • Under the Law Reform (Vicarious Liability) Act 1983, police officers are deemed persons in the service of the Crown, and the State of New South Wales bears vicarious liability for police torts committed in relevant circumstances.

Legislation and Cases Referenced

Legislation:
- Crown Proceedings Act 1988 (NSW)
- Law Reform (Vicarious Liability) Act 1983 (NSW), ss 6, 8, 9, 9B
- Law Enforcement (Powers and Responsibilities) Act 2005 (NSW)
- Road Transport (Safety and Traffic Management) Act 1999 (NSW) (repealed), ss 9(3), 13, 14
- Uniform Civil Procedure Rules 2005 (NSW), rr 42.26, 42.32

Cases:
- A v New South Wales [2007] HCA 10; (2007) 230 CLR 500
- Beckett v New South Wales [2013] HCA 17
- Cameron v James [1945] VLR 113
- Clavel v Savage [2013] NSWSC 775
- East West Airlines (Operations) Ltd v Commonwealth of Australia (1983) 49 ALR 323
- Liao v State of New South Wales [2014] NSWCA 71
- Rook v State of New South Wales [2014] NSWDC 304
- Udowenko v St George Bank [2011] NSWSC 1122