Richardson v State of Queensland
[2015] QDC 30
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- Unreported Judgment
- Richardson v State of Queensland[2015] QDC 30
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Richardson v State of Queensland[2015] QDC 30
Richardson v State of Queensland[2015] QDC 30
DISTRICT COURT OF QUEENSLAND
CITATION: | Richardson v State of Queensland [2015] QDC 30 |
PARTIES: | RONALD JAMES RICHARDSON (plaintiff) v STATE OF QUEENSLAND (first defendant) and SAMUEL J. BAIN (second defendant) |
FILE NO/S: | D998/2014 |
DIVISION: | |
PROCEEDING: | Application |
ORIGINATING COURT: | District Court, Brisbane |
DELIVERED ON: | 20 February 2015 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 10 October 2014 |
JUDGE: | McGill SC DCJ |
ORDER: | The claim as against the second defendant be dismissed, and the second defendant be removed as second defendant to the proceeding;The statement of claim filed 24 March 2014 be struck out;The plaintiff have leave to file and serve an amendment Statement of Claim within 56 days, pleading a cause of action against the first defendant;The claim against the first defendant be struck out unless an amended statement of claim be filed by the plaintiff within 56 days. |
CATCHWORDS: | MALICIOUS PROCEDURE AND FALSE IMPRISONMENT – Malicious prosecution – claim against Crown prosecutor in relation to conduct of prosecution – whether covered by statutory exclusion of liability. Director of Public Prosecutions Act 1984 s 25. Agar v Hyde (2000) 201 CLR 552 – cited. Colbran v State of Queensland [2007] 2 Qd R 235 – considered. Deputy Commissioner of Taxation v Salcedo [2005] 2 QdR 232 – cited. General Steel Industries Inc v Commissioner for Railways (1964) 112 CLR 125 – cited. Hamcor Pty Ltd v State of Queensland [2014] QSC 224 – considered. Love v Robbins (1990) 2 WAR 510 – considered. Nye v The State of New South Wales [2003] NSWSC 1212 – cited. Rich v CGU Insurance Ltd (2005) 79 ALJR 856 – cited. Riches v Director of Public Prosecutions [1973] 1 WLR 1019 – considered. |
COUNSEL: | The plaintiff appeared in person (by video link) J S Brien for the defendants |
SOLICITORS: | The plaintiff was not represented Crown Solicitor for the defendants |
- [1]This is an application for the plaintiff’s statement of claim to be struck out under r 171 of the UCPR, or in the alternative for summary judgment for the first and second defendants under r 293. The proceeding was commenced by a claim and statement of claim filed 24 March 2014, claiming $325,000 as damages for malicious prosecution, misleading and deceptive conduct and false pretences. A notice of intention to defend and defence by both defendants was filed on 1 May 2014, and the application which ultimately came before me was filed on 9 July 2014. At the time the application was filed the plaintiff was serving a term of imprisonment, and the application was mentioned on 30 July, 28 August and 4 September before it came on for hearing before me on 10 October, when the plaintiff appeared by video link.
Background
- [2]An indictment was presented in this court against the plaintiff charging him with dishonestly applying to his own use and to the use of others between 25 October 2002 and 8 April 2003 property belonging to Lewis Concrete Reinforcements (Gold Coast) Pty Ltd while he was an employee of that company, and the property was of a value of more than $30,000. The trial commenced on 17 February 2014, and on 25 February 2014 a jury found him not guilty of the charge. The second defendant, who is employed as a prosecutor in the Office of the Director of Public Prosecutions, was the Crown prosecutor at the trial.
