JURISDICTION	:	SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION	:	NOYE & ANOR -v- GWILLIAM [2000] WASC 206

CORAM	:	MASTER SANDERSON

HEARD	:	10 AUGUST 2000

DELIVERED	:	24 AUGUST 2000

FILE NO/S	:	CIV 1849 of 1999

BETWEEN	:	JEFFREY HOWARD NOYE
First Plaintiff
 
LINDSAY GORDON RODDAN
Second Plaintiff
 
AND
 
EDWARD CLAYTON GWILLIAM
Defendant 

Catchwords:
Practice and procedure - Application for leave to amend statement of claim - Turns on its own facts
Legislation:
Limitation Act
Rules of the Supreme Court, O 21 r 1, r 5(5)
Result:
Application for leave refused
Leave to replead

Representation:
Counsel:
First Plaintiff	:	In person
Second Plaintiff	:	In person
Defendant	:	Mr T Darbyshire
Solicitors:
First Plaintiff	:	In person
Second Plaintiff	:	In person
Defendant	:	Kott Gunning

Case(s) referred to in judgment(s):

Commonwealth Life Assurance Society v Brain (1935) 53 CLR 343
Little v Law Institute of Victoria (No 3) [1990] VR 257
Morgan v Banning, unreported; FCt SCt of WA; Library No 990199; 21 April 1999
Northern Territory of Australia & Ors v Mengel & Ors (1996) 185 CLR 307
Wan v Sweetman (1998) 19 WAR 94

Case(s) also cited:

Bridgetown-Greenbushes Friends of the Forest Inc v Executive Director of the Department of Conservation and Land Management (1997) 18 WAR 126
Cabassi v Vila (1940) 64 CLR 130
Coe v Commonwealth (1979) 24 ALR 118
Dalgety Australia Ltd v de Vahl Rubin, unreported; FCt SCt of WA; Library No 5485; 24 August 1984
Danby v Beardsley (1880) 43 LT 603
Gibbons v Duffell (1932) 47 CLR 520
Jingellic Minerals NL v Abigroup Ltd (1992) 7 WAR 566
Mann v O'Neill [1996] 191 CLR 204
Marrinan v Vibart [1962] 3 All ER 380
Nationwide News Pty Ltd v Wiese (1990) 4 WAR 263
Raleigh v Goschen [1898] 1 Ch 73
Roy v Prior [1971] AC 470
Varawa v Howard Smith Co Ltd (1911) 13 CLR 35
Watson v M'Ewan [1905] AC 480

1	MASTER SANDERSON:  The writ of summons in this matter was issued on 2 August 1999.  A statement of claim was endorsed on the writ and although it contained only ten paragraphs it ran to 24 pages.  By chamber summons dated 25 August 1999 the defendant applied to strike out the statement of claim.  The matter came on for a case management conference on 1 September 1999 and Registrar Powell programmed the strike out application through to a special appointment.  On 15 September 1999 the plaintiffs lodged an amended statement of claim.  The statement of claim was amended pursuant to O 21 r 1.  On 4 October 1999 the defendant applied to strike out the amended statement of claim.  The matter came on before me in chambers on 15 October 1999.  On the plaintiffs' application I ordered, inter alia, that the plaintiffs have leave to file and serve a minute of further amended statement of claim within 14 days.  The matter was adjourned to 3 November 1999 to allow consideration of this minute of further amended statement of claim.
2		On 29 October 1999 the plaintiffs filed a chamber summons seeking an extension of time for filing of a reamended statement of claim.  This chamber summons was returnable on 3 November 1999.  Both chamber summonses came on for hearing on that date.  Both were adjourned until 12 November 1999.  When the matters came on on that date they were programmed through to a special appointment.  That order was made by consent.  A date was provided for the special appointment, but that proved to be unsuitable to the defendant.  The special appointment was relisted for 17 January 2000, but that too proved to be unsatisfactory to the defendant and that special appointment was vacated.
3		The matters came on again in chambers on 8 February 2000.  By now the parties were dealing with a minute of proposed amended statement of claim dated 11 November 1999.  Leave to amend in terms of that minute was refused.  Leave was given to file and serve a minute of substituted statement of claim by 3 March.  In fact, an amended minute of proposed substituted statement of claim was filed on 7 March.  That is the document which is presently before the court.  The statement of claim has grown progressively throughout its various manifestations.  It now runs to 158 paragraphs and 78 pages.  The defendant says that the statement of claim is not a proper pleading and leave should not be given to amended in terms of the minute.  The defendant's objections go not only to form, but to substance.  It is said that some of the causes of action, even if properly pleaded, could not for various reasons be maintained.  The plaintiffs, on the other hand, concede that the present statement of claim is not in a proper form.  They submit that, given more time, it can be put in an acceptable form and, in effect, they seek leave to file a further amended minute of proposed substituted statement of claim.
4		The question then is whether leave to further replead the statement of claim ought be granted and, if so, whether leave ought be limited to certain specific causes of action.  Consideration of this question requires a detailed analysis of the statement of claim to ascertain what causes of action in fact are being pleaded.
5		The defendant is, and was at all material times, a police officer with the Western Australian Police Service.  The first plaintiff was at all material times a detective senior sergeant in the same service.  He is now retired.  The second plaintiff describes himself in the pleading as "a farmer".  The first 83 paragraphs of the amended minute of proposed substituted statement of claim of 7 March 2000 (which I will hereafter refer to as "the minute") relate to the issue of certain search warrants.  I can illustrate the pleading in relation to these search warrants by quoting par 8 and par 9 of the minute which provide a representative sample of the pleading:
"8.	On 30 July 1993, the Defendant obtained, or was responsible for obtaining, a search warrant under Section 711 of the Criminal Code ('the first search warrant') in relation to the Second Plaintiff's Storage Unit for the alleged offence of 'Conspiracy to Steal', which was issued specifically to search for 'documentation, diamonds, gem stones, records and cheque butts' by way of a sworn complaint to ground a search warrant giving these items as the object of the intended search.
9.	The Defendant falsely and maliciously swore the grounds in the said complaint to ground the search warrant by falsely stating in his own handwriting that 'I, Paul Stefan Schubert take oath and say as follows:  I have received information that Lindsay Gordon Roddan has property stored at the address given in this warrant.  The CIB Break Squad have already executed a search warrant on Roddan's unit and have verified the property contained therein, since 1992.  Other evidence is available that Roddan and a Robert Gardiner had units storing property at these premises prior to 1992.  Roddan is the main suspect in a major conspiracy investigation involving the stealing of Argyle Diamonds.  Clear evidence is available to show  Roddan has sold a large number of stolen diamonds and evidence is sought by way of documentation regarding these transactions.  I hereby declare that this evidence is true.  I request you issue your warrant for the above purpose.' "
6		It is readily apparent that both of these paragraphs plead evidence and not material facts and are liable to be struck out.  If that was not specifically conceded by the plaintiffs, there was no argument to the contrary put by them.  The question of the form of the pleading can then be put to one side.  Paragraph 10 of the minute pleads that the complaint to ground the search warrant was signed by a named individual.  Paragraph 11 pleads the execution of the search warrant and par 12 pleads that the goods seized pursuant to the search warrant did not fall within the description of goods mentioned in the warrant itself.  Paragraph 13 pleads that the defendant at no time had reasonable grounds for believing that the goods referred to in the search warrant were in fact in the second plaintiff's possession.  Paragraph 15 is then in the following terms:
"15.	The Defendant by so conducting himself as aforesaid, has wilfully breached his lawful obligations in executing his public duties and has acted with spite and malice toward the Second Plaintiff."
7		Paragraph 16 pleads that the search warrant was executed "without reasonable and probable cause".  Paragraph 17 pleads that the initiation and execution of the search warrant were activated by malice.  Paragraph 18 pleads that, as a consequence of the defendant's actions, the second plaintiff has suffered loss and he seeks an order that "the search warrant and subsequent search was invalid".  Paragraphs 19 through to par 22 deal with the goods seized during the search pursuant to the warrant and the alleged failure of the defendant to account to the second plaintiff for those goods.
8		Paragraphs 25 through to par 29 deal with the arrest of the second plaintiff by the defendant on 10 August 1993.  It is not clear from the pleading what cause of action arises from these paragraphs.  They do not appear to be central to the narrative, nor do they appear to give rise to any pleaded cause of action.
9		Paragraphs 30 through to par 46 deal with what the defendant referred to as "the second search warrant".  It is not clear from the pleading what cause of action arises from these paragraphs.  It is pleaded that certain firearms seized pursuant to the search warrant were damaged.  But the damage is not particularised and no claim in respect of the damage is made in the prayer for relief.  It would appear that the cause of action is based in misfeasance in public office.  There is nothing in the pleaded facts which could give rise to a claim for malicious prosecution in relation to this second search warrant.
10		In relation to this cause of action and in relation to a number of other causes of action, the defendant says that the limitation period has expired and the claim is now statute barred.  On that basis, counsel for the defendant submitted that leave to replead in relation to the second search warrant and a number of other like causes of action should be refused.  I will deal with this limitation question below but first I will detail the remaining claims raised by the plaintiffs.
11		Paragraph 47 through to par 60 deal with what might be referred to as "the third search warrant".  Once again, it is difficult to ascertain what cause of action is being put against the defendant.  It appears the claim is for misfeasance in public office:  see par 56 of the minute.  There is no claim for malicious prosecution and it is doubtful whether one could be sustained on the facts pleaded.
12		Paragraph 47 to par 60 relate to "the third search warrant" and par 61 through to par 73 relate to "the fourth search warrant".  These paragraphs suffer from the same difficulties I have outlined earlier.  In addition, the pleading in relation to the fourth search warrant appears also to include a claim that certain goods were stolen from the second plaintiff during the course of the execution of the search warrant.  No separate claim for conversion is pleaded.  As I understand the pleading in relation to the third and the fourth search warrant, both are claims based upon misfeasance in public office.
13		Paragraph 74 and par 75 deal with the opposition by the defendant to the grant of bail to the second plaintiff after his arrest on 10 August 1993.  These paragraphs do not disclose any cause of action.  It may be, the cause of action said to arise is either in malicious prosecution or misfeasance in public office.
14		Paragraph 76 through to par 83 deal with the seizure of a Porsche Coupe.  No cause of action appears to arise out of the pleaded facts.  Paragraph 84 through to par 88 deal with the second plaintiff's application for bail made on 12 August 1993.  Although it is not clear from the pleading, the claim in relation to this bail application appears to be based either on malicious prosecution or misfeasance in public office.  Paragraph 89 through to par 92 deal with a further application for bail and the same comments can be made.
15		Paragraph 95 through to par 102 amount to an extensive pleading of evidence.  Insofar as it is possible to ascertain any cause of action, what the second plaintiff appears to be saying is that the defendant maliciously made a false deposition against him.  If that is what is being pleaded, there is no such cause of action known to the law and the plea cannot stand.  If the plea of the making of a false deposition relates in part to a claim for malicious prosecution then perhaps the allegedly false deposition is relevant and perhaps it will form part of a cause of action.  But it is not open to the second plaintiff to plead a cause of action based simply on a false deposition.
16		Paragraph 105 to par 109 of the minute deal with allegedly false reports provided by the defendant to one Inspector Robbins.  This appears to be a claim based in misfeasance in public office.
17		Paragraph 110 to par 126 detail representations allegedly made by the defendant to Inspector Robbins which led to four complaints being made by Inspector Robbins against the first and second defendants.  It is said that the representations made by the defendant to Inspector Robbins were false.  So far as I can ascertain, these paragraphs maintain a claim based upon malicious prosecution.
18		Paragraph 130 to par 136 of the minute relate to certain indictments presented by the Director of Public Prosecutions to the District Court on 5 December 1994.  The claims are clearly based on malicious prosecution.  Inter alia, the defendant complains that it is not clear from par 135 and par 136 whether or not it is said that the Director of Public Prosecutions elected not to proceed with the indictments or whether some other charge or "complaint" is said to have been withdrawn.  I mentioned this aspect of the pleadings specifically as it seems to me it is a point properly made.
19		Paragraph 137 through to par 144 deal with disciplinary charges brought against the first plaintiff while he was a serving police officer.  The claim is based in malicious prosecution.  The defendant says, given that the proceedings were disciplinary proceedings, it is not open to the court to make a finding of malicious prosecution.
20		The elements of the tort of malicious prosecution were considered by Parker J in Wan v Sweetman (1998) 19 WAR 94.  His Honour adopted what was said by the Full Court of the Supreme Court of Victoria in Little v Law Institute of Victoria (No 3) [1990] VR 257 and set out the elements that must be established to sustain a cause of action of malicious prosecution, as follows (at 101):
"1.	The proceedings complained of were instituted or continued by the defendants.
2.	The defendants instituted or continued the proceedings maliciously.
3.	The defendants, in instituting or continuing a proceedings, acted without reasonable or probable cause.
4.	The proceedings instituted by the defendants were terminated in the plaintiff's favour.
5.	The plaintiff suffered damage referable to one or more of three heads of damage namely damage to the person, property or reputation."
21		If the plaintiffs wish to maintain a cause of action for malicious prosecution they must plead material facts to satisfy each of the elements of the cause of action.  I find it very difficult to see how a cause of action in malicious prosecution could lie in relation to a search warrant.  Even assuming for the purposes of the pleading summons that the warrant was issued based upon the defendant's false testimony and activated by malice there are no "proceedings" as such.  Consistent with that view I can see no basis upon which a cause of action in malicious prosecution could arise in relation to the four search warrants.  Nor can I see how a claim for malicious prosecution can arise with respect to the two bail applications detailed in par 84 to par 88 and par 89 to par 92.  The same reasoning applies in relation to the second plaintiff's complaints about the depositions and the allegedly false reports.  To my mind, a claim based in malicious prosecution could not lie in relation to either of these two matters.
22		The position in relation to the complaints, the indictments and the disciplinary charges is a different matter.  It is true that these proceedings were not instituted by the defendant.  But it may be that some vicarious liability could attach to the defendant, given the circumstances in which these proceedings were issued.  In the absence of any proper pleading it is difficult to be more precise.  However, it seems to me that it may be open to the plaintiffs to maintain a claim in malicious prosecution based on vicarious liability:  see Commonwealth Life Assurance Society v Brain (1935) 53 CLR 343 per Dixon J at 379.
23		The elements of the tort of misfeasance in public office were considered by the High Court in Northern Territory of Australia & Ors v Mengel & Ors (1996) 185 CLR 307 where the Court said (at 347):
"It may be that analogy with the torts which impose liability on private individuals for the intentional infliction of harm dictate the conclusion that, provided there is damage, liability for misfeasance in public office should rest on intentional infliction of harm, in the sense that that is the actuating motive, or on an act which the public officer knows is beyond power and which is calculated in the ordinary course to cause harm.  However, it is sufficient for present purposes to proceed on the basis ... that liability requires an action which the public officer knows is beyond power and which involves a foreseeable risk of harm."
24		Based upon this formulation of the test, the elements of the tort are:
1.	there is the doing of some act by an individual;
2.	the individual is a public officer;
3.	in doing the act the public officer intends to cause harm to the plaintiff;
4.	the risk of harm to the plaintiff is foreseeable;
5.	the public officer knows that the act is beyond his power; and
6.	the plaintiff suffers loss as a consequence of the acts done by the public officer.
25		If the plaintiffs wish to maintain a cause of action against the defendant for misfeasance in public office then they must plead all the elements of the tort.  In particular, they must plead material facts which establish that the defendant knew or ought to have known what he was doing was beyond power.  Whatever other failings may be apparent from the statement of claim, it is clear that there is no attempt to plead knowledge on the part of the defendant.
26		It may be possible for the plaintiffs to plead a cause of action in misfeasance in public office in relation to each of the search warrants, in relation to the opposition to the applications for bail and in relation to the complaints and indictments.  I have difficulty seeing how a cause of action could arise with respect to the Porsche and in relation to the depositions and the false reports.  However, final determination of whether or not a cause of action can be properly pleaded in relation to any of the matters raised in the present minute must wait a further version of the statement of claim.
27		Finally, I return to the question of whether or not it is open to the plaintiffs to plead the matters raised in the minute, given the defendant's submission that causes of action are statute barred.  For their part, the plaintiffs sought to rely on O 21 r 5(5).  That rule is in the following terms:
"An amendment may be allowed under paragraph (2) notwithstanding that the effect of the amendment will be to add or substitute a new cause of action if the new cause of action arises out of the same facts or substantially the same facts as a cause of action in respect of which relief has already been claimed in the action by the party applying for leave to make the amendment."
28		The scope of amendments permitted by this rule has been the subject of much debate.  In Morgan v Banning, unreported; FCt SCt of WA; Library No 990199; 21 April 1999, the Full Court gave careful consideration to the scope of the rule.  Wheeler J, with whom other members of the court agreed, put the position as follows (at 11):
" ... If the defective endorsement appearing on the writ when issued, is not of a type which is capable of encompassing amendments sought to be made after the expiry of the limitation period, so that the amendments truly 'add' an additional and time‑barred cause of action (rather than particularising, clarifying, or expanding one already instituted) then, where the leave to amend is granted or not, the new action remains time‑barred.  Whatever the rules of court may provide, an action which is in fact instituted out of time is able to be defeated by reliance upon the Limitation Act, which the court has no power to override, whether by a procedural rule of 'relation back' or otherwise.
The clearest observations on this point are those of Toohey J, with whom Dean J agreed, in Wardley Australia Ltd v State of Western Australia (1992) 175 CLR 514 at 559 ‑ 562, where his Honour rejected the view that Weldon v Neal was no more than a 'rule of practice', and expressed the opinion that where an amendment seeks to introduce an 'admittedly new cause of action' a court has no power to ignore any statutory limitation period governing the bringing of that cause of action.  Although these remarks were strictly obiter, they appear to me to stem from well understood principles governing the relationship between statutes and the rules of court and I would respectfully adopt them.  Those remarks also make sense of the occasional references in the authorities to the 'power' rather than the 'practice' of the court in permitting amendments after the expiry of limitation periods, including those which appear in Weldon v Neal itself."
29		Her Honour went on to examine what is meant by the phrase "cause of action" in the sense that the phrase is used in r 5(5).  This was also a matter which was taken up by Owen J in his reasons for decision.  In determining whether or not amendments should be permitted, it is necessary to ascertain what cause of action was set out in the original endorsement on the writ.  In this context "cause of action" means what basket of facts was raised which was said to give rise to a right to relief.  If the new facts sought to be pleaded fall within the original basket of facts then the amendment should be permitted.  If they do not and the limitation period has expired, then leave to amend should be refused.  But there is a safety net.  If leave to amend is given and a limitation defence is pleaded, that defence can be raised at trial and is not an abuse of the process.  Rule 5(5) cannot override the Limitation Act.  In that sense, the grant or refusal of leave to amend is not in any way determinative of the rights of the parties.
30		The statement of claim which was endorsed on the writ is not an easy document to understand.  However, assuming that it does not raise the claim for conversion pleaded in relation to a number of the causes of action now raised, I would still be inclined to give leave to amend to allow such claims to be pleaded.  If the defendant then wishes to plead the Limitation Act he is free to do so.  At trial, the question of limitation can be fully considered.  That, I think, is a preferable approach rather than to attempt to decide the matter on a pleading summons.
31		The defendant's position in relation to the application for leave to amend was that leave should be refused and that the action should be struck out.  Counsel made the point that the writ of summons in this matter was issued on 2 August 1999 and 12 months later the plaintiffs are nowhere near having an acceptable pleading before the court.  There is some force in that submission.  There is a limit to the length of time the defendant must endure the plaintiffs' fruitless attempts to organise their case.  Nonetheless, I am not satisfied that the point has been reached where I should put the plaintiffs out of court.  However, the plaintiffs now need to be mindful that time is passing and that they cannot indefinitely produce unacceptable pleadings.
32		I will hear the parties as to the precise form of orders.