Court of Appeal Supreme Court New South Wales

• Medium Neutral Citation: State of New South Wales v Konneh [2014] NSWCA 91
• Hearing dates: 26 March 2014
• Decision date: 31 March 2014
• Before: Macfarlan JA; Ward JA

Decision

The application for leave to appeal is dismissed with costs.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

• Catchwords: APPEAL - civil - application for leave to appeal - proceedings brought on plaintiff's own behalf and as representative proceedings seeking damages for wrongful arrest, false imprisonment and assault - primary judge dismissed motion to strike out parts of pleading alleging special rule of attribution of knowledge applicable to New South Wales Police Force - allegations that arresting police officers knew or must have known of unreliability of COPS computer system and should therefore have known that arrests not justified - primary judge's decision discretionary and on a matter of practice and procedure - no arguable error in trial judge's exercise of discretion - grant of leave would further delay hearing at first instance - leave to appeal refused
• Legislation Cited: Civil Procedure Act 2005 (NSW); Law Reform (Vicarious Liability) Act 1983 (NSW), s 8; Uniform Civil Procedure Rules 2005 (NSW), r 14.28; Young Offenders Act 1997 (NSW), s 31
• Cases Cited: Champtaloup v Thomas [1976] 2 NSWLR 264; House v R [1936] HCA 40; 55 CLR 499; In re the Will of F B Gilbert (1946) 46 SR (NSW) 318
• Category: Procedural and other rulings
• Parties: State of New South Wales (Applicant); Musa Konneh (Respondent)
• Representation: Counsel: M T McCulloch SC/D F Villa (Applicant); M B J Lee SC/M Nagy (Respondent); Solicitors: I V Knight, Crown Solicitor (Applicant); Maurice Blackburn Pty Ltd (Respondent)
• File Number(s): CA 2013/139996

Decision under appeal

• Jurisdiction: 9111
• Citation: Konneh v State of New South Wales (No.2) [2013] NSWSC 390
• Date of Decision: 2013-04-19 00:00:00
• Before: Garling J
• File Number(s): 2011/187125

Judgment

1 THE COURT: This is an application by the State of New South Wales for leave to appeal from the dismissal by Garling J of the State's application for an order striking out particular paragraphs of the plaintiff's Amended Statement of Claim.

2 The proceedings were commenced by Mr Konneh against the State in the Common Law Division, claiming damages for wrongful arrest, false imprisonment and assault. The proceedings are asserted to be brought by Mr Konneh on his own behalf and, pursuant to Pt 10 of the Civil Procedure Act 2005 (NSW), as a representative proceeding on behalf of persons detained by a member of the New South Wales Police Force for a breach of bail conditions relating to prosecutions in the Childrens' Court of New South Wales. It is alleged that the persons were not in fact subject to the bail conditions when they were detained.

3 Mr Konneh was at all relevant times a juvenile who was charged with a number of offences in respect of which he was granted conditional bail. He breached those bail conditions and was arrested and detained overnight. He appeared before the Parramatta Children's Court on the following day for the purpose of bail being redetermined. On that occasion, the magistrate finalised all outstanding charges against him by dismissing them under s 31 of the Young Offenders Act 1997 (NSW).

4 Mr Konneh pleads that, as a consequence of the dismissal of those charges, he was no longer the subject of any grant of bail or, therefore, subject to any bail conditions. However he was arrested for being in breach of bail conditions some four days later. It is that arrest that is the subject of his claim for wrongful arrest, false imprisonment and assault.

5 In his Amended Statement of Claim, Mr Konneh makes various allegations as to the unreliability of the police computer system (COPS) ([8], [9] and 10]).

6 In paragraph [9], Mr Konneh alleges that when he and group members were detained, senior police officers within the New South Wales Police Force were aware that the information on COPS as to bail conditions was unreliable and was often inaccurate.

7 Paragraph [10] pleads that the knowledge concerning COPS of senior police officers within the New South Wales Police Force should be attributed to the New South Wales Police Force and, by reason of that fact, to the members of the New South Wales Police Force. Particulars of that allegation are as follows:

Any rule of attribution by which the knowledge or mental state of individual senior police officers should be attributed to the NSW Police Force requires an organic approach which goes beyond the law of agency and, following discovery and interrogatories as to the repositories and extent of the relevant knowledge (and prior to any initial trial), the plaintiff and Group Members will identify, in the context of the statutory scheme relevant to the arrest of a minor, the facts, matters and circumstances and relevant policy matters relied upon to support the special rule of attribution upon which the plaintiff and Group Members rely.

