Burton v Babb

1. [1]

   PAYNE JA and SIMPSON AJA: By summons filed on 17 August 2020 the applicant (Paul Robert Burton) seeks leave to appeal against orders made by Balla ADCJ (“the primary judge”) on 14 August 2020. Leave is required because each order in question is interlocutory: Supreme Court Act 1970 (NSW) s 101(2)(e). The orders were made in proceedings commenced by the applicant and another person, Andrew Katelaris, against two named defendants (Lloyd Babb and Michael Coutts-Trotter) on 29 June 2020, by which the applicant and Dr Katelaris claim damages for malicious prosecution, and, possibly, other asserted wrongdoing (as noted below, the originating process is not in the materials provided to this Court). The first defendant (Mr Babb) is the Director of Public Prosecutions appointed under s 4 of the Director of Public Prosecutions Act 1986 (NSW) (“the DPP Act”). The second defendant (Mr Coutts-Trotter) is the Secretary of the NSW Department of Communities and Justice.

2. [2]

   By notice of motion filed on 27 July 2020 the applicant sought an order, pursuant to s 76A of the District Court Act 1973 (NSW), that the proceedings be heard by a jury. By notice of motion filed on 7 August 2020 the State of New South Wales (“the State”) sought orders:

   1. (1)

      pursuant to Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”) r 6.24(1), that it (the State) be joined as a defendant to the proceedings; and

   2. (2)

      pursuant to UCPR r 6.29, that each of the named defendants be removed from the proceedings.

3. [3]

   On 14 August 2020 the primary judge ordered, relevantly:

   1. (1)

      that the State be joined to the proceedings;

   2. (2)

      that the two named defendants be removed from the proceedings;

   3. (3)

      that the applicant’s notice of motion seeking trial by jury be dismissed:

   4. (4)

      Paul Robert Burton and Andrew Katelaris v Lloyd Babb and Michael Coutts-Trotter (District Court (NSW), 14 August 2020, unrep).

4. [4]

   The applicant has appeared in this Court to represent himself, as he did in the District Court. At the outset it may be observed that the material before this Court is deficient in a number of respects. It does not include the originating process, nor any evidence adduced by the applicant in the District Court (it appears that no affidavit evidence was filed). It does include an affidavit sworn by Ms Lucinda Bozic, a solicitor employed in the office of the Crown Solicitor which represents both of the named defendants and the State. It also includes a transcript of the argument before the primary judge, and substantial written submissions made by the parties. From this material and also from a previous judgment of this Court (Burton v Office of the Director of Public Prosecutions [2019] NSWCA 245), relevant facts may be gleaned. There does not appear to be any serious issue about the relevant facts.

Background facts

1. [5]

   On 25 May 2017 certain non-publication orders were made in the Children’s Court, purportedly under s 7 of the Court Suppression and Non-publication Orders Act 2010 (NSW). On 21 December 2017 the applicant was charged, under s 16 of that Act, with three offences of contravention of those orders. Those charges were subsequently withdrawn. Presumably on the basis that the criminal prosecution had terminated favourably to him, the applicant commenced the present proceedings, seeking damages for malicious prosecution: Wood v State of NSW [2019] NSWCA 313 at [24].

2. [6]

   On 31 July 2020 Ms Bozic wrote to the applicant and Dr Katelaris, advising that she had instructions to admit, on behalf of the State, vicarious liability for any tort pleaded in the statement of claim that was established, and proposing that, accordingly, the correct defendant was the State, which she said, ought to be substituted for the two named defendants. The applicant replied, disputing the State’s position. He declined to amend his pleading. On 7 August 2020 the State filed the notice of motion seeking orders that it be joined as a defendant and that Mr Babb and Mr Coutts-Trotter be removed.

