Turner v State of NSW & Anor [2007] NSWSC 1081

In this matter Greg Walsh acted for the plaintiff in proceedings against the State of New South Wales and the Director of Public Prosecutions. On 31 January 2000 the plaintiff was sexually assaulted by another police officer and she made a complaint to the police and that police officer was charged with her sexual assault. The offender was tried on three occasions and ultimately acquitted. Over the next four and a half years the plaintiff was the subject of multiple prosecutions initiated by the New South Wales police including an apprehended violence order proceedings. The prosecutions against her failed.

The plaintiff filed a statement of claim in which she sought damages for wrongful arrest and malicious prosecution. The State of New South Wales sought particulars and over a number of years further amended statements of claim were filed together with further requests and answers to particulars. On 25 January 2007 a further request for particulars was made by the Crown Solicitor’s Office requiring approximately 200 responses. They were provided on 15 March 2007.

The State of New South Wales filed a notice of motion seeking to strike out the amended statement of claim on the basis that matters pleaded are objectionable because they have a tendency to cause prejudice, embarrassment or delay in the proceedings or otherwise an abuse of process of the Court occurs; see Rule 14.28(1)(b) and (c) of the Uniform Procedure Rules.

Harrison J reviewed authorities in relation to the issue of particulars. His Honour referred to Hunt J in Douglas & Anor v John Fairfax & Sons Limited & Anor [1983] 3 NSWLR 126 at 133 where his Honour observed:

“Their function is to simply relieve the other party if they need to investigate the issues of fact not identified by the particulars, or to show what will be put forward as constituting the case which has been pleaded.”

His Honour also referred to A v New South Wales [2007] HCA 10 in which the High Court of Australia dealt with the question of what the plaintiff needs to prove to establish absence of reasonable probably cause. Harrison J referred to the observation of Hawkins J in Hicks v Faulkner at [85]:

“Because the question in any particular case is ultimately one of fact, little use for guidance is to be had from decisions and other cases about other facts. Rather, the resolution of the question will most often depend upon identifying what it is that the plaintiff asserts to be deficient about the material upon which the defendant acted in instituting or maintaining the prosecution. That is an assertion which may, we do not say must, depend upon evidence demonstrating that further inquiries should have been made.”

Harrison J held that this was not a case in which any portion of the Amended Statement of Claim should be struck out. The defendant’s consented to the filing of a fifth edition of the statement of claim. His Honour nevertheless ordered certain particulars to be provided.