8 The State is alleged to be vicariously liable for the conduct of the arresting officers pursuant to s 8 of the Law Reform (Vicarious Liability) Act 1983 (NSW).

9 The State moved pursuant to r 14.28 of the Uniform Civil Procedure Rules 2005 (NSW) to strike out paragraphs [9] and [10] and subsequent parts of the pleading that invoked the matters pleaded in paragraphs [9] and [10]. It contended that the paragraphs have a tendency to cause prejudice, embarrassment or delay in the proceedings because they have no legitimate part to play in any reasonable cause of action. Garling J dismissed the motion.

10 His Honour considered that on any view the path selected by the pleader was a "steep and rocky one and not without obstacles" (at [66]). However, his Honour was not prepared to say that it was an impossible one. His Honour considered that there would no doubt be a question at the trial as to whether the accuracy or inaccuracy of information recorded in COPS was notorious such as could lead, perhaps by inference, to a finding that the information did form, or at least must have formed, part of the actual knowledge of the relevant officers. He also said that it could not be doubted that issues about the reliability of the computer system might be relevant to the objective reasonableness of the arresting officer's conduct.

11 On its application to this Court, the State does not assert that Mr Konneh would not be entitled properly to plead a case of constructive knowledge but submits that it cannot be allowed to maintain a claim of attributed knowledge as currently pleaded. It submits that neither the upward attribution nor the downward attribution alleged could be described as having been "judicially constructed" and that there are no elements of "received doctrine" that would entitle a first instance judge (having regard to the statement by Glass JA in Champtaloup v Thomas [1976] 2 NSWLR 264 at 271) to uphold a pleading as novel as the one propounded by Mr Konneh.

12 The State further submits that the question whether or not there is a rule of attribution as contended for is an important question of law that has profound significance for policing within New South Wales and that the answer to that question will have a significant impact on the future conduct of the proceedings. It submits that if the impugned paragraphs are struck out, the scope of discovery required will be considerably narrowed, significantly limiting (if not eliminating) the necessity to divert senior police officers from their duties.

13 Mr Konneh contends that leave should not be granted because the determination of whether there is a special rule of attribution as alleged is not appropriate to be determined in a strike out application where no factual findings have been made and that a grant of leave would unduly fragment the proceedings.

14 He also submits that the determination of the question posed will not result in any significant cost savings or substantially narrow the issues in dispute because the prevalence within the New South Wales Police Force of knowledge that the database was unreliable or often inaccurate will in any event remain a live factual issue in the case.

Conclusion

15 The primary judge's decision was discretionary. Accordingly, the principles in House v R [1936] HCA 40; 55 CLR 499 are applicable. Furthermore, the decision related to a matter of practice and procedure, a field in which appellate courts are reluctant to intervene (In re the Will of F B Gilbert (1946) 46 SR (NSW) 318). In our view, the State has not identified any arguable error in the primary judge's exercise of discretion. It has thus not demonstrated that it has significant prospects of success on appeal. His Honour did not determine the issue of attribution of knowledge in favour of Mr Konneh. He simply concluded that Mr Konneh's allegations were not so obviously groundless that the relevant part of the Statement of Claim should be struck out. It was within his Honour's discretion so to conclude.

16 Furthermore, we are not persuaded that removal of the subject paragraphs from the Statement of Claim would necessarily and significantly narrow the issues in the proceedings. As the primary judge pointed out, widespread knowledge of senior, and other, officers in the Police Force may well be relevant to determining whether the arresting officer or officers knew or suspected that the COPS system was unreliable.

17 It is also relevant that a grant of leave to appeal would continue the present fragmentation of the proceedings and further delay their final hearing. The State's Notice of Motion to strike out parts of the Statement of Claim was filed on 23 December 2011. A grant of leave to appeal to this Court and the likely reservation of judgment after a hearing of the appeal would further delay the hearing at first instance, as would any application for special leave to appeal to the High Court from this Court's decision.

18 For these reasons, the application for leave to appeal is dismissed with costs.

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Decision last updated: 31 March 2014