3. [7]

   Section 5(1) of the Crown Proceedings Act 1988 (NSW) provides:

4. [8]

   Section 8(1) of the Law Reform (Vicarious Liability) Act 1983 (NSW) (“the Vicarious Liability Act”) provides:

5. [9]

   Section 35(2) of the DPP Act provides:

6. [10]

   The Uniform Civil Procedure Rules contain the following relevant provisions:

7. [11]

   The States notice of motion did not name the defendants either as applicants or respondents. There was no indication that they had been served or otherwise notified of the State’s applications. There is no indication that they consent to or oppose the orders sought. Nevertheless, in what follows we have assumed that each named defendant is aware of the orders the State seeks, and concurs in the applications.

8. [12]

   The State contended that, by reason of its exposure to liability to meet any judgment against either of the named defendants, consequent upon s 8 of the Vicarious Liability Act, its rights and interests are inevitably affected, regardless of whether or not the applicant seeks to engage that liability. It is, therefore, a necessary party to the proceedings. In the language of UCPR r 6.24(1), its joinder is necessary to the determination of all matters in dispute in the proceedings.

9. [13]

   The applicant’s argument in opposition depended, significantly, on his construction of s 35(2) of the DPP Act. He accepted that, by reason of s 35(2), the first defendant could not be personally liable if he acted in good faith. However, his (the applicant’s) claim of malicious prosecution is a claim that the first defendant acted against good faith. The State could not be vicariously liable for a prosecution undertaken against good faith. It should therefore not be a defendant.

10. [14]

    That argument, of course, has no application to the second defendant. However, similar reasoning was applied to s 8 of the Vicarious Liability Act. The State’s liability under that provision arises only where the conduct relied upon to establish the tort took place in the performance (or purported performance) of a function in the course of employment, or incidental thereto (which may be more compendiously, but still, we think, accurately, stated as “in the execution of duty”). The applicant argued that, since he alleged that the prosecution was malicious, it could not have been carried out in the execution of duty by either the first or the second defendant. Again, the State should not be a defendant.

11. [15]

    The applicant further argued that the State’s acceptance of liability under s 8 of the Vicarious Liability Act was, in effect, incompetent, for essentially the same reasons, that is, because the acts he alleged to have been tortious acts committed by the first and second defendants were not committed by them in the execution of their duties and s 8 does not apply. Accordingly, whatever stance the State took with respect to the alleged tortious behaviour of the first and second defendants, it could not subject the taxpayers of NSW to liability to pay any damages awarded.

12. [16]

    The relevant provisions of the Crown Proceedings Act and the Vicarious Liability Act need to be properly understood. Section 5 of the Crown Proceedings Act permits a person who asserts a “claim or demand” against the Crown to “bring civil proceedings against the Crown” under the title of “the State of New South Wales”. The purpose of the Crown Proceedings Act, as explained by the then Attorney-General, was to replace the previous “anachronistic” procedure by which a litigant seeking to make a claim against the Crown was obliged to petition the Governor for the appointment of a nominal defendant: Claims against the Government and Crown Suits Act 1912 (NSW) (repealed by s 10 of the Crown Proceedings Act). Section 5 of the Crown Proceedings Act does no more than give effect to the intention to streamline a previously cumbersome procedure: see the Second Reading Speech of the Attorney-General, Mr Dowd: New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 18 October 1988 at 2416.

13. [17]

    Section 8 of the Vicarious Liability Act requires the State to indemnify an employee who, in the execution of duty, commits a tort in respect of which damages are awarded.

14. [18]

    Neither provision precludes the commencement of proceedings against individual employees or officers of the State. The purpose of s 8 is twofold: it provides protection to employees or officers of the Crown against personal liability where the act or omission the subject of the claim is committed in the execution (or purported execution) of duty, or incidentally thereto; and, together with s 5 of the Crown Proceedings Act, it provides a direct avenue of redress to a plaintiff who claims to have been tortiously wronged by an employee or officer of the Crown. Neither provision operates as a bar to the commencement of proceedings against individual employees or officers. No plaintiff is obliged to take advantage of the opportunity to make a claim against the State in preference to an individual alleged wrongdoer. As Leeming JA explained in Boyd v Thorn (2017) 96 NSWLR 390; [2017] NSWCA 210 at [87]:

15. [19]

    Each of the applicant’s arguments should be rejected. Section 35 of the DPP Act is immaterial. That provision does no more than protect a “prescribed person” from personal liability for conduct committed in good faith for the purpose of executing any relevant law. It is true that, as the applicant argued, it is difficult to see how a prosecution pursued maliciously could also have been undertaken in good faith. But that is not a question that can be decided at a preliminary, pleading, stage of the proceedings. Whether a prosecution is pursued maliciously (and therefore not in good faith) will be central to the determination of the malicious prosecution case. It would be premature to embark on a consideration of the bona fides of the first defendant at this stage of the proceedings.