Applicable rules
- [3]Rule 171 of the UCPR permits the court to strike out a pleading or part of a pleading if it discloses no reasonable cause of action, is frivolous or vexatious, or is otherwise an abuse of process of the court. A pleading will be struck out under this rule if there is no possibility that there can be a good cause of action, or that the claim pleaded is so obviously untenable that it cannot possibly succeed: General Steel Industries Inc v Commissioner for Railways (1964) 112 CLR 125 at 129. If the deficiency is simply as to the formulation of the pleading, a court will generally strike out but with liberty to re-plead; if on the other hand it appears that the deficiency is one which cannot be cured by filing an amended pleading, the appropriate course is to strike out both the pleading and the proceeding.
- [4]Rule 293 provides for a defendant to apply to the court after the filing of a notice of intention to defend for judgment against the plaintiff in respect of all or part of the plaintiff’s claim. The court may give judgment for the defendant on all or part of the plaintiff’s claim, and make such other order as is appropriate, if the court is satisfied the plaintiff has no real prospect of succeeding on all or that part of the plaintiff’s claim, and there is no need for a trial of the claim or that part of the claim. The test is to be applied without any gloss on the words used in the rule: Deputy Commissioner of Taxation v Salcedo [2005] 2 Qd R 232 at [11]. The application of the test looks to the outcome of a future trial, and accordingly it is necessary to bear in mind that the pleadings at the trial may be different from the pleadings at the time of the application; what matters for an application under r 293 is not whether a good cause of action or defence has been pleaded, but what is going to happen if there is a trial. In these circumstances courts require a reasonable degree of confidence about the outcome before they will give judgment under this rule: Agar v Hyde (2000) 201 CLR 552 at [57]; Rich v CGU Insurance Ltd (2005) 79 ALJR 856 at [18].
Statutory exemption
- [5]The defendants seek to advance this application first on the basis of the provisions of the Director of Public Prosecutions Act 1984 (“the Act”) s 25. That section provides:
“No act or thing done or omission made by the Minister, the director or any person assisting the director for the purpose of giving effect to this Act or discharging, exercising or performing any function, power, authority or duty under this Act shall subject the Crown, the Minister, the director or any person to liability at law in respect thereof.”
- [6]Section 10 of the Act provides that the Director shall prepare, institute and conduct on behalf of and in the name of Her Majesty criminal proceedings, and s 23(1)(a) permits so many Australian lawyers as necessary to be appointed to be Crown prosecutors to assist the Director in the discharge of the Director’s functions. So a Crown prosecutor conducting a prosecution on indictment in the District Court is performing a function under the Act, and what is done by the prosecutor is done for the purpose of giving effect to the Act. On the face of it then whatever the second defendant did in relation to the conduct of the prosecution was an act or thing done or omission made by the second defendant in performing a function under the Act, and for the purpose of giving effect to the Act, and it would fall within the protection afforded by s 25.
- [7]Privative clauses of this nature in statutes are not unfamiliar. For example, s 28 of the Plant Protection Act 1989, excluding liability at law for any act or thing done or omitted to be done pursuant to the Act, or for any act or thing done or omitted to be done bona fide for the purposes of the Act and without negligence, was considered by the Court of Appeal in Colbran v State of Queensland [2007] 2 Qd R 235. In that case WilliamsJA referred to various High Court decisions construing the terms of particular clauses, and quoted a passage from Coco v The Queen (1994) 179 CLR 427 at 436, where it was said:
“Statutory authority to engage in what otherwise would be tortious conduct must be clearly expressed in unmistakable and unambiguous language. Indeed, it has been said that the presumption is that, in the absence of express provision to the contrary, the legislature did not intend to authorize what would otherwise have been tortious conduct. But the presumption is rebuttable and will be displaced if there is a clear implication that authority to enter or remain upon private property was intended.”
- [8]The last part of that quote related to the particular statutory authority under consideration in that decision; in substance the Court was saying that the presumption was rebuttable and will be displaced if there is a clear implication that otherwise tortious conduct is authorised.
