Meredith v State of New South Wales (No.4)

1. [1]

   These proceedings were commenced by the plaintiff pursuant to Part 10 of the Civil Procedure Act 2005 (“CPA”) on her own behalf and on behalf of a group constituted by members of the public who attended one of a number of identified music festivals held in NSW on and from 22 July 2016, and who, whilst on the festival grounds or in its surrounds, were stopped and directed by police officers to an area where a strip search was conducted.

2. [2]

   The plaintiff claims damages, including compensatory, aggravated and exemplary damages, arising from what is alleged to be the unlawfulness of the strip search, the resultant assault, and the false imprisonment constituted by the plaintiff’s detention for the purpose of the strip search.

3. [3]

   The proceedings are fixed for an initial hearing on 5 May 2025, with an estimate of four weeks. That initial hearing will encompass the entirety of the plaintiff’s claim and a number of common questions which have been determined by the Court to be those appropriate to be considered at that time.

Notice of Motion

1. [4]

   On 12 December 2023, the defendant filed a Notice of Motion seeking, relevantly, the following relief:

2. [5]

   At the hearing of the proceedings, counsel for the State informed the Court that the State was, in substance, seeking an order that the paragraphs be struck out. He indicated that the State did not object to an order that the plaintiff be permitted to replead those paragraphs, in the event that they were struck out.

3. [6]

   The pleading, the subject of the Motion, is the Further Amended Statement of Claim filed on 30 March 2023, pursuant to leave being granted on 16 March 2023 (“FASOC”).

Further Amended Statement of Claim

1. [7]

   The relevant paragraphs, the subject of the Motion, are in the following form:

2. [8]

   It is relevant and important to note that the phrase “… practice or pattern of conduct” used in [68A.4] is further explained by reference to specific paragraphs of four published reports of the Law Enforcement Conduct Commission (“LECC”) into the conduct of police officers undertaking strip searches. As well, a report of the NSW Coroner, which would be available to the NSW Police, is also referred to at the identified paragraphs.

3. [9]

   The full reports were not tendered in evidence on the hearing of this Motion, but the defendant annexed extracts of the nominated paragraph to its written submissions.

4. [10]

   In paragraph 71 of the Further Amended Statement of Claim (“FASOC”) the plaintiff claims exemplary damages.

5. [11]

   In paragraph 74 she sets out “Particulars of Exemplary Damages” which are in the following form:

Pleading Principles

1. [12]

   In considering the submissions to which I will shortly turn, it is necessary to keep in mind the appropriate legal principles dealing with pleadings and, in particular, the role of particulars within those pleadings.

2. [13]

   At the heart of these principles are the following:

3. [14]

   In considering the application of these general principles, it is also important to keep in mind that, in these proceedings, the defendant will be in a better position to know the details of the police operations and deployments which in fact occurred at the Music Festivals provided to police officers prior to their participation in the relevant operations. Further, at least at this stage of the proceedings, many of these details will be unknown to the plaintiff.

Submissions of the Defendant

1. [15]

   The defendant submits that paragraphs 68A to 68D are, on their face, deficient. It submits that the terms used are vague, or susceptible to more than one meaning, that material facts are omitted, that the paragraphs present “rolled up” conclusions, that the paragraphs are vague, or at least unclear because of reference to other documents (including Inquiry reports), that they contain a significant amount of narrative material because of those references, with the consequence that the paragraphs present a confusing mix of a variety of alternatives.

2. [16]

   This description of those paragraphs, the defendant submits, demonstrates that, in accordance with the ordinary principles of proper pleading, that this part of the FASOC is embarrassing because it is confusing, it causes prejudice and does not reveal with clarity what the case is which the State is required to meet.

3. [17]

   Dealing with the paragraphs on an individual basis, the defendant submits with respect to paragraph 68A that:

4. [18]

   The State notes that references to further particulars provided by the plaintiff which refer it to reports of the LECC and the NSW Coroner, do not constitute an adequate particularisation of material facts supporting, or grounding, the claim for exemplary damages. The State also submits that particulars cannot be a substitute for the pleading of material facts.

5. [19]

   With respect to paragraph 68B, which in substance pleads the knowledge of the State by the senior officers of the NSW Police Force who were responsible for authorising strip searches at music festivals, the State submits that the use of the description “senior officers” is, without more, a term of vagueness which is susceptible to many meanings. In particular, the State draws attention to the fact that the use of that term, in conjunction with the pleading of authorisation of the use of strip searches at music festivals, amounts to a nonsense because it is the legislation which authorises the carrying out of strip searches and provides the preconditions for such strip searches to be lawfully undertaken.

6. [20]

   The State also submits that the use of the phrase “… subject of widespread media commentary …” together with the pleading that a review or an inquiry “… might be in prospect or was under consideration …” were “hopelessly vague”.

7. [21]

   Other criticisms are made of, in essence, the generality with which this paragraph is pleaded and the manner of the pleading of the allegation of actual knowledge within the Police Force.

8. [22]

   With respect to paragraph 68C, which deals, in general terms, with the failures of senior police officers to act appropriately having regard to their state of knowledge, the State submits that what is in truth pleaded is a failure by the “senior officers” to exercise reasonable skill and care to ensure that the relevant statutory obligations with respect to strip searches were undertaken. The failures are said to be in the provision of adequate training and adequate supervision of operations at music festivals. The State submits that these are, in substance, broad allegations of negligence, which do not contain any of the requisite elements of such a tort, which result in an unintelligible pleading which effectively conceals a cause of action in negligence.

9. [23]

   As well, the State points to the breadth of the pleading which it submits, in essence, involves an allegation of the breach of any and/or all of the legislative requirements relating to strip searches without, the State submits, any factual basis pleaded for such allegations.

10. [24]

    Particular difficulties are identified with the use of the term “ensure”, the effect of which, it is submitted, is to allege that the “Senior Officers” must have failed to act reasonably because the “appropriate” result of police officers complying with the law had not been achieved.

11. [25]

    The State submits that that the overall lack of clarity in this paragraph is exacerbated because there is no pleading of any relevant counter-factual circumstances setting out what the senior officers ought to have done in the exercise of reasonable care.

12. [26]

    The final paragraph, 68D, is a pleading of “causation”.

13. [27]

    The State submits that the use of the term “failing correctly to observe” with respect to the legislative provisions is embarrassing because it is not the same as an allegation of “failing to ‘comply with the provisions’ of the legislation”.

14. [28]

    The State further submits that one of the difficulties with this pleaded allegation is that it is vague because no time frame is identified, and there is no linking of any particular act or omission by the senior officers individually or collectively to the tortious conduct of the undisclosed police officers undertaking the various strip searches, so as to anchor the pleading of causation to the conduct of the senior police officers.

15. [29]

    The State also submits that the reference in paragraph 68D.2 to the torts committed against group members, the details of which are not specifically pleaded, serve only to exacerbate an already confusing pleading.

Submissions of the Plaintiff

1. [30]

   It is unnecessary to repeat at length the submissions of the plaintiff. It is sufficient to note that the plaintiff contended, having regard to the contextual facts and circumstances surrounding this representative proceeding, that the pleadings were adequate and appropriate, and did not cause any prejudice to the State by reason of any generality or vagueness, if such existed.

Discernment

1. [31]

   The challenged paragraphs deal only with a claim for an award of exemplary damages. The State did not suggest that such a claim could not be made nor that the claim being made was itself an abuse of process.

2. [32]

   In order to consider the State’s arguments, it is appropriate to consider what a claim for exemplary damages may include.

3. [33]

   In Adams v Kennedy [2000] NSWCA 152; (2000) 49 NSWLR 78 at [36], Priestley JA (with whom Sheller and Beazley JJA agreed) said with respect to an award of exemplary damages which was challenged on appeal, this:

4. [34]

   His Honour’s remarks do not specifically identify the “officials of the State” who were “responsible for the overseeing of the police force”, nor did he suggest that an award of exemplary damages was unavailable in the absence of specific identification.

5. [35]

   These remarks were to the same effect as Lord Hutton’s remarks in Kuddus v Chief Constable of Leicestershire Constabulary [2002] 2 AC 122 at 149, where his Lordship said:

6. [36]

   In NSW v Ibbett [2006] HCA 57; (2006) 229 CLR 638, the High Court (Gleeson CJ, Gummow, Kirby, Heydon and Crennan JJ) rejected an attack by NSW on the decision of Priestly JA in Adams, saying at [54]-[56]:

7. [37]

   The High Court upheld the approach which permitted a court to consider in formulating an award of exemplary damages, not just the conduct of an individual police officer, but of those who were responsible for that conduct.

8. [38]

   It follows from these authorities that it is open to the plaintiff to claim, as she does in paragraphs 68A through to 68D of the FASOC, that conduct on the part of senior officers of the police force can form a part of the factual matrix relevant to the assessment of a claim for exemplary damages. This includes senior officers who were responsible for, or perhaps who have given directions with respect to, the way in which attendees at music festivals are to be searched, including where and when searches are to take place, or else who have been responsible for the training and education of, or lack of training and education of, police officers who are going to implement the approach to attendees at the music festival.

9. [39]

   The complaints articulated at [17] above centre upon the absence of the use of precision in the language chosen, particularly where it is said that there is no pleading of material facts which then makes plain what the imprecise language means.

10. [40]

    Three things need to be kept in mind in considering these complaints. The first is that the impugned pleadings are not articulating a stand-alone cause of action in tort. They are stated to be, and are, particulars of conduct relevant to the plaintiff and group members’ claim for exemplary damages. The second matter is that they are particulars given, at an early stage of representative proceedings, which puts the defendant on clear notice that the claim for exemplary damages will, in addition to the conduct of the individual police officers concerned, include the conduct of those whose actions caused, or else failed to prevent, the offending conduct at the heart of the proceedings.

11. [41]

    The third matter is that what was or was not done by way of training, supervision and the conduct of operational orders is well known to the defendant. It presently has more knowledge about all these matters than does the plaintiff. Its knowledge extends to each of the nominated music festivals. Given that the NSW Police Force is a structured and disciplined body, the defendant’s knowledge can be taken to include the level, position or rank of the police officers responsible for the operations being undertaken at the nominated music festivals. To require the plaintiff’s particulars to be more specific, at this stage of the proceedings, is unrealistic.

12. [42]

    Having regard to the nature and context of the proceedings, I do not accept that the pleadings which, in essence, constitute particulars of conduct, are vague, and likely to give rise to any confusion and thereby constitute an abuse of process. The defendant, in substance the NSW Police, know exactly who the senior officers were who were responsible for the conduct of policing operations at the music festivals nominated as part of the proceedings in whichever police district those festivals occurred. Their records would note which police officers held which positions and which police officers were allocated which duties. As well, police records would note, either by reference to any training actually conducted, or else by reference to job descriptions, those senior officers responsible for the training and supervision of police officers who were undertaking the policing tasks at the nominated music festivals.

13. [43]

    Having regard to the context, namely the provision of particulars of a claim for exemplary damages, I do not accept the State’s submissions that the use of either of the phrases “substantial detachments from NSW Police” or “senior police officers” is vague. The fact that there is no specification by quantity, rank, designation or by job title or description does not lead to an abuse of process because it is not a matter of attributing fault to any particular senior officer or identified officers. The description is sufficient to bring the claim for exemplary damages within the principles described above.

14. [44]

    I am equally unpersuaded that the use of the phrase “practice or pattern of conduct” is productive of any difficulty for the State. The phrase is no more than an overarching description given to the totality of individual conduct by police officers, which cannot be explained as a mere coincidence. The provision of further particulars by reference to specific paragraphs of published reports by the LECC, or the NSW State Coroner, are more than adequate for the State to understand and assess the claim for exemplary damages being made against it. I am unpersuaded that an abuse of process has been demonstrated.

15. [45]

    It is inevitable in representative actions that some pleadings will be more broadly expressed than they will be in respect of individual actions. This does not mean that they constitute an abuse of process.

16. [46]

    I also note that there was no evidence which suggested that there was any actual prejudice to the defendant from such vague and imprecise language. Whilst it is not necessary for such evidence to be led in order to establish abuse of process in pleadings, there are circumstances in which such evidence may powerfully demonstrate an abuse of process.