16. [20]

    The same is true of s 8 of the Vicarious Liability Act. The personal liability of a Crown employee for a tort may well depend on whether the conduct relied on to establish the tort was committed in the execution of duty. That will be an issue in cases where the plaintiff takes advantage of the direct recourse to the State provided by s 5 of the Crown Proceedings Act, and the State denies that the tort was committed in the execution of duty: see by way of example, Prior v State of New South Wales [1998] NSWCA 289. It may also be an issue between the alleged tortfeasor and the State, where the alleged tortfeasor seeks to take advantage of s 8 and the State denies that the tort was committed in the execution of duty. But it also is not an issue to be determined at the preliminary, pleading, stage of a proceeding where, as here, the plaintiff has opted to proceed directly against the alleged tortfeasors, and not against the State.

17. [21]

    The applicant’s challenge to the competency of the State’s decision to accept vicarious liability should also be rejected. It is a matter for the State whether it agrees or declines to accept liability, and its decision in that respect is not open to challenge by a plaintiff who alleges tortious conduct against a State employee. The fact is that, in this case, the State has voluntary accepted vicarious liability for any of the pleaded torts found to have been committed by either of the named defendants. The applicant has no standing to challenge that decision.

18. [22]

    Whether the State ought to be joined as a defendant is to be decided by reference to the Uniform Civil Procedure Rules. As set out above, the State relied on r 6.24(1). Rule 6.24 empowers the Court to order joinder of a person in two circumstances:

19. [23]

    Two uncontroversial propositions may be stated:

    1. (1)

       an intending plaintiff is entitled to pursue a remedy against one defendant alone, even where others may also be liable: Foxe v Brown [1984] HCA 69; (1984) 59 ALJR 186; 58 ALR 542; News Ltd v Australian Rugby Football League Limited (1996) 64 FCR 410; [1996] FCA 870 (“the Superleague case”) at (524-526.) (In modern litigation, to take such a course may carry adverse consequences: see, for example, Part 4 of the Civil Liability Act 2002 (NSW));

    2. (2)

       any person who is directly affected by the orders sought in a proceeding is a necessary party to that proceeding, and the obligation to join that person rests on the plaintiff (or the applicant): Victoria v Sutton (1998) 195 CLR 291; [1998] HCA 56 at [77], per McHugh J; Ross v Lane Cove Council (2014) 86 NSWLR 34; [2014] NSWCA 50 at [51] per Leeming JA.

20. [24]

    Uncontroversial those propositions may be, but they sometimes collide. Determination of who “ought to be joined” or who “is a necessary party” is not always uncontroversial and not necessarily simple: see the Superleague case at 524-526. A test proposed by Diplock LJ in Pegang Mining Co Ltd v Choong Sam [1969] 2 MLJ 52 at 55-56 (and endorsed by the Full Court of the Federal Court in the Superleague case at 524) is:

21. [25]

    In John Alexander’s Clubs Pty Ltd v White City Tennis Club Ltd (2010) 241 CLR 1; [2010] HCA 19 at [131] the High Court accepted as correct a proposition that:

22. [26]

    However, in the Superleague case, having endorsed Lord Diplock’s test, the Court went on to say (at 525):

23. [27]

    In the present case it is undeniable that the State’s interests will be affected by any judgment in favour of the applicant. That is inevitably so because of the operation of s 8 of the Vicarious Liability Act. It is immaterial that the applicant does not seek to avail himself of the opportunity to seek redress directly against the State.

