Doueihi v State of New South Wales

1. [1]

   By a further amended statement of claim filed 25 February 2020 the plaintiff seeks damages against the State of New South Wales in respect of two incidents involving the NSW Police. As a result of those two incidents the plaintiff seeks damages for trespass to a property in which he was residing and for misfeasance in public office.

2. [2]

   By a notice of motion filed 19 May 2020 the State of New South Wales seeks to strike out paragraphs 35-40 of the further amended statement of claim. Those paragraphs contain the pleading which asserts a misfeasance in public office.

3. [3]

   The first incident, called by the plaintiff the “Burwood Police Station Incident”, occurred on 8 November 2014. It is set out in paragraphs 3-16 of the pleading.

4. [4]

   The plaintiff pleads that at the time he was involved in a dispute over the will of his mother with his two sisters and his brother. One of his sisters is alleged to have been married to a police officer at Burwood Police Station.

5. [5]

   The plaintiff pleaded that on 8 November 2014 a substantial number of police officers attended at his residence and rang the doorbell. There were said to be 16-20 of them and they did not identify themselves by name. The plaintiff pleads that he did not open the door to them, and one of them left a card requesting him to contact Ashfield police.

6. [6]

   Later that day he attended at the Ashfield Police Station. He says he was asked by a police officer to hand over his backpack which contained documents relating to the will dispute, his keys and his mobile phone. The plaintiff says that he was then taken from Ashfield Police Station to Burwood Police Station and charged with assault occasioning actual bodily harm in relation to his brother-in-law Michel Doueihi, and stalk or intimidate intending to cause fear of physical or mental harm in respect of his sister Kathy.

7. [7]

   The plaintiff pleads that after he was charged with those offences the police demanded that he sign papers presented to him. He said that he was subjected to duress by, and was fearful of, the police officers when they demanded that he sign the papers presented to him.

8. [8]

   He pleads that, following the signing by him of a consent to an AVO which the police served upon him, he was permitted to leave the police station and was handed back his backpack, keys and telephone. He says that on subsequent inspection of his backpack the documents relating to the wills dispute were in a different order and several documents were missing.

9. [9]

   Finally he pleads that Burwood Local Court made orders in accordance with a consent he signed on that day.

10. [10]

    The second incident, called by the plaintiff the “Quest Apartments Incident”, took place on 9 February 2015.

11. [11]

    The plaintiff said that on around 9 February 2015 he suffered an electric shock in an apartment at the Quest Apartments at Mascot. He rang triple-0, and notified the hotel management that the police would be attending. He said that shortly afterwards ten police officers arrived. They did not identify themselves by name to him. The police officers demanded that the plaintiff wait outside the building with other police officers. He said that they spoke to him aggressively, they failed to explain the reason for their conduct towards him, they entered his apartment without his knowledge, they searched his motor vehicle, and they took his backpack from him for longer than 15 minutes. He said they did not ask for his consent to go into the apartment.

12. [12]

    The plaintiff pleaded that he felt fearful and intimidated by the police officers and acceded to their demand to wait outside the building under duress.

13. [13]

    The plaintiff then pleaded his claim for trespass in paragraphs 31-34 of the further amended statement of claim. The trespass related to the entry into the apartment by the police.

14. [14]

    Finally, he set out his claim for misfeasance in public office which was pleaded as follows:

15. [15]

    It is necessary also to set out those paragraphs of the pleading which are incorporated by reference above.

16. [16]

    The relevant paragraphs relating to the Burwood Police Station Incident are these:

17. [17]

    The relevant paragraphs relating to the Quest Apartments Incident are these:

Subsequent events

1. [18]

   The plaintiff was charged on a Field Court Attendance Notice with intentionally or recklessly damaging property being a speaker the property of Quest Apartments. He was also charged with stealing property being a Sony DVD player the property of Quest Apartments.

2. [19]

   An entry in the COPS record for 9 August 2018 records this as having occurred on 9 February 2015, the day of the Quest Apartments Incident. The police attended at the Quest Apartments in relation to the accused stealing a DVD player and damaging property. The record then goes on to say:

3. [20]

   The plaintiff was ultimately convicted at Waverley Local Court on 1 April 2015 of larceny and destroying or damaging property and was fined $300 in respect of each charge.

4. [21]

   On 16 April 2015 the plaintiff was convicted at Burwood Local Court of assault occasioning actual bodily harm and stalk or intimidating intending fear. He was fined $400 and $300 respectively.

