Bauskis v Thomson [2011] NSWSC 27

Bauskis v Thomson [2011] NSWSC 27

Because the State of New South Wales accepted vicarious liability for the alleged tortious conduct of the named police officers if established, Part 4 of the Law Reform (Vicarious Liability) Act 1983 required the police tort claim to proceed against the Crown rather than the individual officers, so the first to fourth defendants were improperly joined and should be removed. The plaintiff's tort claim was wrongly commenced by summons, and the interests of justice and the overriding purpose required the proceedings to continue on pleadings with a statement of claim.

Jurisdiction
Australia
Judgment Date
07 February 2011
Procedural Posture
Claim in Tort for Wrongful Arrest, Unlawful Imprisonment, Assault and False Accusations; Procedural Notice of Motion / Ex Tempore Ruling on the Fifth Defendant's Notice of Motion to Remove the First to Fourth Defendants and Require the Proceedings to Continue on Pleadings
Outcome
The State of New South Wales' notice of motion succeeded; the first to fourth defendants were removed, the proceedings were ordered to continue on pleadings, the plaintiff was ordered to file a statement of claim within 42 days, and the plaintiff was ordered to pay the fifth defendant's costs of the notice of motion.
Legal Topics
['removal of Improperly Joined Parties' 'police Tort Claim' 'proceedings Commenced by Summons Instead of Statement of Claim' 'pleadings' 'costs of Notice of Motion']
['civil Procedure' 'tort' 'vicarious Liability'] ['removal of Improperly Joined Parties' 'police Tort Claim' 'proceedings Commenced by Summons Instead of Statement of Claim' 'pleadings' 'costs of Notice of Motion']

Case Brief

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Procedural Posture

Claim in Tort for Wrongful Arrest, Unlawful Imprisonment, Assault and False Accusations; Procedural Notice of Motion / Ex Tempore Ruling on the Fifth Defendant's Notice of Motion to Remove the First to Fourth Defendants and Require the Proceedings to Continue on Pleadings

Legal Issues

  1. 1 ['Whether the first to fourth defendants, who were individual police officers, were improperly joined where the State of New South Wales accepted vicarious liability for any torts established against them.' 'Whether proceedings alleging tortious conduct were wrongly commenced by summons and should continue on pleadings with a statement of claim.' "Whether the plaintiff's asserted right to have all procedural aspects determined by a jury prevented the Court from making procedural orders."]

Ratio Decidendi

Because the State of New South Wales accepted vicarious liability for the alleged tortious conduct of the named police officers if established, Part 4 of the Law Reform (Vicarious Liability) Act 1983 required the police tort claim to proceed against the Crown rather than the individual officers, so the first to fourth defendants were improperly joined and should be removed. The plaintiff's tort claim was wrongly commenced by summons, and the interests of justice and the overriding purpose required the proceedings to continue on pleadings with a statement of claim.

Court Disposition

The State of New South Wales' notice of motion succeeded; the first to fourth defendants were removed, the proceedings were ordered to continue on pleadings, the plaintiff was ordered to file a statement of claim within 42 days, and the plaintiff was ordered to pay the fifth defendant's costs of the notice of motion.

Orders

  • ['Pursuant to r 6.29(a) of the Uniform Civil Procedure Rules 2005, Luke Thomson, the first defendant, Natalie Pickford, the second defendant, Shane Peter Ranee, the third defendant, and Stuart Coote, the fourth defendant, be removed as parties to the proceedings.' 'The proceedings continue by way of pleadings...