24. [28]

    There is, however, a question of the “practical realities” of the case, to borrow the terminology of the Full Federal Court in the Superleague case. As the proceedings are presently constituted, each of the defendants will have the opportunity to defend the claims made against him on whatever basis he chooses, but it may be assumed that, inter alia, they will deny malice. It is true, as the applicant contends, that a finding of malice (if made) may well be antithetical to acceptance of vicarious liability. But the State does not propose to deny vicarious liability, and, indeed, embraces it. It is difficult to see what the State could add to the determination of the issues.

25. [29]

    There may be cases in which a vicariously liable defendant and the named defendant will have conflicting approaches to the conduct of the case. In those circumstances, joinder of the vicariously liable defendant may be necessary. That does not appear to be this case. So far as the evidence presently goes, the positions of the two named defendants and the State are at one. There is no demonstrated practical advantage in joining the State.

26. [30]

    To be joined, the State must bring itself within the language of r 6.24. It is worth repeating that an order for joinder under r 6.24(1) requires either:

27. [31]

    We are unable to conclude that the State “ought to have been joined” by the applicant. As stated in Foxe v Brown, the applicant was entitled to bring his proceedings against the named defendants alone, and leave them to exercise their rights (to the extent necessary) against the State.

28. [32]

    Nor, in the circumstances of this case, do we consider that it has been shown that the joinder of the State is necessary to the determination of all matters in dispute. The absence of any pleadings in the materials before this Court makes it difficult to reach any firm or final conclusion about what matters will be in dispute. So far as the evidence goes, no defences have yet been filed. We have assumed above that malice will be a central issue. No doubt there will be other issues, including whether either of the named defendants was, for the purposes of the tort of malicious prosecution, a prosecutor. There is no present indication that any matter which may be in dispute in the proceedings brought as presently constituted will be unable to be determined without the joinder of the State. That would tell against an order of joinder. In that respect the decision in Foxe v Brown offers guidance.

29. [33]

    Foxe v Brown involved a claim for damages for personal injury arising out of motor vehicle collision. The claim was made, under s 75(iv) of the Constitution, in the original jurisdiction of the High Court. It was common ground that, by reason of a policy of insurance attaching to the defendant’s vehicle, any damages awarded could be recovered from the insurer. Although regulation 12 of the relevant regulations gave the plaintiff a right to proceed directly against the insurer, he proceeded only against the driver of the vehicle. The insurer successfully sought to be added as a defendant. The relevant provision was Order 16 r 4(2) of the High Court Rules, which relevantly permitted joinder of a person:

30. [34]

    Mason J rejected the proposition that the insurer was a person “who ought to have been joined”. The relevant question, his Honour said, was whether the insurer came within the second category for which joinder was permitted. His Honour held that it did, because:

31. [35]

    We perceive no difference in substance between a rule that permits joinder of a person:

32. [36]

    We are equally unable to distinguish between an insurer who is, by reason of an insurance policy, liable to indemnify a negligent driver against an award of damages, and the State which is, under statute, liable to indemnify a tortious employee.

33. [37]

    The critical factual distinction between Foxe v Brown and the present case was that, in Foxe v Brown the defendant had not been served with the statement of claim, and, eventually, the plaintiff was given leave to serve it on the insurer. In the absence of service on the named defendant, if the insurer were not party to the proceedings, the claim would, in all probability, have gone undefended. It was, in those circumstances, no doubt the case that joinder of the insurer was necessary “effectually and completely to adjudicate upon and settle all the questions arising” in the case.

34. [38]

    The State relied, wrongly, on s 5 of the Crown Proceedings Act and s 8 of the Vicarious Liability Act for the proposition that it was “the appropriate defendant”. For reasons given above, those provisions, while they may render the State “an appropriate party”, do not render it “the appropriate party”. They do not preclude proceedings against individual named employees.