Submissions

1. [22]

   The defendant submitted that the claim for misfeasance in public office lacks clarity such that the defendant does not know and cannot know the case it is to meet. The defendant submitted that the claim fails to identify with any precision the individual police officers said to have committed the tort; it fails to provide particulars of the relevant elements of the tort; and it fails to recognise that the plaintiff’s convictions in respect of the matters alleged to underpin the tort, tend against any prospect of success on the claim.

2. [23]

   Although the defendant’s written submissions drew attention to authorities concerned with summary judgment and asserted that the pleading meets the test in those authorities to permit the claim to be struck out summarily, counsel for the defendant confirmed at the hearing of the notice of motion that the application was one to strike out a pleading pursuant to r 14.28 Uniform Civil Procedure Rules 2005 (NSW) and not to seek summary dismissal of the claim. However, a relevant consideration is whether, if the pleading is struck out, the plaintiff should be permitted to re-plead the claim.

3. [24]

   The defendant submitted that the difficulties associated with the pleading mean that the defendant is not in a position to know whether it should accept vicarious liability for what is alleged against the relevant police officers.

4. [25]

   The defendant submitted that one of the fundamentals of the tort was the identity of the public officer who is alleged to have committed the act complained of. A further fundamental, it was submitted, was that the pleading must specify what the invalid or unauthorised act was that was done in purported discharge of the officer's public duty. The defendant submitted that the matters giving rise to the act being done maliciously or recklessly must be pleaded, and there must be some form of harm demonstrated to the plaintiff.

5. [26]

   The plaintiff submitted that, in relation to the identity of the police officers, there was sufficient material for the defendant to be able to identify the police officers from the COPS entries in relation to the Quest Apartments Incident. The plaintiff also submitted that the defendant’s solicitor was able to identify Constable Mackie in relation to the Burwood Police Station Incident.

6. [27]

   The plaintiff submitted that the present was a classic situation where the defendant was the party in possession of the relevant documents, but the plaintiff was in the position of needing to particularise his claim as best as he could. The plaintiff submitted that after interlocutory procedures have taken place such as discovery, the plaintiff would be in a better position to particularise his claim. He submitted that the complaint by the defendant is essentially a complaint about the particulars which the plaintiff has supplied and needs to supply.

7. [28]

   The plaintiff submitted that in relation to the identification of the unauthorised acts, the plaintiff’s position is that the unauthorised act was intimidation by the police officers. In relation to the Burwood Police Station Incident the plaintiff submitted that that was pleaded in paragraph 13 of the pleading. In relation to the Quest Apartments Incident, the plaintiff accepted paragraph 29 of the pleading needed to be re-pleaded to assert that the police intimidated the plaintiff.

Legal principles

1. [29]

   In Northern Territory of Australia v Mengel (1996) 185 CLR 307 the joint judgment of Mason CJ, Dawson, Toohey, Gaudron and McHugh JJ said at 347-348:

2. [30]

   In the same case, Deane J said at 370:

3. [31]

   In Sanders v Snell (1999) 196 CLR 329; [1998] HCA 64, the joint judgment of Gleeson CJ, Gaudron, Kirby and Hayne JJ said:

Consideration

1. [32]

   The first difficulty with the pleading concerns the grouping together of the police officers in relation to each incident. As Mengel made clear, the tort is one for which a public officer is personally liable. Before one reaches the issue of the vicarious liability of the State, it is necessary for the plaintiff to identify which individual officer or officers performed the unauthorised act. Not the least reason for that is because it must be shown that the invalid or unauthorised act was done intentionally or recklessly, with those mental states being linked to the infliction of harm.

2. [33]

   In Moder v Commonwealth of Australia; Sochorova v Commonwealth of Australia [2012] QCA 92; (2012) 261 FLR 396, Margaret Wilson AJA (with whom Muir and Fraser JJA agreed) said:

3. [34]

   In Golden v Littleproud [2019] NSWSC 120 Harrison AsJ made reference to the judgment of Margaret Wilson AJA in Moder, and went on to say at [79]:

4. [35]

   The pleading in the further amended statement of claim in the present case adopts a similar approach. In relation to the Burwood Police Station Incident it refers in paragraph 12 to five police officers in paragraphs 13-15 and various acts which those officers were alleged to have done, without specifying who they were and what each did.

5. [36]

   In relation to the Quest Apartments Incident paragraph 21 refers to ten police officers being present. Paragraphs 22-24, 28 and 30 then again refer to collective acts of those officers.