17. [47]

    The State’s submissions with respect to paragraph 68B of the FASOC have some similarities with it’s submissions with respect to paragraph 68A. The vagueness and lack of precision about the term “senior officers” and “widespread media commentary” in my view, when considered in the context of the pleading, do not amount to an abuse of process. It is a publicly known fact that the NSW Police, at all relevant times, had a media unit, the role of which included the monitoring of media publicity and commentary on the activities of the NSW Police. If there was “widespread media commentary” as alleged in paragraph 79 B.3(b)(ii), then such media commentary would have come from the attention of the media unit and those officers to whom that unit passed on the material or a summary of it. The generality of the pleading is not an abuse of process, and the State is not prejudiced by it.

18. [48]

    Generally, I am of the opinion that the attack on paragraph 68B fails for reasons similar to those expressed with respect to paragraph 68A. There is an exception to that conclusion which relates to sub-paragraph 68B.3(b)(iv). The terms of that sub-paragraph allege, as a particular of the actual or constructive knowledge of the defendant, that it knew at an unspecified time that a review or inquiry (of a kind similar to an LECC inquiry) “… might be in prospect or was under consideration”.

19. [49]

    This sub-paragraph contains many alternative possibilities which are not capable of being usefully narrowed by reference to a more precise time. It refers to an unascertained state of knowledge i.e., that the inquiry might be in prospect, or was under consideration presumably by people other than senior police officers. This part of the pleading is, I am satisfied, an abuse of process.

20. [50]

    With respect to paragraph 68C, it is to be observed that the two sub-paragraphs are pleaded in a similar way: one addressing the inadequacy of training, and the other addressing the inadequacy of supervision. The State’s submission that a further and separate tort of negligence is being apparently advanced cannot be accepted. The use of the phrase “… failed to exercise reasonable skill and care” comes within that part of the pleading referring to the plaintiff’s and group members’ claim for exemplary damages. In that context, it is no more than a qualitative description of the inadequacy of police conduct of a kind sufficient to permit an award of exemplary damages. The pleading is not, contrary to the State’s submissions, unintelligible. Because this is not a pleading of a stand‑alone cause of action in negligence, it is unnecessary for the plaintiff to, and it would be inappropriate for her to, plead any counter-factual circumstances.

21. [51]

    I am not satisfied that paragraph 68C of the FASOC amounts to an abuse of process.

22. [52]

    Finally, it is necessary to consider paragraph 68D of the FASOC, which is a pleading that the matters in the previously pleaded paragraphs, which are the subject of this judgment (being paragraphs 68A, 68B and 68C of the FASOC), “were a cause …” of the conduct of the police officers who conducted the strip searches which are the subject of the claim. The pleading of causation is in a common form – the conduct in the identified paragraphs was a cause of the torts committed for which damages are sought. Given that I have not been persuaded, except for sub-paragraph 68B.3(b)(iv) of the FASOC that there is any vagueness or uncertainty to amount to an abuse of process in paragraphs 68A, 68B and 68C of the FASOC, I am unable to conclude that paragraph 68D is inappropriately pleaded as the defendant contends.

23. [53]

    The defendant has failed to satisfy me that, with the exception of paragraph 68B.3(b)(iv) of the FASOC, the pleading, the subject of the Motion, ought to be struck out.

24. [54]

    For these reasons, I would make the orders set out below.

Costs

1. [55]

   This was a separately argued Notice of Motion. Costs should follow the event. I do not regard the success of the defendant on one small particular in paragraph 68B of the FASOC as justifying any other order for costs.

Orders

1. [56]

   I make the following orders:

   1. (1)

      Paragraph 68B.3(b)(iv) of the Further Amended Statement of Claim be struck out.

   2. (2)

      Grant leave to the plaintiff to re‑plead that paragraph providing that any further pleading be filed and served within 28 days of the date of this judgment.

   3. (3)

      Otherwise dismiss the Notice of Motion filed 12 December 2023.

   4. (4)

      Defendant to pay the plaintiff’s costs of the Notice of Motion filed on 12 December 2023.