35. [39]

    The only basis stated by the State for the contention that it was “the appropriate defendant” derived from the decision of this Court in Bhattacharya v Minister for Police, NSW [2001] NSWCA 109. That decision does not support the proposition. Mr Bhattacharya brought proceedings against numerous public officials claiming damages for malicious prosecution and false imprisonment rising out of his detention (usually in mental health institutions) on six separate occasions. At first instance the statement of claim was dismissed by Master Harrison; Bhattacharya v Minister for Police, NSW [1999] NSWSC 956. On appeal to the Supreme Court that decision in respect of five of the claims that decision was upheld by Hidden J: Bhattacharya v Minister for Police [2000] NSWSC 335. One claim, of wrongful arrest and false imprisonment, arose out of Mr Bhattacharya’s arrest and detention for questioning, after which he was released. In relation to this claim he named “the Department of Corrective Services”, the Minister for Health and the Director General of the Department of Health, the Minister for Police, and the Commissioner of Police as defendants. As the claim made no allegation against the first three named defendants, its dismissal was also upheld in that respect. Hidden J considered that, as the claim made no allegation of any tort committed by either of the remaining defendants, it could be maintained only on the basis of vicarious liability in accordance with s 8 of the Vicarious Liability Act, a claim which was not pleaded. He considered that any such claim “would need to be brought against the State of New South Wales in accordance with the Crown Proceedings Act” (at [13]).

36. [40]

    That decision was, in turn, upheld in this Court: Bhattacharya v Minister For Police, NSW [2001] NSWCA 109. Davies AJA (with whom Meagher and Powell JJA agreed), said that Hidden J was correct in holding that (at [23]):

37. [41]

    The State’s reliance on this passage, in the circumstances of the present case, was misconceived. Mr Bhattacharya had not sued any of the defendants he named as actual tortfeasors. In circumstances where the named defendants could only be held liable vicariously, the appropriate defendant was the State. The decision in Bhattacharya is not authority for the proposition that, where the State is vicariously liable for the torts of its employees, it is the only appropriate defendant.

38. [42]

    Although joinder under r 6.24 is discretionary, no occasion for the exercise of discretion arises unless and until the court is satisfied of the existence of one of the two pre-conditions already discussed.

39. [43]

    All parties continue to enjoy common representation and it was not suggested that the evidence to be led or the legal approach of the defendants to the defence of the claim would or even might diverge from that sought be advanced by the State. The joinder of the State was not in those circumstances “necessary to the determination of all matters in dispute in any proceeding”.

40. [44]

    In a different practical scenario; for example if, in a particular case, the State sought to advance a case different from that of a defendant in respect of whom the State may be vicariously liable, we do not rule out the possibility that the joinder of the State may be “necessary to the determination of all matters in dispute in [the] proceedings”. Should any such divergence arise in the future, a fresh application, based on the then existing circumstances, may be made.

41. [45]

    We would grant leave to the applicant to appeal against the order joining the State and allow the appeal.

42. [46]

    Uniform Civil Procedure Rules r 6.29 permits removal of a party in four circumstances:

43. [47]

    We do not understand it to be contended on behalf of the State that the first and second defendants were either improperly joined or unnecessarily joined; rather, it was the State’s contention that, if the State were added as a defendant, each named defendant will have ceased to be either a proper party or a necessary party. The State further contended that removal of the named defendants deprives the applicant of nothing except the opportunity to enforce any judgment against them personally – an opportunity that is, in any event, lost to them by reason of s 8 of the Vicarious Liability Act.

44. [48]

    The applicant maintained that both named defendants remained proper and necessary parties. Essentially, that was for the same reason that he contended that the State ought not be joined – that the State cannot be vicariously liable for torts committed by them maliciously, not in good faith, or not in the execution of their duties. That argument should be rejected for the same reasons that it failed in relation to the joinder of the State.

45. [49]

    The question of removal is, like the question of joinder, to be approached by reference to the provisions of the relevant rules. It cannot be said that either named defendant was improperly joined. Nor, in circumstances where the State was not a party, could it be said that either was not a necessary party.

46. [50]

    The State advanced an argument, (accepted by the primary judge) in support of the exercise of discretion in its favour, to the effect that, once the State was joined, if the named defendants remain as parties, there may be an increase in costs and hearing times. We have concluded that this was an error. The State has agreed to accept vicarious liability. Counsel who appeared for the State and the named defendants on the hearing of this application was unable to identify any possible additional costs which may be incurred in the circumstances posited. We reject the State’s argument based on discretionary considerations.

47. [51]

    Even if the State were to be joined as a party, there is no evidence of any disputed issue that would require separate representation of the named defendants and the State. Indeed, the State’s acceptance of vicarious liability strongly points in the opposite direction. Even so, in our opinion, each of the named defendants would remain a “proper party”. It is their conduct that is in question, and it is their conduct on which the applicant relies to establish the tort he alleges. Even on the hypothesis that the State should be joined, we are unable to accept that the defendants have ceased to be proper parties.

48. [52]

    Accordingly, the order removing the named defendants should be set aside.

49. [53]

    Section 76A of the District Court Act 1973 (NSW) relevantly provides:

50. [54]

    By subs (1) trial by judge alone has been designated by Parliament as “the norm”: Maroubra Rugby League Football Club Inc v Malo (2007) 69 NSWLR 496; [2007] NSWCA 39 at [31]. An exception is provided by subs (2), which permits the court to make an order departing from “the norm” if satisfied that the interests of justice so require. This was the subject of extensive discussion by Mason P in Malo.

51. [55]

    The primary judge outlined the argument of the applicant in the District Court as having two principal components –

52. [56]

    These circumstances, the applicant argued in the District Court and in this Court, were apt to create an apprehension of bias on the part of a judge determining the factual issues. The applicant was careful to avoid any assertion of actual bias. He relied on what he contended would be a perception in the public mind that a judge would be influenced by the positions of the defendants.

53. [57]

    The primary judge rejected those arguments, saying that she was “not persuaded” that those matters, assuming they were correct, would give rise to a reasonable apprehension of bias on the part of a fair minded lay observer.

54. [58]

    In this Court the applicant again placed emphasis on the identity of the named defendants, pointing out (somewhat irrelevantly) that members of staff of the court in which the proceedings will be heard “all draw wages from the same source”. This, he argued, would give rise to a reasonable apprehension of bias. The primary judge rejected that argument, as do we.

55. [59]

    We would decline to interfere with the order of the primary judge. While it may be assumed that, by reason of his statutory position, the first defendant is known to some judges of the District Court (in which the proceedings will be heard) there is no evidence to support that assertion in relation to the second defendant. More importantly, there is no support for the proposition that members of the public would perceive that a judge would in fact lack impartiality in relation to either defendant.

56. [60]

    We would refuse leave to appeal on this proposed ground.

57. [61]

    Given that both parties have enjoyed a measure of success we would not make any order as to costs in this Court.

58. [62]

    Accordingly, the orders we propose are:

    1. (1)

       Leave to appeal against the orders:

    2. (2)

       Appeal allowed in part;

    3. (3)

       The appeal against orders (i)(a) and (i)(b) above allowed;

    4. (4)

       Orders (i)(a) and (i)(b) set aside and in lieu thereof the State of NSW’s notice of motion of 7 August 2020 is dismissed with costs;

    5. (5)

       Leave to appeal against the dismissal of the applicant’s notice of motion of 27 July 2020 refused;

    6. (6)

       No order as to the costs of the proceeding in this Court.

59. [63]

    BRERETON JA: The applicant Mr Burton is one of two plaintiffs, the other being Dr Katelaris, in proceedings in the District Court for damages for malicious prosecution against Mr Babb SC and Mr Coutts-Trotter. On 14 August 2020, Balla ADCJ dismissed a motion filed by Mr Burton and Dr Katelaris seeking an order that the proceedings be heard by a jury, and on a motion filed by the State of New South Wales ordered that it be joined as a defendant and that Messrs Babb and Coutts-Trotter be removed as parties. Before this Court, for concurrent hearing, is Mr Burton’s application for leave to appeal from that interlocutory judgment and, if leave be granted, the hearing of the appeal.