- [9]In Colbran, the section provided immunity from liability in respect of any act or thing done or omitted to be done pursuant to the Act, or done or omitted to be done bona fide for the purposes of the Act and without negligence. His Honour interpreted the section as meaning that the former applied in relation to acts requiring specific authorisation pursuant to the Act to be lawful, and the latter applied in relation to acts not requiring such authorisation, which were done in order to achieve the purposes of the Act: [12]. He noted that on that reading of the section if an act was done for the purposes of the Act but negligently, the person suffering damage would not be deprived of a right to recover damages in tort. In that particular case, the act that was complained of was done for the purposes of the Act, but was not done in the exercise of any statutory power conferred by the Act; it was done pursuant to an agreement reached with a landowner, so that there was no need to exercise a statutory power. Accordingly it was treated as falling within the second limb of the section, which did not to exclude liability for negligence. In the present case protection is provided in general terms for something done for the purposes of giving effect to the Act, even if negligently.
- [10]Jerrard JA, who delivered the principal judgment, noted that the High Court had consistently held against construing an immunity granted when exercising power to take steps under an enactment, or an immunity granted when exercising powers conferred by an Act or exercising the functions of a statutory body, to include an immunity for acts or things done or able to be done without any need for the exercise of a statutory power.
- [11]In the present case what was being done by the second defendant, on behalf of the Director of Public Prosecutions, was the conduct of a criminal trial in the District Court of Queensland in the name of the Queen. That is a matter regulated by the Criminal Code. The presentation of an indictment charging a person with an indictable offence is governed by s 560, which requires the charge to be reduced to writing in a document called an indictment, and requires the indictment to be signed and presented to the court by a Crown Law officer, a Crown prosecutor or some other person appointed in that behalf by the Governor-in-Council. The presentation of the indictment therefore was the exercise of the statutory power conferred relevantly on a Crown prosecutor by s 560. It came to be exercised by a particular individual prosecutor because that person had been appointed under the Act to that position, for the purpose of assisting the Director in performing the function of instituting criminal proceedings in the name of Her Majesty.
- [12]The form of the indictment is further regulated by s 564 of the Code. Section 590 requires the indictment be presented by the Director of Public Prosecutions or a Crown prosecutor not later than six months after the date on which the person was committed for trial, although there is power to extend that time. There are other provisions of the Code which deal with the conduct of the trial on the indictment. In the same way, the conduct of a particular criminal trial by an individual prosecutor is for the purpose of assisting the Director in performing the function of conducting criminal proceedings in the name of Her Majesty.
- [13]The Code also provides, in chapter 70, for prosecutions brought by private persons, as it is described, for indictable offences. This requires the leave of the court under s 686, which also contains special provisions as to the title and content of the initiating document, which is termed an information. It seems to me to follow therefore that the presentation by a Crown prosecutor of an indictment, and the conduct of the prosecution pursuant to that indictment, involve the exercise of statutory power, under both the Act and the Criminal Code, and the case is not excluded from the operation of s 25 by the limitation applied by the court in Colbran.
- [14]The decision in Colbran was applied by DaltonJ in Hamcor Pty Ltd v State of Queensland [2014] QSC 224. That case involved the application of s 129 of the Fire and Rescue Service Act 1990, which was in similar terms to the legislation considered in Colbran. Her Honour decided that the provision extended to protecting the State of Queensland on the ground that that was a person in the form of a body politic pursuant to the Acts Interpretation Act 1954 s 32D(1). She also held that the act complained of as tortious in that case, the application of large quantities of water to a fire, was an act done pursuant to the provisions of the Fire and Rescue Service Act, and hence within the terms of the exemption in that section. Her Honour’s analysis is instructive, but too long to quote at length.
Analysis
- [15]I am not aware of any authorities specifically on the operation of s 25, but on the face of it, it operates to protect the Director of Public Prosecutions, the second defendant, and indeed the State of Queensland from liability in law in respect of any act or omission by, relevantly, the second defendant in the conduct of the prosecution.
- [16]There are provisions in other States dealing with Crown prosecutors, which provide for an exemption from liability for things done for the purpose of executing any relevant law: see Director of Public Prosecutions Act 1986 (NSW) s 35; Director of Public Prosecutions Act 1990 (ACT) s 33A; Director of Public Prosecutions Act 1973 (Tas) s17; Director of Public Prosecutions Act 1991 (WA) s33. See also Director of Public Prosecutions Act 1953 (C’th) s 32A. These sections are all expressed in different terms from the Queensland section, and generally are not wide enough to exempt liability of the State or Territory. It does appear however that it is a widespread view of the legislatures of Australia that there should be no personal liability of Crown prosecutors.
- [17]This is also supported by judicial statements. In Love v Robbins (1990) 2 WAR 510 the Western Australian Full Court expressed the view that absolute immunity was necessary to secure independence of the prosecutor, and to stem unmeritorious claims. In that case the court dismissed an appeal against the striking out of a statement of claim and the dismissal of an action against two Crown prosecutors, one who prosecuted the plaintiff in a trial of a charge of fraud, when he was acquitted, and one who prosecuted him in a subsequent trial of charges of perjury and fabricating evidence, in relation to the earlier trial, when he was convicted. One of the grounds on which the court upheld the decision was that the prosecutors were immune from suit in relation to the conduct of proceedings in which they acted as counsel.[1] As a decision of an intermediate court of appeal, I should follow this decision, and it indicates that no action will lie against the second defendant even apart from s 25.
- [18]In Riches v Director of Public Prosecutions [1973] 1 WLR 1019, the Court of Appeal upheld the striking out, as disclosing no reasonable cause of action, of a claim for malicious prosecution against the Director of Public Prosecutions in England in respect of a prosecution. A charge of fraud was brought against the plaintiff and tried on assize where the plaintiff was convicted, but the conviction was quashed on appeal. The decision of the court was based on the proposition that, in circumstances where the prosecution was launched on the advice of counsel within the director’s office, where the evidence before the magistrates was sufficient to cause them to commit for trial, and where the evidence at the trial was sufficient for the jury to convict, it would be utterly impossible for a trial judge to find that there was any want of reasonable and probable cause for the prosecution: p 1022 per Davies LJ.
- [19]Stephenson LJ at p1025 endorsed comments made by Ormerod LJ in Abbott v Refuge Assurance Co Ltd [1962] 1 QB 432 at 450‑1 as showing the independent duty of prosecuting counsel and the fact that he is not an instrument of the person who initiates the prosecution. It was said to follow that the Director of Public Prosecutions, or any other prosecutor, was not ordinarily responsible for any malice on the part of prosecuting counsel; it would appear equally to follow that prosecuting counsel is not responsible for any malice that may exist on the part of any other person who was involved in initiating the prosecution.
- [20]Under these circumstances, it is not surprising that instances of actions for malicious prosecution against Crown prosecutors are rare, although such an action succeeded against the Director of Public Prosecutions in Nye v The State of New South Wales [2003] NSWSC 1212. In that case the plaintiff was tried and acquitted on a charge of murder, with the case against him turned on the evidence of a police informant. It was held that the evidence of the informant was so obviously unreliable that there was no reasonable and probable cause for bringing the proceeding, and indeed that the fact that the proceeding was brought notwithstanding that the prosecution case was objectively so weak was sufficient evidence of malice on the part of the director.
- [21]In my opinion s 25 applies in relation to the claim brought against the second defendant; it provides the second defendant with a complete defence against any liability at law in respect of his conduct of the prosecution of the plaintiff. The plaintiff’s case as pleaded speaks about the criminal trial, but also alleged that the second defendant “at no time investigated the charge against the plaintiff”. There is no reason to doubt that, because it was no part of a Crown prosecutor’s function to investigate a charge, or to conduct any “audit, enquiry, or investigation” into statements by prosecution witnesses or a schedule of fraudulent transactions produced by the complainants.[2] It was further alleged in paragraph 10 of the statement of claim that the second defendant was incompetent in his investigation particularly in relation to the lack of normally accepted audit and investigatory skills; presumably this is the other half of what is in substance an allegation that the second defendant either did not investigate the matter or did not investigate it properly.