6. [37]

   A similar issue arose in Duke v State of New South Wales [2005] NSWSC 632. Justice Hidden said at [33]:

7. [38]

   The identification of the officers is effectively required by the provisions of the Law Reform (Vicarious Liability) Act 1983 (NSW). Part 4 of that Act relevantly provides:

8. [39]

   A similar issue arose in Duke. The position was set out by Hidden J as follows:

9. [40]

   In the present case, and bearing in mind that the joint judgment in Mengel said that “unless there is de facto authority, there will ordinarily only be personal liability”, vicarious liability is in issue in the present proceedings: s 9C of the Act. It is necessary for the Court to know if the proceedings are properly constituted having regard to s 9B(2) and (3). Further, s 9D cannot be satisfied until the issue of vicarious liability has been determined. In the absence of knowing which police officer committed which unauthorised or invalid act, vicarious liability cannot be determined.

10. [41]

    Although the pleading makes reference to s 9B(2) of the Act to allege that the defendant is vicariously liable, s 9B does not itself confer vicarious liability on the defendant unless the claim is a police tort claim. As sections 9C and 9D make clear, vicarious liability does not automatically attach to the acts alleged. Section 9E expressly preserves any common law which might preclude vicarious liability attaching to the defendant. That might be thought to be a reference, at least, to that portion of Mengel highlighted above at [29]. The plaintiff does not plead anything relating to authority.

11. [42]

    It is not an answer, as the plaintiff seeks to say, that the defendant has not denied vicarious liability. The defendant has not, thus far, been required to file a defence nor to make any decision about vicarious liability. It is not able to do so until the officers and the acts are properly pleaded.

12. [43]

    Nor is it an answer to these matters for the plaintiff to say that, either he is not able to identify the police officers more specifically than has been done in answer to particulars, or that the defendant has the means of knowledge of who those officers were. Rules 5.2 and 5.3 UCPR provide for discovery to ascertain the identity of prospective defendants and the discovery of documents from prospective defendants.

13. [44]

    The fact that the entry in the COPS record refers to a number of police officers, and the fact that the defendant’s solicitor spoke to Constable Mackie about what occurred at the Burwood Police Station Incident, does not advance the matter. Until the defendant knows which officers are said to have carried out the unauthorised acts with the necessary intention or recklessness, the defendant is not in a position to determine if it will accept vicarious liability for those acts and those officers. Without the plaintiff identifying the officers who are alleged to have carried out the unauthorised or invalid acts, the defendant cannot assume that the police in the COPS entry are the officers the subject of the plaintiff’s claim.

14. [45]

    The second difficulty the plaintiff has concerns the identification of the invalid or unauthorised acts which each of the officers is alleged to have committed. The plaintiff submitted that in each case it was an act of intimidation as paragraph 13 pleaded and (as counsel for the plaintiff accepted) paragraph 29 ought to have pleaded. The plaintiff made reference to s 545B of the Crimes Act 1900 (NSW) and s 13 of the Crimes (Domestic and Personal Violence) Act 2007 (NSW). It does not seem to me that those sections assist the plaintiff in the argument it wants to make that the Act in each case was intimidation.

15. [46]

    Intimidation, even when used in those Acts, is a conclusion that is drawn from particular acts of behaviour. A person may intimidate another by shouting at them or brandishing a weapon or speaking close to their face with a particular tone to their voice. Any of those acts might mean that an offence has been committed or that there has been some form of duress. In terms of the tort of misfeasance in public office, it does not advance an understanding of the act to say that it was one of intimidation. Although counsel for the plaintiff asserted that the act might be lawful but might be carried out in an unlawful way because intimidation was involved, it is difficult to see how such a lawful act would become unlawful by the means of its execution in the manner described.

16. [47]

    Although the plaintiff asserts that the act in each incident was intimidation, the pleading in paragraph 39b, “any or all of their conduct”, suggests particular acts rather than an overall act of intimidation.

17. [48]

    What seems to be the true situation appears from a number of parts of the pleading including paragraph 13 particulars (d) and (f) as well as paragraph 29, namely, that the plaintiff felt fearful and intimidated. As counsel for the plaintiff now concedes, such a pleading is inadequate for a proper pleading of the tort.

18. [49]

    The defendant sought to clarify the acts which the plaintiff relied upon as unauthorised or invalid acts in a request for particulars. Paragraphs 9, 22, 23 and 24 sought particulars of how particular matters set out in the statement of claim were alleged to be beyond power or for an ulterior or improper purpose. The answer provided in each case was that the paragraph was not a proper request for particulars but a request for legal exposition. It was inappropriate for the solicitors for the plaintiff to respond in that way when there was no pleading to the effect that the acts were unauthorised or invalid nor that they had been done with intention or recklessness to inflict harm on the plaintiff.