Trial by Jury

1. [64]

   (NSW) District Court Act 1973, s 76A, provides that an action is to be tried without a jury unless (subs(2)(b)) “the Court is satisfied that the interests of justice require that the action be tried by a jury.” Mr Burton submitted that the standing of Messrs Babb and Coutts-Trotter was such that they would likely be well-known to judges, thus creating in the eyes of the public an apprehension of bias such as to require a jury trial. The primary judge was not satisfied that a fair-minded lay observer would reasonably apprehend bias, nor therefore that the interests of justice required a jury trial.

2. [65]

   There may be much to be said for malicious prosecution claims being heard by juries. As was observed, by Keogh J, in Marinelli v State of Victoria, [1] juries are “very well suited” to deciding malicious prosecution claims. It may even have been in the interests of justice in this case to so order. However, that is not the test – it is whether the interests of justice require it. Whether or not the power is properly characterised as discretionary in nature, [2] in my view, while minds may differ in the circumstances of this particular case, it cannot be said that there is a sufficiently clear case of error to warrant a grant of leave to appeal on this ground. [3]

Joinder of parties

1. [66]

   Under (NSW) Uniform Civil Procedure Rules 2005 (“UCPR”), r 6.24(1), the Court may order that a person be joined as a party if it considers that the person “ought to have been joined as a party, or is a person whose joinder as a party is necessary to the determination of all matters in dispute”. Under UCPR, r 6.29, parties may be removed by the Court if they have (subr a) been “improperly or unnecessarily joined” or have (subr b) “ceased to be a proper or necessary party”.

2. [67]

   The primary judge held that as the State admitted vicarious liability for Messrs Babb and Coutts-Trotter in respect of any torts committed by them, the effect of (NSW) Law Reform (Vicarious Liability) Act 1983, s 8, and (NSW) Crown Proceedings Act 1988, s 5, was that the State was a person affected by the proceedings and ought to be joined, and that once it was joined Messrs Babb and Coutts-Trotter were no longer necessary parties, and that additional time and costs would result from their retention as parties. In circumstances where the State admitted vicarious liability for any tortious conduct, it is not apparent why that would be so. However, there are more principled issues with her Honour’s approach.

3. [68]

   At common law, the Crown was not liable personally or vicariously for the tortious acts of its agents or employees. [4] However, (NSW) Law Reform (Vicarious Liability) Act 1983, s 8(1), relevantly provides that:

4. [69]

   8 Further vicarious liability of the Crown

   1. (1)

      (1) Notwithstanding any law to the contrary, the Crown is vicariously liable in respect of a tort committed by a person in the service of the Crown in the performance or purported performance by the person of a function (including an independent function) where the performance or purported performance of the function:

   2. (2)

      (a) is in the course of the person’s service with the Crown or is an incident of the person’s service (whether or not it was a term of the person’s appointment to the service of the Crown that the person perform the function), or

   3. (3)

      (b) is directed to or is incidental to the carrying on of any business, enterprise, undertaking or activity of the Crown.

   4. (4)

      In proceedings to enforce such liability against the Crown, “the proceedings and rights of the parties shall … as nearly as possible be the same … as in an ordinary case between subject and subject”: (NSW) Crown Proceedings Act 1988, s 5(2).

5. [70]

   Section 8 captures such torts as malicious prosecution, wrongful arrest and false imprisonment. [5]

6. [71]

   (NSW) Director of Public Prosecutions Act 1986, s 35, provides that “no matters or things done by a prescribed person shall, if the matter was done in good faith … subject any prescribed person personally to any action, liability, claim or demand.” While, where engaged, that provision may afford an immunity to the DPP in proceedings brought against the DPP personally, it says nothing about vicarious liability. There is some controversy as to the availability of vicarious liability where the employee or agent is immune: see for example Bell v State of Western Australia, [6] in which the plaintiff alleged that an employee of the Department of Transport had negligently caused damage to his houseboat. However, the (WA) Western Australian Marine Act 1982, s 124, provided immunity from liability for officers acting in good faith, in the following terms:

7. [72]

   124 Immunity of Minister and officials

8. [73]

   The Full Court of the Supreme Court of Western Australia held that in the light of that immunity, the employee was not liable to the plaintiff, and it followed that the Crown as employer was also not liable. However, the Court noted that there was no reservation of vicarious liability. On the other hand, it has been held, including in this State, that the former “inter-spousal” immunity protected a tortfeasor spouse, but not the tortfeasor’s employer. [7]

9. [74]

   These different outcomes depend on differing analyses of the nature of an employer’s vicarious liability, and it is not necessary for present purposes to resolve them here. Moreover, in distinction to Bell v State of Western Australia, there are here two statutory reservations of vicarious liability: the inclusion in (NSW) Director of Public Prosecutions Act 1986, s 35, of the word “personally”, which appears to mean that vicarious liability is unaffected even where the immunity is engaged, and s 10(2) of the Law Reform (Vicarious Liability) Act 1983 (NSW), which states that “[f]or the purposes of determining whether or not a person is vicariously liable in respect of a tort committed by another person, any statutory exemption conferred on that other person is to be disregarded.”

10. [75]

    However, assuming that the State is vicariously liable for any tort established against Mr Babb and/or Mr Coutts-Trotter, the legal consequence is that the State and its relevant officer(s) would be joint tortfeasors. [8] In other words, the State and its relevant officer(s) would be jointly and severally liable to the plaintiff. Vicarious liability does not render the employer liable to the exclusion of the employee or agent, nor (apart from statute) does it give the employee a right of indemnity from the employer. Indeed, but for the (NSW) Employees Liability Act 1991, the employer would typically be entitled to be indemnified by the employee, where the former’s liability was solely vicarious. [9] Even in a case to which it applies, [10] this is not affected vis-à-vis a third party by s 3 of that Act, which, despite the heading to the section, only affects the position as between employer and employee:

11. [76]

    UCPR, r 6.21, provides that “[a] person who is jointly and severally liable with some other person in relation to any act matter or thing need not be [joined] as a defendant in proceedings with respect to that act, matter or thing merely because the other person is a defendant in those proceedings.” Although a court may require the joinder of other parties who are jointly but not severally liable, that does not encompass cases of joint and several liability.

12. [77]

    Generally speaking, a plaintiff who conceives that it has a cause of action against a particular defendant or defendants is entitled to pursue that action against that defendant or defendants alone. [11] Presently, the plaintiffs seek no relief against the State, which of itself is a powerful indication that it is not a necessary party. [12] If either or both of the personal defendants are held liable, that will not bind the State, as it is not a party. If the plaintiffs wish to pursue the State as vicariously liable, they would have to do so in separate proceedings. If the personal defendants wish to claim some indemnity from the State, they can cross-claim. But there is no reason why the plaintiffs must sue the State. There is no principle or practice by which an employer is entitled to ask to be joined when the plaintiff claims no remedy against it, let alone have its employee or agent, against whom the plaintiff does claim a remedy, removed.

13. [78]

    The plaintiffs have chosen to sue Mr Babb and Mr Coutts-Trotter only. That may or may not prove to be a sound choice, and they may or may not have a tenable cause of action against them. But in circumstances where they have done so, and seek no relief against the State, the State is not a party who ought to have been joined, or whose joinder is necessary, for the purposes of UCPR, r 6.24. The fact that their ‘employer’ desires to be sued in their place provides no basis for removing the (alleged) tortfeasors, who are the parties that the plaintiff wishes to sue.

14. [79]

    In my opinion, the District Court Judge’s decision to join the State on its own application, and to remove Mr Babb and Mr Coutts-Trotter, was wrong in principle. Leave to appeal from those orders should be granted, and the appeal from them allowed. The orders joining the State and removing Mr Babb and Mr Coutts-Trotter should be set aside, and in lieu thereof the State’s motion should be dismissed, with costs.

15. [80]

    Although he had to come to this Court to correct the erroneous decision below, the applicant has succeeded only in part and on grounds not articulated by him. In circumstances where he is unrepresented, the costs unnecessarily inflicted on the respondents will exceed the recoverable costs to which the applicant might otherwise be entitled. There should therefore be no order as to costs in this court, to the intent that each party bear its own costs.

16. [81]

    I agree with the orders proposed by Payne JA and Simpson AJA.