- [22]In circumstances where it was no part of the function of the second defendant to investigate the matter as distinct from conducting the Crown case and there is no reason to think that he would have done so, this part of the statement of claim is simply without substance, unless confined to investigation as part of the conduct of the prosecution. There is no reason to think that he ever did, or ought to have done, anything other than conduct the prosecution. The statement of claim in paragraphs 11, 12, 13, 14, 15 and 16, alleged various deficiencies in the conduct of the case. Paragraph 17 alleged that the second defendant failed to enter a nolle prosequi. In substance the claim made against the second defendant is in relation to his conduct as Crown prosecutor of the prosecution. That in my opinion falls within the terms of s 25 of the Act, and as such he is protected by it from any liability at law. This is so, whether the cause of action relied on against him is malicious prosecution, “misleading and deceptive conduct or false pretences”, or indeed any other action in tort. It follows in my opinion that there can be no cause of action against the second defendant, and the plaintiff’s claim against him is bound to fail. There is no need for a trial of that claim. Judgment can be given for the second defendant under r 293, and an order can be made for the removal of the second defendant from the proceeding under r 69(1)(a).
- [23]With regard to the position of the first defendant, insofar as this relates to the conduct of the prosecution by the second defendant, in my opinion s 25 is wide enough also to protect the first defendant from any such liability: Hamcor Pty Ltd (supra). As the statement of claim is currently drafted, it is not obvious that any cause of action against the first defendant is relied on other than vicarious liability for wrongdoing by the second defendant. There was a reference, in the outline on behalf of the plaintiff in response to the application, to the existence of separate proceedings which he has brought against the Queensland Police Service and a particular police officer, presumably also for malicious prosecution. In principle however it might be open to the plaintiff to amend the pleading in the present matter in such a way as to rely as against the State of Queensland on vicarious liability for the actions of someone who was not within the protection afforded by s 25 of the Act.
- [24]In those circumstances, it is not appropriate at this stage to dismiss the action against the first defendant, but the statement of claim, which is based on the actions (or alleged inaction) of the second defendant, as it is presently drafted, does not disclose a cause of action which would be outside s 25. Accordingly it is bound to fail, and should be struck out under r 171, but with the ability to re-plead. In circumstances where I have concluded that the present statement of claim should be struck out as against the first defendant anyway, it is not necessary for me to go on and consider whether the present pleading properly pleads a cause of action for malicious prosecution, or any other cause of action in tort.
Conclusion
- [25]Accordingly the orders that I make are:
- The claim as against the second defendant be dismissed, and the second defendant be removed as second defendant to the proceeding;
- The statement of claim filed 24 March 2014 be struck out;
- The plaintiff have leave to file and serve an amendment Statement of Claim within 56 days, pleading a cause of action against the first defendant;
- The claim against the first defendant be struck out unless an amended statement of claim be filed by the plaintiff within 56 days.
- [26]I will hear submissions in relation to costs when these reasons are published, but I expect the appropriate order will be that the plaintiff pay the defendants’ costs of the application, and any costs of the proceeding specifically of the second defendant, to be assessed. I should also order that if, pursuant to my conditional order, the claim is struck out against the first defendant, the plaintiff pay the first defendant’s costs of the proceeding.
Footnotes
[1] Applying Munster v Lamb (1883) 11 QBD 588; Cabassi v Vila (1940) 64 CLR 130; and Giannarelli v Wraith (1988) 165 CLR 543. They noted Riches (infra) and Nettles v The Queen (1985) 21 DLR (4th) 103.
[2] In the defence it is alleged that investigations of the statements of the complainants, and the schedule of transactions produced by them, were in fact undertaken by others.