19. [50]

    The issue in dispute between the parties on the present notice of motion is not, as the plaintiff contends, a matter concerning further and better particulars. In that way, authorities such as Deemah Marble & Granite Pty Ltd v Sutherland [2001] NSWSC 829 and Street v Luna Park Sydney Pty Ltd [2006] NSWSC 533 do not need to be considered.

20. [51]

    The third difficulty for the plaintiff relates to the suffering of damage. Damage is an essential element of the tort. It may be reputational harm as in Obeid v Lockley [2018] NSWCA 71 at [28] and [153], it may be actual economic loss such as in Saunders v Snell at [3], or it may be both economic loss and personal injury as in Moder at [38]. Whilst the plaintiff has eschewed any personal injuries damages in the present case, the plaintiff does not plead that he suffered harm, damage or loss as a result of the alleged misfeasance. He pleads only in paragraph 40 that he is entitled to damages. But for what, one might ask, on the basis of the pleading? Damages are payable to compensate for damage, loss or harm. None is pleaded or identified.

21. [52]

    The matter of damage or harm is related to the unauthorised or unlawful act or acts because it is the carrying out of those acts intentionally or recklessly which must be shown to inflict the harm. Counsel for the plaintiff said that the plaintiff was not pointing to specific economic loss. Rather, he was seeking compensation “for the fact of the act” being the “interference with his … personal liberty”. The difficulty arising from that characterisation of the damages is that, in relation to both incidents, the plaintiff was arrested and charged with criminal offences, and was ultimately convicted and sentenced in relation to each of those offences. Any deprivation of his liberty could not, in the circumstances, sound in damages.

22. [53]

    In relation to the Burwood Police Station Incident, after being arrested and charged, he was told that he could not leave the police station until he signed some papers. One of the papers that he signed, and needed to sign, was his bail acknowledgment. He was not unlawfully detained until he did so.

23. [54]

    In relation to the Quest Apartments Incident, the evidence discloses that one reason the police attended at his apartment was as a result of an allegation by the manager of the apartments that the plaintiff had stolen a DVD player and had destroyed or damaged property. The police were entitled to investigate those matters, and it was in those circumstances that the events set out in paragraph 22 of the Further Amended Statement of Claim took place. The COPS report discloses that the plaintiff was arrested at the scene. He was ultimately convicted of those offences.

24. [55]

    It should be borne in mind that this tort, like allegations of fraud and dishonesty, is one which ordinarily involves serious allegations against those said to have performed unauthorised or invalid acts. In Three Rivers District Council and Others v Governor and Company of the Bank of England (No 3) [2003] 2 AC 1, Lord Millett said of the tort of misfeasance in public office at [184]:

25. [56]

    In my opinion, the pleading in paragraphs 35-40 of the further amended statement of claim does not disclose a reasonable cause of action, and it is an embarrassing pleading. It should be struck out.

Re-pleading

1. [57]

   The further question is whether leave should be given again to the plaintiff to re-plead.

2. [58]

   These proceedings first commenced on 23 August 2017. The plaintiff filed a document called “Statement of Claim” but it did not plead any cause of action. On a motion brought by the defendant, I struck out that statement of claim on 12 June 2018. The plaintiff was acting for himself but he claimed to have a pro bono barrister advising him. Because he was acting for himself I considered that he should be given one further opportunity to plead properly the claim he sought to bring.

3. [59]

   An amended statement of claim was filed on 9 July 2018. It was at least able to be discerned from that amended statement of claim what the plaintiff’s complaints were. Two of the complaints were the present complaints he makes being the Burwood Police Station Incident and the Quest Apartments Incident.

4. [60]

   At a later time the plaintiff retained his present solicitors who obtained leave to file the further amended statement of claim, the subject of this judgment.

5. [61]

   Although it is entirely unsatisfactory that the plaintiff is still seeking to plead properly the claims he wishes to bring some three years after the proceedings were commenced, I consider that the fact that he now has solicitors and counsel acting for him and that he has an unchallenged claim in trespass going forward, means that he should be given one further and final opportunity to get his pleadings into order, if he wishes to pursue the claim for misfeasance in public office.

Conclusion

1. [62]

   Accordingly, I make the following orders: