Wood v Queensland[2023] QSC 221

SUPREME COURT OF QUEENSLAND

An interlocutory application

1. [1]
   In this proceeding, the plaintiff (‘Mr Wood’) sues the State of Queensland in consequence of his having been arrested and charged with wilful damage and obstructing police.

2. [2]
   The current version of the claim, the amended claim filed 3 November 2022, seeks the following relief:

“Pure Mental Harm – $30,000,000.00

Financial Loss – $500,000.00

Malicious Prosecution – $60,000,000.00

Assault – $250,000.00

Fraud – $250,000.00

Destruction of Evidence – $25,000,000.00

False imprisonment – $10,000,000.00

False Arrest – $15,000,000.00”

3. [3]
   As initially commenced, there were four defendants to the proceeding, namely “the Queensland Government (DJAG)”, “the Queensland Police Service”, Daniel Egan and Michael Lee. Messrs Egan and Lee are police officers, the former being the officer who arrested and charged Mr Wood and the latter being an officer who acted as the prosecutor in connection with the charges. On 3 November 2022, Mr Wood filed the amended claim and an amended statement of claim. Relevantly, the amended claim removed the four original defendants and substituted the existing defendant, the State of Queensland.
4. [4]
   On 26 June 2023, Mr Wood filed an interlocutory application for the following orders:

2. “1.An order to amend the claim and statement of claim to remove the claim for damages for pure mental harm and replace it with a claim for aggravated damages under rule 375 and 376 of the Uniform Civil Procedure Rules 1999.
3. 2.An order to amend the claim and statement of claim to reinclude Daniel Egan, Michael Lee and the Queensland Police Service as defendants under rule 375 and 376 of the Uniform Civil Procedure Rules 1999.
4. 3.An order to amend the claim and statement of claim to add the complainant as the defendant under rule 375 and 376 of the UCPR.
5. 4.An order to amend the claim and statement of claim to add additional claims for damage under rules 375 and 376 of the Uniform Civil Procedure Rules 1999…”

5. [5]
   On 6 July 2023, the interlocutory application came on for hearing.
6. [6]
   There is no application made by the State of Queensland to strike out any part of the amended claim or the amended statement of claim.

Relevant background to the interlocutory application

7. [7]
   The wilful damage charge concerned events which were alleged to have occurred at the Bellbowrie shopping centre at approximately 7.35 am on Friday 28 September 2018. It was alleged that Mr Wood keyed the entire front right and rear right panel of a parked car belonging to the complainant, Annaliese Dowdle.^[1] Further allegations then led to the obstructing police charge. Broadly stated, it was alleged that, later on Friday 28 September 2018, Senior Constable Egan received a complaint from Ms Dowdle and located Mr Wood walking in a street near Ms Dowdle’s residence.^[2] When located, Mr Wood was alleged to have been verbally aggressive and refused to stop.^[3] On 15 October 2018, Senior Constable Egan arrested Mr Wood and placed him under arrest for wilful damage.^[4] Following his arrest, Mr Wood was alleged to have become argumentative and non-compliant in his demeanour and thus alleged to have obstructed police.^[5] Mr Wood was taken to the Indooroopilly Police Station. 
8. [8]
   On 8 June 2022, Mr Wood commenced this proceeding against the four previously identified initial defendants.
9. [9]
   The statement of claim contained the following allegations:

2. “1.On the 15^th of October 2018, [Mr Wood] was arrested and charged with Wilful Damage and Obstruct Police by Daniel Egan of the QPS.
3. 2.During the arrest Daniel Egan assaulted [Mr Wood].
4. 3.[Mr Wood] was taken to the Indooroopilly Police Station where he was refused his basic human rights including the right to call a lawyer and the right to be questioned.
5. 4.[Mr Wood] was then charged with wilful damage and obstruct police
6. 5.The defendant then falsified a number of documents relating to the matter including the QP9.
7. 6.The defendant then deleted evidence relating to the matter namely the CCTV footage of the incident in contravention of the QPD retention and disposal schedule.
8. 7.The defendant took a fraudulent statement from the compliant.
9. 8.The defendant attempted to prosecute [Mr Wood] knowing the prosecution had no possibility of success.
10. 9.It is alleged that the defendant acted fraudulently in an attempt to have [Mr Wood] found guilty of charges he was, in fact innocent of.

[Mr Wood] claims the following relief: Pure Mental Harm - $30,000,000.00

Financial Loss – $500,000.00

Malicious Prosecution - $60,000,000.00

Assault - $250,000.00

Fraud – $250,000.00

Destruction of Evidence - $25,000,000.00

False imprisonment - $10,000,000.00

False Arrest - $15,000,000.00”

10. [10]
    It may be observed that the statement of claim, in numerous instances, made simple references to “the Defendant” notwithstanding that, at the time of its filing, there were four defendants.
11. [11]
    On 7 September 2022, Crown Law wrote to Mr Wood pursuant to r 444 of the Uniform Civil Procedure Rules 1999 (Qld) (‘UCPR’). That letter materially stated:

“…

2. 5.On 8 June 2022, you commenced a proceeding by way of a Claim and Statement of Claim in the Brisbane Supreme Court. You have named the following four entities and persons as the defendants in the proceedings:

1. (a)
   The Queensland Government (DJAG)
2. (b)
   The Queensland Police Service
3. (c)
   Daniel Egan
4. (d)
   Michael Lee

The State’s Complaint

1. (a)
   Proper defendant

2. 6.‘The Queensland Government (DJAG)’ and ‘the Queensland Police Service’ are not legal entities – they cannot sue or be sued. These entities are departments of the Crown, which can sue or be sued under the title ‘State of Queensland’ under section 8 of the Crown Proceedings Act 1980…

….

2. 7.Daniel Egan and Michael Lee are police officers. Under section 10.5(2) of the Police Service and Administration Act 1990, an officer does not incur civil liability for engaging, or the result of engaging, in conduct in an official capacity. Instead, liability (if any is proven) attaches to the Crown (ie. the State of Queensland). On this basis, officers Egan and Lee have been unnecessarily included as defendants in the proceeding.
3. 8.Further, the only relief the Court can give (in the circumstances of this case) is damages. Accordingly, it is not necessary for the officers to be defendants to the proceeding. Any damages the Court may award in your favour, if you are successful, would be damages against the State, not against the officers.”

12. [12]
    By letter to Crown Law dated 13 September 2022, Mr Wood proposed to apply to the Court for leave to amend the claim and statement of claim to substitute “State of Queensland” as the defendant in place of the four defendants. The proposed amendment became the subject of a consent order made on 13 October 2022. On 3 November 2022, Mr Wood filed an amended claim and amended statement of claim. Relevantly, the amendments deleted the four defendants and substituted as a new defendant, the State of Queensland. The facts alleged in the amended statement of claim were the same facts alleged in the statement of claim.
13. [13]
    On 3 November 2022, Mr Wood also filed a document which was described as containing “further and better particulars of the incident” (‘the Particulars Document’).^[6] The content of the Particulars Document went well beyond the scope of further and better particulars, in that it included submissions as to the law and referenced allegations which were not concerned to elucidate, refine or clarify issues raised by the material facts alleged in the further amended statement of claim.
14. [14]
    The State of Queensland has not applied to strike out any part of the Particulars Document.
15. [15]
    Within the Particulars Document, Mr Wood relevantly contends:

    1. That his arrest on 15 October 2018 was unnecessarily aggressive;^[7]
    2. At the time of his arrest:
       1. he asked to see the warrant for his arrest and to be allowed to call his lawyer;^[8]
       2. he was told by Officer Egan that he would be allowed to call his lawyer when he reached the police station;^[9]
       3. Officer Egan informed Mr Wood that there was “evidence” of him committing a crime which he would be shown at the station;^[10]
    3. While marching Mr Wood out of the Bellbowrie shopping centre, Officer Egan threw him violently to the ground and knelt on him with his knee, such behaviour being unwarranted and unnecessary and constituting an unlawful and dangerous assault;^[11]
    4. Mr Wood was taken to the Indooroopilly Police Station where he was unnecessarily placed in a holding cell;^[12]
    5. Whilst in his cell, Mr Wood requested to be allowed to call a lawyer which request was denied by Officer Egan;^[13]
    6. Mr Wood made it clear to various police officers that he was willing to participate in an interview with his lawyer present;^[14]
    7. At no stage was Mr Wood given the right to call his lawyer or afforded his right to be questioned in the presence of his lawyer;^[15]
    8. At no stage was Mr Wood shown any evidence in relation to the charge of wilful damage;^[16]
    9. Officer Egan falsified a document described as a QP9 “in conjunction with Police Prosecutions, [Officer Lee], Senior Constable Christopher Leonard (Indooroopilly Police Station), [Officer] Shane Hancock (head of Indooroopilly Police Station at the time), and the Office of the Director of Public Prosecutions”;^[17]
    10. Officer Hancock thereafter falsified a statement about the retention of CCTV footage at the Indooroopilly Police Station with the aim of misleading the court as to the length of time for which CCTV footage was retained;^[18]
    11. Officer Egan conspired with Officer Lee in attempting to prosecute Mr Wood, fully aware of their inability to be successful at trial;^[19]
    12. Officer Egan obtained CCTV footage of the alleged incident with an illegal warrant;^[20]
    13. The footage of Mr Wood in custody at the Indooroopilly Police Station was deleted by Officer Hancock to protect Officer Egan;^[21]
    14. Officer Egan took a fraudulent statement from the complainant and “he conspired with her to do so”;^[22]
    15. Quotes for the repair of alleged damage to the complainant’s car were “falsified by the complainant”;^[23]
    16. Officer Egan, in conjunction with the complainant, Officer Leonard and Officer Hancock “added fraudulent information into the complainants (sic) statement with the intention of using it as a basis for securing a fraudulent conviction”. The fraudulent information was relevantly “the statement by the complainant that she saw [Mr Wood’s] vehicle and trailer firstly at the [Bellbowrie shopping centre] the morning of the incident, and secondly on her way home in a street down the road from her house where she allegedly saw [Mr Wood] pointing and laughing at her”.^[24]
16. [16]
    On 30 November 2022, the State of Queensland filed its defence.
17. [17]
    On 26 May 2023, Mr Wood sent an email to Crown Law which materially stated:

“…. I will be applying to have the original Respondents added back onto the claim as it has become clear from relevant case law that in a malicious prosecution claim, indemnity doesn't apply, a fact I’m sure you were aware of and intentionally misled me on.”

18. [18]
    At a review on 12 June 2023, Mr Wood was ordered to file any application to further amend the amended claim and amended statement of claim by, on or before 26 June 2023. The court requested the defendant’s legal representatives write to Mr Wood explaining the basis for the historical deletion of the four defendants.
19. [19]
    On 15 June 2023, Crown Law sent a letter by email to Mr Wood which materially provided:

“Dear Mr Wood

…

As explained in the r444 letter, there is no basis for including individual police officers in civil proceedings against the State of Queensland because under section 10.5(2) of the Police Service and Administration Act 1990, an officer does not incur civil liability for engaging, or the result of engaging, in conduct in an official capacity. Instead, liability (if any is proven) attaches to the Crown (ie. the State of Queensland).

…

In simple terms, s 10.5 of the PSA ensures that a police officer does not incur civil liability for engaging, or for the result of engaging, in conduct in an official capacity. If that protection applies, liability attaches to the State, which may (meaning its (sic) discretionary) recover contribution from the officer. That right to contribution is restricted to cases where the conduct was engaged in other than in good faith, and with gross negligence. To clarify, contribution is a remedy available to the State, depending on the facts of a matter, and arises solely between the State and the relevant officer/s.

Given the definitions of ‘civil liability (sic) and ‘engage in conduct in an official capacity’ in s 10.5 of the PSA, it is clear that the immunity in that section is intended to extend to all tortious liability for conduct in connection with the officer’s role as a police officer. There is nothing in the language of s 10.5 of the PSA that would support a more limited operation that excluded torts involving bad faith or malice. This position is supported by the State’s right to recover contribution, where the conduct engaged in was not in good faith or was grossly negligent.

The reference to a lack of good faith demonstrates that Parliament intended s 10.5 of the PSA to extend to tortious liability arising from conduct characterised as being in bad faith, such as malicious prosecution and misfeasance in public office.

….

Intention to join complainant as a defendant

In your email of 26 May 2023, a copy of which is enclosed, you have said that ‘I’ll also be adding the complainant Ms Dowdle to the claim which I can do according to a v nsw’.

There appears to be absolutely no basis on which Ms Dowdle should be a party to your claim. Ms Dowdle made a complaint to the police in relation to her car having been keyed at a shopping centre and provided a statement about the incident. It was Senior Constable Egan, upon viewing CCTV of the incident after the initial complaint was made, who formed the requisite ‘reasonable suspicion’ to arrest you without warrant. …

In the circumstances, Ms Dowdle had no discretion to bring a prosecution against you – such discretion rested with Senior Constable Egan, and the police prosecution, once all evidence was obtained in relation to the offence, the subject of the complaint.”

Consideration of issues raised by the interlocutory application

20. [20]
    The interlocutory application seeks orders pursuant to rr 375 and 376 of the UCPR. To the extent that the interlocutory application seeks the joinder of proposed defendants, the application calls for the exercise of a discretion and the merits of the case proposed to be advanced after joinder is a relevant consideration, at least where there are significant doubts attending the prospects of success of the proposed case.^[25] In the present case, the interlocutory application was not supported by any affidavit and there is no proposed form of further amended claim or further amended statement of claim.
21. [21]
    During the course of the hearing, Mr Wood tendered into evidence eight exhibits. The exhibits appeared to be directed to the merits of Mr Wood’s claims and may be described as follows:

    1. Exhibit 1 is a photograph of Mr Wood’s utility and trailer. The make and registration number of the utility are not apparent from the photo. Mr Wood submitted that the photograph demonstrated that his utility and trailer were “quite unique”;^[26]
    2. Exhibit 2 is an affidavit of Paul Artis (an automotive mechanical workshop manager) who deposed that Mr Wood’s Ford Ranger utility was in his workshop at Bellbowrie between 8 am on 27 September 2018 and 3.30 pm on 28 September 2018, when it was collected by Mr Wood. The complainant provided a statement in which she recalled that she “noticed Mr Wood’s car and trailer” in the Bellbowrie shopping centre carpark on the morning of the incident and later that afternoon saw that “Mr Wood was parked on a street”. Mr Wood relied upon exhibits 1 and 2 for the purpose of impugning the complainant’s credit by demonstrating that his Ford Ranger utility was in a workshop on the relevant date and at the relevant time, being during the morning of 28 September 2018;
    3. Exhibit 3 is a bundle of photographs of the complainant’s car which include damage to its left-hand side and rear. Mr Wood relied upon these photographs for the purpose of impugning the allegations that damage had been caused to the right-hand side of the complainant’s car;^[27]
    4. Exhibit 4 comprises quotes for repairs to the complainant’s car which include repairs to areas other than its right-hand side. Mr Wood relied upon these documents for the purpose of demonstrating that the complainant had made a claim for repairs to other areas. Mr Wood submitted that, according to the body worn camera footage at the time of the complaint, there was no claim made for any damage to the rear or left of the car or inside the car;
    5. Exhibit 5 is the Queensland Police Service court brief (‘the QP9’) which identifies the charge of wilful damage and the summary of alleged facts. Mr Wood noted that the QP9 stated that Mr Wood had refused an interview. He contended that this statement was a lie as, at the time of his arrest, he had retained Robertson O'Gorman Solicitors and was denied his right to call his lawyer and to be interviewed in the presence of his lawyer;
    6. Exhibit 6 is a bundle of emails in which a request was made of Queensland Police Service to provide audio/video footage taken on 18 August 2018 and 15 October 2018 in respect of police officers’ interactions with Mr Wood at the Indooroopilly and Roma Street Police Stations. Mr Wood relied upon these emails for the purpose of demonstrating that his repeated requests for discovery of the CCTV footage have been ignored.
    7. Exhibit 7 is a response to a request for footage of Mr Wood in the holding cells at the Indooroopilly Police Station on 15 October 2018 between 6 am and 10 am. That request was denied on the basis that such footage is only retained for a period of 50 days. Mr Wood submitted that this exhibit evidenced a lie by the relevant police officer, an Acting Senior Sergeant at the Indooroopilly Police Station. The lie was said to have been made in an attempt to pervert the course of justice and as part of a conspiracy to bring false accusations.^[28]
    8. Exhibit 8 is a statement of Officer Hancock, a police officer. Mr Wood submitted that the following statement, contained in exhibit 8, constituted perjury:^[29]

2. “5.CCTV cameras are installed within the station. There are 2 image storage computers at the station for this dedicated purpose. They have a memory capacity of up to 50 days. Unless a separate recording of images is taken from the storage computers, then recorded data is automatically deleted after the 50 days. This is the limitation of the device memory.
3. 6.There was no specific request or identified need to record the requested images of Ian Wood in respect to 15/10/2018, and as such a separate copy/recordings was not made. Original images were therefore deleted at the conclusion of the 50 days.”^[30]

The proposed joinder of the QPS and Officers Egan and Lee

22. [22]
    Section 10.5 of the Police Service and Administration Act 1990 (Qld) (‘the PSA Act’) provides as follows:

2. “10.5Civil liability of police officers and others for engaging in conduct in official capacity

1. (1)
   This section applies to each of the following—

1. (a)
   an officer;
2. (b)
   a staff member;
3. (c)
   a recruit;
4. (d)
   a volunteer;
5. (e)
   a person who, at the time the person engaged in conduct in an official capacity, was a person mentioned in any of paragraphs (a) to (d).

1. (2)
   A person to whom this section applies does not incur civil liability for engaging, or the result of engaging, in conduct in an official capacity.
2. (3)
   If subsection (2) prevents liability attaching to a person, the liability attaches instead to the Crown.
3. (4)
   If liability attaches to the Crown under subsection (3), the Crown may recover contribution from the officer, staff member or recruit or former officer, staff member or recruit who engaged in the conduct, but only if the conduct was engaged in—

1. (a)
   other than in good faith; and
2. (b)
   with gross negligence.

Note for subsection (4)—

There is to be no contribution from a volunteer or former volunteer.

1. (5)
   In a proceeding under subsection (4) to recover contribution, the amount of contribution recoverable is the amount found by the court to be just and equitable in the circumstances.
2. (6)
   In this section—

civil liability, of a person to whom this section applies for engaging, or for the result of engaging, in conduct in an official capacity, means liability of any type for the payment of an amount by the person because of—

1. (a)
   a claim based in tort, contract or another form of action in relation to the conduct or result, including, for example, breach of statutory duty or defamation and, for a fatal injury, includes a claim for the deceased’s dependants or estate; or
2. (b)
   a complaint made under a law that provides a person may complain about the conduct or result to an entity established under the law, other than a complaint to start criminal proceedings, including, for example, a complaint under the Justices Act 1886; or
3. (c)
   an order of a court to pay costs relating to a proceeding for an offence against a law in relation to the conduct or result, unless the proceeding was for an offence by the person.

….

conduct means an act or an omission to perform an act.

engage in conduct in an official capacity, by a person to whom this section applies, means engage in conduct as part of, or otherwise in connection with, the person’s role as an officer, a staff member, a recruit or a volunteer (as is applicable), including, for example, engaging in conduct under or purportedly under an Act.

volunteer means a person appointed by the commissioner to perform duties for the service on an unpaid voluntary basis on conditions decided by the commissioner.”

23. [23]
    The provision provides a statutory immunity from civil liability to individual police officers for their conduct in an official capacity and transfers liability to the State.^[31] Civil liability extends to liability of any type for the payment of an amount because of a claim in tort or another form of action in relation to the conduct. In the present case, Officers Egan and Lee have the benefit of the statutory immunity and no basis has been established for their joinder to the proceeding.
24. [24]
    Mr Wood placed particular emphasis upon the following passage from the joint judgment^[32] in A v State of New South Wales:^[33]

“For the reasons explained by the House of Lords in Glinski v McIver [1962] AC 726, justice requires that the prosecutor, the person who effectively sets criminal proceedings in motion, accept the form of responsibility, or accountability, imposed by the tort of malicious prosecution.  In so far as one element of the tort concerns reasonable and probable cause, the question is not abstract or purely objective.  The question is whether the prosecutor had reasonable and probable cause to do what he did; not whether, regardless of the prosecutor's knowledge or belief, there was reasonable and probable cause for a charge to be laid.  The question involves both an objective and a subjective aspect.”

25. [25]
    Mr Wood styled this paragraph as “a High Court ruling”^[34] which this Court was obliged to follow by joining the proposed defendants. I reject Mr Wood’s submissions. The relevant passage of A v State of New South Wales is concerned with one of the elements required to be pleaded as a material fact to establish the tort of malicious prosecution. The paragraph is not authority for the proposition that the prosecutor is to be joined as a party to any proceeding. I accept the State of Queensland’s submission that the decision in A v State of New South Wales is not relevant to, and does not in any way affect, the statutory immunity provided by s 10.5 of the PSA Act.
26. [26]
    To the extent that Mr Wood seeks to join “the Queensland Police Service”, the Queensland Police Service is not a legal entity which can be sued.^[35]

The proposed joinder of the complainant

27. [27]
    In A v State of New South Wales, the joint judgment relevantly observed:

27. “[34]
    …

The identification of the appropriate defendant in a case of malicious prosecution is not always straightforward.  ‘To incur liability, the defendant must play an active role in the conduct of the proceedings, as by “instigating” or setting them in motion’.

27. [35]
    In Martin v Watson [1996] AC 74, a woman made an allegation that her neighbour had indecently exposed himself to her whilst standing on a ladder in his garden.  She went to a police station and complained.  A detective constable laid an information against the neighbour.  At a hearing before the Magistrates' Court, the Crown Prosecution Service offered no evidence, and the charge was dismissed.  The House of Lords held that, since the facts relating to the alleged offence were solely within the complainant's knowledge, and that as a practical matter the police officer who laid the information could not have exercised any independent discretion, the complainant could be sued for malicious prosecution, and upheld an award of damages against her.  The complainant had ‘in substance procured the prosecution’.  The police officer to whom the complaint was made had no way of testing the truthfulness of the accusation.  Lord Keith of Kinkel quoted with approval a statement by McMullin J in the Court of Appeal of New Zealand, that a person may be regarded as the prosecutor if he puts the police in possession of information which virtually compels an officer to bring a charge.
28. [36]
    For present purposes, it is unnecessary to explore the circumstances in which, in an action for malicious prosecution, a complainant, rather than a police officer who lays an information or signs a charge sheet, will be regarded as the prosecutor.  The second respondent, in his evidence, acknowledged, and indeed asserted, that it was his decision, and his responsibility, to lay the charges.  He certainly did not act in haste, by laying the charges as soon as he became aware of the allegations. Almost five months elapsed between the making of the complaints and the laying of the charges.  A finding of the Children's Court, adverse to the appellant, preceded the charges by about six weeks.  No one suggested that the real prosecutors were the children, D and C.  Yet although in the present case it was not said that the conduct of the children put the second respondent in a position where he was virtually compelled to lay the charges, so that they, and not he, should be regarded as the true prosecutors, the case illustrates the fact that there are circumstances, of which accusations of sexual offences may sometimes provide an example, where the capacity of a police officer to verify information, and form an opinion about where the truth appears to lie, in a practical sense is very limited.”^[36]

28. [28]
    In the context of the malicious prosecution cause of action, Mr Wood appeared to submit that the complainant’s joinder was warranted because she had made an initial complaint to the police and then provided a statement, which according to his submission was knowingly false.
29. [29]
    The State of Queensland’s defence relevantly alleges that:

    1. Officer Egan received the complaint on 28 September 2018;
    2. The complainant nominated Mr Wood as a suspect because of an ongoing dispute between Mr Wood and the complainant’s family;^[37]
    3. Later that day, Officer Egan personally viewed relevant CCTV footage and video from which he recognised Mr Wood;^[38]
    4. Officer Egan noted that Mr Wood was wearing the same clothing in the CCTV footage as he had been wearing when he had stopped Mr Wood earlier in the day;^[39]
    5. Officer Egan exercised powers in the performance of his duty in circumstances where he reasonably suspected Mr Wood had committed the offence of wilful damage;^[40]
    6. On 28 January 2019, Officer Egan obtained a statement from the complainant;^[41]
    7. Exhibit 5 reveals the summary of facts for wilful damage and relevantly notes:

“[Mr Wood] was captured on CCTV walking over towards the victim’s car ... [Mr Wood] has approached the vehicle from the front right and whilst walking past has keyed along the entire front right and rear right panel of the vehicle causing substantial paint and panel damage. [Mr Wood] has continued walking past the victim’s vehicle and through the shopping centre.”^[42]

30. [30]
    There is nothing in the material relied upon by Mr Wood to suggest that, by reason of the initial complaint having been made by the complainant, Officer Egan was compelled to lay the charges. The State of Queensland’s defence acknowledges that it was the decision and responsibility of Officer Egan to lay the charges. Officer Egan appears to have laid the charges after having satisfied himself by reference to his own independent investigations made by reference to the CCTV footage.^[43] In that regard, the QP9 refers to the CCTV footage as the relevant evidence.
31. [31]
    Mr Wood has not established an arguable basis for the joinder of the complainant as a defendant in respect of the malicious prosecution claim or what are referred to as the false imprisonment or false arrest claims. There is no suggestion that the complainant was involved in any assault or destroyed evidence.
32. [32]
    The amended statement of claim contains an allegation of fraud. Mr Wood has alleged that Officer Egan took a “fraudulent statement” from the complainant. That allegation of itself is ambiguous as it does not make clear whether the fraudulent intent was held by Officer Egan or the complainant or shared between them. In his oral submissions, Mr Wood made clear that his contention is that “[the complainant] has provided a false statement in order to bring a false accusation against me which she has conspired with [Officer Egan] of the Queensland Police Service and [Officer Lee] of the Queensland Police Prosecutions to bring”.^[44] 
33. [33]
    It is admitted in the proceeding that on 15 October 2018, Officer Egan arrested Mr Wood and charged him with wilful damage and obstructing police. There is no suggestion in the material that the complainant’s statement existed when Mr Wood was arrested and charged. The defence alleges that the statement was obtained on or about 28 January 2019.^[45]  The complainant’s statement was not in evidence. I allowed Mr Wood to read out paragraphs three and four of the statement, which are to the following effect:

“I noticed Mr Wood’s car and trailer in the shopping centre carpark on this morning and it is normally parked there almost every morning when I arrive. … Whilst driving home, Mr Woods (sic) was parked on a street. I drove past on my way home and as I drove home after this incident I passed him and he waved and clapped at me as I drove past”.^[46]

34. [34]
    Mr Wood wishes to contend that these paragraphs of the complainant’s statement were not simply mistaken or the product of an erroneous recollection but rather knowingly false statements or lies made as part of a fraudulent conspiracy involving Officers Egan and Lee. He relied upon Exhibit 2 (the affidavit of his mechanic) to support that contention. I regard Mr Wood’s contentions as no more than mere assertions or conjecture. It is well established that allegations of fraudulent conduct, must be pleaded specifically and with particularity.^[47] No such case has been pleaded and no such case emerges with clarity from the material relied upon by Mr Wood. There was no material from which it could be properly inferred that the subject paragraphs of the statement were fraudulent as distinct from being the product of an honest mistake based upon a recollection some months after the alleged incident. Further, there was no pleading or articulation of the elements of a proposed claim in fraud or deceit arising out of a conspiracy between the complainant and Officers Egan and Lee. Notably, there was no pleading, or identification of facts from which it might be properly inferred, that there was a relevant agreement or combination between the complainant and Officers Egan and Lee to commit unlawful acts which resulted in concerted action with an intention to injure.^[48] Further, the causal basis on which Mr Wood might seek to claim damages against the complainant for any fraudulent conspiracy was not articulated.  That is a matter of some significance given that charges were laid on 15 October 2018 and there is nothing to suggest that the complainant had provided her statement at that time. For these reasons, I am not prepared to grant leave to join the complainant to the proceeding on the basis of these unparticularised, speculative allegations of fraud.

The claim for pure mental harm and aggravated damages

35. [35]
    Mr Wood seeks to remove the claim for damages for pure mental harm and replace it with a claim for aggravated damages. The State of Queensland does not oppose the plaintiff’s application to remove the claim for damages for pure mental harm. Mr Wood should have leave to delete that claim.
36. [36]
    Aggravated damages are “a form of general damages, given by way of compensation for injury to the plaintiff, which may be intangible, resulting from the circumstances and manner of the wrongdoing”.^[49] Although compensatory, aggravated damages are awarded when the harm done to a plaintiff by a wrongful act is aggravated by the manner in which the act was done.^[50] The State of Queensland submitted that aggravated damages is a remedy, not a separate cause of action but conceded that Mr Wood, by inference, already sought aggravated damages in respect of his causes of action.^[51] The inference relied upon by the State of Queensland was drawn by reference to the Particulars Document. The State of Queensland’s emphasis upon aggravated damages being a remedy as distinct from the cause of action was not to the point. A litigant who intends to claim aggravated damages should plead those damages so that evidence may be given in support of, and in opposition to, the claim.^[52] Once that point is appreciated, and given the concession by the State of Queensland, Mr Wood should be given leave to amend the amended claim and amended statement of claim to include a claim for aggravated damages. Rule 158(2) of the UCPR relevantly provides that if a party claims aggravated damages, the party’s pleading must contain particulars of all matters relied on in support of the claim. I am prepared to grant Mr Wood leave to include a claim for aggravated damages but on the basis that the Particulars Document contains the extent of the particulars he seeks to rely upon in support of that claim.

The additional claims for damage

37. [37]
    Mr Wood seeks to include new causes of action “including battery, malfeasance in public office, exemplary damages, parasitic damages, and various forms of illegality…”.^[53] In respect of those new causes of action, Mr Wood ultimately seeks relief in the following terms:

2. “4.That Mr Wood be given leave to amend the documents to claim damages for battery, malfeasance in public office, exemplary damages, parasitic damages, conspiring to bring false accusation, fabrication of evidence, attempting to pervert the course of justice, conspiring to compound an indictable offence, official corruption not judicial but relating to offences, perjury, corruption of witnesses (or in the alternative deceiving witnesses), and conspiring to defeat justice.
3. 5.That the Court refer Justice Martin and the matter of and evidence in Julie McEwan v The Commissioner of Taxation of the Australian Taxation Office and anors [2022] QSC 81 to the Crime and Corruption Commission for investigation based on sections 15, 18, 20, 22, 38 and 39 of the Crime and Corruption Act or, in the alternative, provide the court with the reasons for not doing so as required under section 40A of that act.
4. 6.That the Court refer Justices Mullins, McMurdo, and Flanagan and the matter of and evidence in Julie McEwan v Director of Public Prosecutions and anor [2022] QCA 81 to the Crime and Corruption Commission for investigation based on sections 15, 18, 20, 22, 38 and 39 of the Crime and Corruption Act or, in the alternative, provide the court with the reasons for not doing so as required under section 40A of that act.
5. 7.That the Court refer Ms Havas, Mr Van Grinsven, Crown Law, and the Department of Justice and Attorney-General to the Crime and Corruption Commission for investigation into their behaviour in this matter based on sections 15, 18, 20, 22, 38 and 39 of the Crime and Corruption Act or, in the alternative, provide the court with the reasons for not doing so as required under section 40A of that act.”

38. [38]
    As I have already observed, Mr Wood’s application was not supported by any affidavit material and did not rely upon any proposed form of further amended claim or further amended statement of claim. It is readily apparent from any cursory review of the material that the relief sought in the above quoted passage at paragraphs five and six has no relevance to the present proceeding. There is no discernible basis for the relief sought in paragraph seven of the above quoted passage. Leave should not be granted to include any of those claims.
39. [39]
    The proposed claim for battery is unparticularised. As I read the amended statement of claim and the Particulars Document, Mr Wood has alleged that during his arrest Officer Egan assaulted him and he has provided particulars to the effect that, while marching him out of the Bellbowrie shopping centre, Officer Egan threw him violently to the ground and knelt on him with his knee, such behaviour being unwarranted and unnecessary and constituting an unlawful and dangerous assault.^[54] Those particulars would seem sufficient to encompass allegations directed to the tort of battery as distinct from the tort of assault.^[55] If established at trial, the allegations may also be sufficient to attract an award of exemplary damages. In that regard, exemplary damages are punitive, not compensatory. They can be awarded in circumstances where the defendant’s conduct exhibited “conscious wrongdoing in contumelious disregard of the plaintiff’s rights”.^[56] However, they are also available in circumstances where there is no conscious wrongdoing or malice but there has been high handed, outrageous conduct which reveals contempt for the rights of others.^[57] In all of the circumstances I would grant leave to Mr Wood to amend to add a cause of action for battery and to claim the remedy of exemplary damages. However, the grant of leave is on the basis that the Particulars Document contains the extent of any particulars he seeks to rely upon in support of that claim.
40. [40]
    There was an unparticularised claim for “parasitic damages”. Mr Wood made no attempt to explain that claim, its proposed amount or manner of calculation.  On the basis of the material, I am not prepared to give leave to Mr Wood to make a claim for “parasitic” damages in addition to his claims for general, aggravated and punitive damages.
41. [41]
    That leaves for consideration the proposed new causes of action for damages for “… malfeasance in public office … conspiring to bring false accusation, fabrication of evidence, attempting to pervert the course of justice, conspiring to compound an indictable offence, official corruption not judicial but relating to offences, perjury, corruption of witnesses (or in the alternative deceiving witnesses), and conspiring to defeat justice”. There has been no attempt to produce a proposed pleading in respect of these suggested causes of action. The application was also not supported by any affidavit. Where a litigant seeks to make allegations involving malice or ill will, motive, intention or other condition of mind, those matters must be specifically pleaded, including any fact from which any of those matters are claimed to be in inference.^[58] Allegations of serious misconduct, like fraud, must be pleaded specifically and with particularity.^[59] Mr Wood seemed to rely on exhibits 3 and 4 as proof that the complainant had fabricated evidence. There is no substance in that contention. At best for Mr Wood, these exhibits might be called in aid by him at the trial in an endeavour to prove that there is evidence of damage to the complainant’s car which is unrelated to or inconsistent with her complaint. However, on the material before me, there is no basis for any suggestion that exhibits 3 and 4 are false documents or fabricated evidence. Based on the material before me, I am not satisfied that a pleading could be prepared which would comply with the pleading rules in relation to the proposed new causes of action. I am not prepared to grant Mr Wood leave to add the proposed new causes of action. 

Orders

42. [42]
    The orders I make are as follows:

    1. Mr Wood is granted leave to amend the amended claim and the amended statement of claim to:
       1. delete the claim for damages for pure mental harm;
       2. to include a claim for battery on the basis that the particulars of the claim for battery relied upon by Mr Wood are contained in the document being the further and better particulars filed 3 November 2022;
       3. include claims for aggravated and punitive damages on the basis that the particulars of all matters relied upon by Mr Wood in respect of those claims are contained in the document being the further and better particulars filed 3 November 2022;
    2. The application filed 26 June 2023 is otherwise dismissed.
43. [43]
    I will hear the parties as to costs.