Angeleska v State of Victoria
[2013] VSC 598
•1 November 2013
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
COMMON LAW DIVISION
S CI 2011 6392
| SNEZANA ANGELESKA (known as SLAVESKA) | Plaintiff |
| v | |
| THE STATE OF VICTORIA & ORS (according to the attached Schedule of Parties) | Defendants |
---
JUDGE: | LANSDOWNE AsJ | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 15 & 16 October 2012, 18 February 2013 and further submissions to 29 October 2013 | |
DATE OF JUDGMENT: | 1 November 2013 | |
CASE MAY BE CITED AS: | Angeleska v State of Victoria & Ors | |
MEDIUM NEUTRAL CITATION: | [2013] VSC 598 | |
---
ESTOPPEL – application for summary judgment on the basis of Anshun estoppel – plaintiff acted as unrepresented litigation guardian in prior proceeding involving substantially the same set of facts – plaintiff not party to prior proceeding – whether there is a risk of inconsistent judgments – whether it was unreasonable for the plaintiff not to join herself to the earlier proceeding –Anshun estoppel not established.
LIMITATION OF ACTIONS – application for summary judgment on the basis of time bar - whether claims brought out of time pursuant to the Limitation of Actions Act 1958 – whether to grant extension of time – prejudice to defendants in re-litigation of same facts as in prior proceeding – insufficient explanation for delay - extension refused.
CHARTER - relevance of Charter rights to exercise of discretion in awarding summary judgment – Charter of Human Rights and ResponsibilitiesAct 2006
PRACTICE AND PROCEDURE – strike out – dismissal on the basis of good defence on the merits
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | In person | |
| For the Defendants | Mr R. Gipp | Victorian Government Solicitors Office |
TABLE OF CONTENTS
Introduction......................................................................................................................................... 1
Test for summary dismissal.............................................................................................................. 3
Submissions........................................................................................................................................ 5
Anshun estoppel: incidents 1-10 and 12 and Mr Slaveski’s proceedings.............................. 10
The legal principles.................................................................................................................... 10
Joinder of claims........................................................................................................................ 10
Anshun estoppel....................................................................................................................... 11
Anshun estoppel where there is a new plaintiff........................................................................ 15
Application of these principles to this case............................................................................ 17
Same facts, and claims could have been made in Slaveska proceeding..................................... 18
Risk of inconsistent judgment.................................................................................................. 19
Character of previous proceeding; scope of pleadings and length and complexity of the previous trial 22
Plaintiff’s detailed knowledge of and involvement in the previous proceeding; her own proceedings in contemplation........................................................................................................................... 25
Matters advanced as justification............................................................................................. 26
Different person and not previously a plaintiff......................................................................... 27
Judgment of Kyrou J is incorrect.............................................................................................. 27
Lack of legal knowledge............................................................................................................ 28
Lack of warning by the Court and defendants.......................................................................... 29
Prejudice to the conduct of her husband’s case........................................................................ 32
Charter..................................................................................................................................... 36
Conclusion on Anshun estoppel in relation to Slaveski proceedings................................... 36
Anshun estoppel: incident 16 and the contempt proceedings against Mr Slaveski........... 38
Limitation period.............................................................................................................................. 40
The statutory periods of limitation.......................................................................................... 40
Application of the statutory limitation periods to these claims.......................................... 43
First incident 8 September 2000............................................................................................... 43
Incidents after 21 May 2003.................................................................................................... 44
When were the causes of action “discoverable”?...................................................................... 47
Undated incidents (11,12 and 15)............................................................................................ 54
Conclusions as to when limitation periods expired.............................................................. 59
Legal principles applicable to extension of time................................................................... 59
Application of the principles to this case................................................................................ 64
Delay........................................................................................................................................ 64
Particular reasons asserted for delay........................................................................................ 70
Prejudice to the defendants and to a fair trial........................................................................... 72
Nature and extent of the plaintiff’s loss and the defendants’ conduct....................................... 75
Other matters relied upon by the parties................................................................................... 76
Conclusion on extension of time.............................................................................................. 78
Charter................................................................................................................................................ 81
Good defence on the merits- no duty to investigate: incidents 11, 12 and 15....................... 83
Strike out on pleading grounds.................................................................................................... 88
Conclusion......................................................................................................................................... 90
HER HONOUR:
Introduction
These proceedings commenced by writ and statement of claim filed on 24 November 2011. The plaintiff seeks damages for various alleged wrongs said to have been committed on a number of occasions from 8 September 2000 to 1 July 2010 by the State of Victoria (the first defendant), Victoria Police (the twenty fifth defendant) and 23 individual police officers. The plaintiff filed an amended statement of claim on 15 May 2012 deleting reference to the twenty-fifth defendant and making allegations formerly made against the twenty-fifth defendant as against the first defendant, the State of Victoria. This amendment was made at the instigation of, and with the consent of, the remaining defendants.
The plaintiff is the wife of Ljupco Slaveski and was first his McKenzie friend and then his litigation guardian in proceedings against the State of Victoria and multiple police officers arising out of a number of the same incidents that now form the subject of these proceedings. Mr Slaveski was not legally represented in those proceedings at trial before Kyrou J. He appeared for himself in the first phase of the trial, from 3 August 2009 until 14 December 2009. The plaintiff was appointed her husband’s litigation guardian after the trial commenced, her appointment taking effect on 28 January 2010. Ordinarily a litigation guardian must act by a solicitor, but Kyrou J waived that requirement. The second phase of the trial commenced on 1 February 2010. The plaintiff was her husband’s lay advocate in the second phase of the trial of his proceeding until its conclusion on 18 August 2010.[1]
[1]This account is drawn from the judgment of Kyrou J Slaveski v State of Victoria [2010] VSC 441, at [51]-[52] and [84].
Judgment was delivered by Kyrou J in Mr Slaveski’s proceedings on 1 October 2010[2]. Kyrou J dismissed all of Mr Slaveski’s claims, except his claims of trespass arising from an incident on 13 December 2005. Mr Slaveski subsequently sought to appeal the orders of Kyrou J. That appeal was dismissed by the Court of Appeal on 1 February 2013[3].
[2]Slaveski v State of Victoria [2010] VSC 441
[3]Unreported decision of Neave JA and Vickery AJA, Slaveski (by his litigation guardian Snezana Slaveska) v State of Victoria and ors S APCI 2010 0169 1 February 2013.
The application before me concerns two summonses. The first is the summons issued on behalf of the first to twenty-fourth defendants on 4 June 2012, by which those defendants seek that a large number of the claims made by the plaintiff be summarily dismissed or struck out. The defendants assert that the plaintiff is estopped from bringing many of those claims, because they could and should have been brought in the proceedings instituted by her husband; that they (the defendants) have a good defence on the merits to certain claims (being those related to a failure to investigate); that certain claims do not disclose a cause of action; and that most of the claims are in any event statute barred for lapse of time. Save for the claims arising from an alleged failure to investigate, the defendants do not seek summary judgment on the basis that the plaintiff will not succeed on the merits of her claims.
I heard the defendants’ summons on 15 and 16 October 2012. At the conclusion of that hearing, I permitted the plaintiff to make application for extension of time to bring her proceedings pursuant to s 27K of the Limitation of Actions Act1958(Vic) (“Limitations of Actions Act”). I also directed that she give notice to the Victorian Human Rights and Equal Opportunity Commission of various issues arising under the Charter of Human Rights and ResponsibilitiesAct 2006 (“Charter”) that she had raised in her material in answer to the defendants’ summons.
The plaintiff did give that notice and the Commission informed the Court and the parties by letter dated 31 October 2012 that it did not propose to intervene.
The plaintiff filed her summons seeking extension of time on 30 October 2012. That is the second summons before me. It was referred to me for hearing by Williams J in her capacity as Principal Judge of the Common Law Division by order made 10 December 2012 and was heard by me on 18 February 2013. The parties then filed further material by directions made that day to 13 March 2013. In the course of preparing this judgment I gave the parties two further opportunities to put further written submissions, in respect of issues which had only then become apparent.
Test for summary dismissal
The defendants rely in their summons on a number of different bases for summary dismissal as expressed in Supreme Court (General Civil Procedure) Rules 2005 (“the Rules”) and throughout on s 62 of the Civil Procedure Act 2010 (“CPA”). Paragraphs 1, 3, 6, 8, 10, and 13 (15 is not pressed) of the defendants’ summons seek summary dismissal of various claims pursuant to r 23.01 of the Rules on the grounds that the plaintiff’s proceeding is an abuse of process of the Court and that the plaintiff is estopped from bringing the proceedings (paragraph 1) or that the claims do not disclose a cause of action, are scandalous, frivolous or vexatious, or are otherwise an abuse of process of the Court (paragraphs 3, 6, 8, 10 and 13). Paragraphs 2, 4, 11 and 17 seek summary dismissal of various claims in reliance on r 23.03 (that the defendants to those claims have a good defence on the merits). Paragraphs 5, 7, 9, 12, 14 and 16 seek that various paragraphs of the plaintiff’s amended statement of claim be struck out pursuant to r 23.02 on pleadings grounds. This plea is in the case of most claims in the alternative to summary dismissal. The usual consequence of a strike out on pleadings grounds only is that the party concerned is permitted to re-plead.
Rules 23.01-23.03 of the Rules provide as follows:
23.01 Stay or judgment in proceeding
(1) Where a proceeding generally or any claim in a proceeding—
(a) does not disclose a cause of action;
(b) is scandalous, frivolous or vexatious; or
(c) is an abuse of the process of the Court—
the Court may stay the proceeding generally or in relation to any claim or give judgment in the proceeding generally or in relation to any claim.
(2) Where the defence to any claim in a proceeding—
(a) does not disclose an answer; or
(b) is scandalous, frivolous or vexatious—
the Court may give judgment in the proceeding generally or in relation to any claim.
(3) In this Rule—
(a) a claim in a proceeding includes a claim by counterclaim and a claim by third party notice; and
(b) a defence includes a defence to a counterclaim and a defence to a claim by third party notice.
23.02 Striking out pleading
Where an indorsement of claim on a writ or originating motion or a pleading or any part of an indorsement of claim or pleading—
(a) does not disclose a cause of action or defence;
(b) is scandalous, frivolous or vexatious;
(c) may prejudice, embarrass or delay the fair trial of the proceeding; or
(d) is otherwise an abuse of the process of the Court—
the Court may order that the whole or part of the indorsement or pleading be struck out or amended.
23.03 Summary judgment for defendant
On application by a defendant who has filed an appearance, the Court at any time may give judgment for that defendant against the plaintiff if the defendant has a good defence on the merits.
Sections 62-63 of the CPA provide as follows:
62. Defendant may apply for summary judgment in proceeding
A defendant in a civil proceeding may apply to the court for summary judgment
in the proceeding on the ground that a plaintiff's claim or part of that claim
has no real prospect of success.
63. Summary judgment if no real prospect of success
(1) Subject to section 64, a court may give summary judgment in any civil
proceeding if satisfied that a claim, a defence or a counterclaim or part of
the claim, defence or counterclaim, as the case requires, has no real prospect
of success.
(2) A court may give summary judgment in any civil proceeding under subsection
(1)-
(a) on the application of a plaintiff in a civil proceeding;
(b) on the application of a defendant in a civil proceeding;
(c) on the court's own motion, if satisfied that it is desirable to
summarily dispose of the civil proceeding.
In Lysaght Building Solutions Pty Ltd v Blanalko Pty Ltd[4] (“Lysaght”) the Court of Appeal held by majority that the test of “no real prospect of success” under the CPA is “to some degree a more liberal test than the ‘hopeless’ or ‘bound to fail’ test”[5] which was the test that historically applied to summary dismissal, and is the test under the Rules. The majority admitted the possibility that a proceeding may not be considered hopeless or bound to fail, but still have no real prospect of success and so be appropriate for dismissal under the CPA, although not the Rules. The Court by majority was, however, very cautious as to when this might occur, describing such a case as “yet to be identified”[6] and giving considerable weight to the caution with which proceedings should be summarily dismissed. It was held that summary dismissal should not be granted:
unless it is clear that there is no real question to be tried; and that is so regardless of whether the application for summary judgment is made on the basis that the pleadings fail to disclose a reasonable cause of action (and the defect cannot be cured by amendment) or on the basis that the action is frivolous or vexatious or an abuse of process or where the application is supported by evidence.[7]
[4][2013] VSC 201
[5]Ibid, at [29] and [35] in the joint judgment of the Chief Justice and Nettle JA.
[6]Ibid.
[7]Ibid, at [35(d)].
Lysaght was both argued and determined after argument in these applications had concluded. However, it declares the law rather than explicitly changing it, and so I have not sought further submissions on its application, and will apply the majority decision in this judgment.As is evident from the quote above, the same test applies whatever the basis of the application for summary dismissal.
Submissions
In short summary, the defendants assert that all claims made by the plaintiff except the two most recent (which relate to incidents on 2 June 2010 and 1 July 2010) are time barred, and that time should not be extended under the Limitation of Actions Act to enable the plaintiff to litigate them. Counsel for the defendants provided a table of the incidents of which the plaintiff complains. That table is attached as Annexure A, incorporating changes made to it in the course of the hearing, and text inserted by me to reflect these reasons and the outcome of the applications. The table identifies 17 incidents. I will refer to these incidents by this numbering henceforth.
The defendants also assert that summary judgment on other grounds should be given in respect of all claims made by the plaintiff except the claim relating to the most recent incident on 1 July 2010, incident 17. In respect of that claim, the defendants did not press paragraph 15 of their summons and seek only that the current pleading be struck out. Strike out would ordinarily be on the basis that the plaintiff be able to re-plead that claim, and the defendants do not resist that here.
The principal grounds advanced by the defendants for summary judgment in their favour other than that the claims are out of time are as follows. First, in respect of claims arising out of the same incidents that formed the basis of claims made by Mr Slaveski in his proceeding (which are incidents 1-10 inclusive and incident 12), the defendants say that those claims could, and should, have been made by the plaintiff in that proceeding or in her own proceeding heard at the same time. Accordingly, they say that the plaintiff is estopped i.e. legally prevented from bringing those claims now. This submission is based on the principle propounded by the High Court in Port of Melbourne Authority v Anshun Pty Ltd[8] (“Anshun”). I will call this basis “Anshun estoppel”. This submission relates to the claims arising from 13 of the 17 incidents.
[8](1981) 147 CLR 589
The defendants also assert that the plaintiff is estopped from making the 16th claim (which relates to an incident on 2 June 2010) because this claim, although not included in Mr Slaveski’s proceeding, was the subject of evidence given by the plaintiff and Mr Slaveski in subsequent contempt proceedings before Whelan J. The defendants submit that there is a risk of inconsistent judgments if the plaintiff is permitted to make civil claim arising out of that incident.
In respect of the claims made by the plaintiff arising from the incidents numbered in the attached Annexure A as 11, 12 and 15, the defendants say that they have a good defence on the merits. These claims are claims of negligence. Claim 12 was brought by Mr Slaveski in his proceeding in identical terms against the same defendant, but was dismissed on it merits. The defendants say the same outcome should apply here, and that claim should be dismissed on the basis that it cannot succeed on its merits in addition to, or as an alternative to, dismissal on the Anshun estoppel basis.
The claims in respect of incidents 11 and 15 are of alleged failure to investigate complaints made by the plaintiff and her family. The defendants rely on the determination by Kyrou J in the Slaveski proceedings in respect of claim 12 that police officers do not owe a duty of care to a particular complainant to investigate a complaint. They say on that basis, the claims made in respect of incidents 11 and 15 in this proceedings should be dismissed on the merits.
The defendants rely on paragraphs 30-75 in particular of Ms Nguyen’s first affidavit in support of their assertion that the plaintiff’s claims arising from incidents 1 to 10 and 12 (the subject of the Anshun estoppel argument advanced by the defendants) arise from the same facts relied upon by Mr Slaveski in his proceedings, which were heard and determined by Kyrou J. The plaintiff does not deny that her claims arise from the same facts.
Anshun estoppel is usually raised against a party to a subsequent proceeding who was also a party to the earlier proceeding. The plaintiff was not a party to her husband’s proceeding, but the defendants assert that the principle nevertheless applies because of the following matters. The plaintiff was intimately involved in the development of her husband’s claim prior to its trial; she materially assisted him at that trial prior to her appointment as litigation guardian; and in the second tranche of the trial from January 2010 she was his litigation guardian and so responsible for the conduct of the trial on his behalf and in daily attendance as his lay advocate. The matters relied upon by the defendants to support these assertions are set out in paragraphs 76 and following of Ms Nguyen’s first affidavit. The plaintiff does not dispute the matters set out in the affidavit.
The defendants also assert that the plaintiff clearly had legal proceedings on her own behalf in contemplation both in advance of her husband’s trial and during the course of that trial. Evidence in support of this assertion is found in particular in paragraphs 83, 84.1 (an assertion to that effect by Mr Slaveski) and 85.3 of Ms Nguyen’s first affidavit. Again, the plaintiff does not dispute the factual material set out in the affidavit, although she does dispute its relevance and consequences for her own proceedings.
What the plaintiff says in relation to the Anshun estoppel argument is as follows. First, she says that as she is a different person to her husband, she is entitled to bring her own claim and to do so when she chooses (subject to limitation issues which I will address shortly), even if those claims arise out of the very same incidents that have already been determined in her husband’s proceeding. She also submitted initially that the findings of Kyrou J were subject to appeal. As indicated, that appeal was subsequently dismissed. She further says that her husband’s situation was different to hers in that he was a person of interest to the police and she was not at the time of the incidents of which they complain. She says that it was material to the defendants’ defence of Mr Slaveski’s claim that he was a person of interest to police.
The plaintiff also says she made it plain in her husband’s trial that she intended to sue on her own behalf and no objection to this course was raised at that time by the defendants (who are also defendants in this proceeding) and that the trial judge in her husband’s proceedings told her not to advance her own case in that proceeding. She says it would have prejudiced her husband’s case to add herself as plaintiff and she needed to focus on her task in those proceedings as assistant to him and subsequently litigation guardian for him. In particular, she says that it would have been inconsistent with her commitment to act in Mr Slaveski’s best interests, which she was required to give on affidavit to be appointed his litigation guardian, to also be a plaintiff in those proceedings.
Generally, the plaintiff relies on s 64 of the CPA, which empowers a court to refuse an application for summary judgment even if the court considers that there is no real prospect of success. The court may refuse summary judgment pursuant to that section where the court considers that the civil proceedings should not be disposed of summarily because –
(a) it is not in the interests of justice to do so; or
(b)the dispute is of such a nature that only a full hearing on the merits is appropriate.
In relation to her application for extension of time, the plaintiff says the following. Broadly, she says that she believed that the relevant limitation period was six years from the date of an alleged wrong when her husband commenced his proceeding, and she was unaware that the limitation period for any claim for damages for personal injury was subsequently shortened to three years. Had the period still been six years, then a number of her claims would have been within that time at the time she filed her writ. In fact, the limitation period was, for most incidents in common in the two proceedings, already three years when her husband commenced his proceeding in 2006, but he did so in time.
The plaintiff asserts that some claims are in any event within time. This is not disputed in respect of incidents 16 and 17. In respect of the claims numbered by the defendants as 11 and 15 in Annexure A, the plaintiff’s claims against officers Cornelius, Gutske and Mason, she says they are within time as the involvement of those senior officers was “from 2008”. The defendants dispute that these claims are within time. They also say they must fail because, as set out above, there is no relevant duty owed.
In relation to the claims arising out of incidents 1 and 5, which occurred on 8 September 2000 and 13 December 2005 respectively, the plaintiff deposes in her affidavits filed 28 September 2012 and 30 October 2012 that she was unaware of the names of the police officers who she alleges assaulted her until the trial of Mr Slaveski’s proceedings. She also asserts in her first affidavit that she is a person under a disability, but this assertion was not developed in argument or any further evidence in support provided.
The plaintiff also relies on her involvement in her husband’s proceeding in relation to extension of time. She says that her time and attention was consumed by her husband’s trial and she was unable for that reason to commence her own proceedings within the limitation period. As in relation to the Anshun estoppel argument, she says that it would have prejudiced her husband’s trial to do so, by distracting her from the proper conduct of her husband’s trial. The plaintiff also seeks an extension of time as an exercise of the Court’s duty to an unrepresented litigant and pursuant to rights she asserts under the Charter.
I now turn to a more detailed consideration of these submissions.
Anshun estoppel: incidents 1-10 and 12 and Mr Slaveski’s proceedings
The legal principles
Joinder of claims
It is a fundamental principle of the law that there should be finality in litigation and multiplicity of proceedings arising from the same facts is to be avoided. This principle is reflected in s 29(2) of the Supreme Court Act 1958 (Vic) which relevantly provides that the Supreme Court, and other civil courts in Victoria, must :
exercise its jurisdiction in every proceeding before it as to secure that, as far as possible, all matters in dispute between the parties are completely and finally determined, and all multiplicity of proceedings concerning any of those matters is avoided. (emphasis added)
The first limb of the portion of the sub-section quoted above relates to the parties to a particular proceedings. The current plaintiff was not, of course, a party to her husband’s proceedings, although she was his litigation guardian. The second limb relates to other proceedings that might arise from the same facts. The desirability of avoiding multiplicity of proceedings between different parties arising from the same facts underlies the rules facilitating joinder of parties to an existing proceeding. Relevantly, r 9.06 of the Rules provides as follows:
At any stage of a proceeding the Court may order that-
(b)any of the following persons be added as a party, namely-
(ii)a person between whom and any party to the proceeding there may exist a question arising out of, or relating to, or connected with, any claim in the proceeding which it is just and convenient to determine as between that person and that party as well as between the parties to the proceeding
Had the current plaintiff sought that she be joined to her husband’s proceeding as a party in her own right she could have relied on that rule in support, and, subject to discretionary matters relating to the attitude of the existing parties, any prejudice to them and costs, that application may well have been granted. Alternatively, had she instituted her own proceedings sufficiently in advance of the trial of her husband’s proceeding, application could have been made by either plaintiff or the common defendants seeking that the two proceedings be heard together in the one trial. Thus, mechanisms existed to permit her current claims to have been determined at the same time as her husband’s.
Anshun estoppel
It also flows from the desirability of avoiding multiplicity of proceedings arising from the same facts that a person with a claim sufficiently connected with an earlier proceeding may be prevented from subsequently bringing that claim if it not only could have been brought in the earlier proceeding (as here), but should have been. The principle is known as “Anshun estoppel” following the adoption of it by the High Court in Anshun. That case concerned a subsequent proceeding between the same defendants to an earlier proceeding in relation to a claim for indemnity which could have been, but was not, made in the earlier proceeding. The subsequent proceeding was stayed on the basis that the indemnity claim not only could have been litigated in the earlier proceeding, it should have been. On appeal to the High Court, in the joint judgment of the majority, Gibbs CJ, Mason J and Aitkin J identified the test as being whether the subject matter of the subsequent proceeding was “so relevant to the subject matter of the first action that it would have been unreasonable not to rely on it.”[9] In particular, they identified a clear instance where an estoppel would apply being where the subsequent proceeding, if it succeeds, would result in a judgment which conflicts with an earlier judgment.[10]
[9](1981) 147 CLR 589, at 602
[10]Ibid, at 603
It is no small thing to prevent a plaintiff from litigating a claim otherwise open to her, which has not been previously litigated. It amounts to a total bar to the plaintiff ever obtaining judicial determination of that claim. In Gibbs v Kinna,[11] the Victorian Court of Appeal stressed the caution with which the principle should accordingly be applied. Ormiston JA stressed that the test as stated by the High Court in Anshun is not whether it would have been reasonable to take the course of relying on a particular defence or cause of action in the first proceeding, but whether it was unreasonable to defer reliance upon the defence or cause of action, and that unless this is shown, the principle will not shut out a party’s later reliance on that defence or cause of action: “Only if deferring reliance can be shown to be unreasonable, will the party be shut out.”[12] Kenny JA in the same case stated that:
It should, I think, be borne in mind that whilst the principle discussed in Anshun’s case is designed to foster public and private interests by encouraging parties to advance all their related claims or defences at the one time, thereby diminishing unnecessary duplication of curial and other effort, it seeks to meet these objectives by terminating a litigant’s right to have a court adjudicate upon the merits of a claim. It is, I think, on this account that the principle is to be applied in only the clearest of cases.[13]
[11][1999] 2 VR 19, [1998] VSCA 52
[12]Ibid, at 20 [1 ]
[13]Ibid, at 29 [33].
Thus, the onus is here on the defendants to show that it was unreasonable for the plaintiff not to have brought her claims in her husband’s proceeding, and this conclusion must be clear for the principle to apply.
In Gibbs v Kinna itself the principle was held not to apply. The plaintiff at trial/respondent in the appeal had succeeded in obtaining an award of damages from a Judicial Registrar in the Industrial Relations Court of Australia for wrongful termination of employment pursuant to a statutory right of action. He then initiated subsequent proceedings in the Magistrates’ Court for damages for breach of contract of employment and misleading and deceptive conduct against the same employer. The magistrate ruled that he was estopped from doing so on the basis of the Anshun principle, but on appeal the trial judge held that the magistrate was in error in so ruling. The Court dismissed the appeal from the determination by the trial judge.
Kenny JA (with whom the other two Judges of Appeal in substance agreed) identified that there are two necessary preconditions before the principle can apply. These are that the subsequent claims could have been raised in the earlier proceeding, and that the same or substantially the same facts will arise for consideration in the second, as in the first, proceeding. Her Honour held, or assumed for the purposes of the judgment, that both were satisfied in that case.
She held, however, that these are necessary, but not sufficient conditions i.e. something more is required. She did not endeavour to identify exhaustively what that something more may be, but did note that “there is at least one factor, however, which is indicative of “unreasonableness” in not asserting a cause of action in an earlier proceeding” being that:
if any judgment or order which might be made on the cause of action in the subsequent proceeding would conflict with a judgment or order in the earlier proceeding, then it will ordinarily be unreasonable to refrain from raising the cause of action in the first proceeding.[14]
She held that in the case before her there was no such possibility, and nor did the appellants contend that there was. She accepted that there might be findings on particular facts on which the subsequent court would be prevented from departing from the factual findings in the earlier proceeding, on the more limited principle of issue estoppel, but this did not prevent the subsequent proceedings as a whole.
[14]Ibid, at [25].
Kenny JA assumed, for the purposes of that case, that the principle might still apply even if there was no risk of an inconsistent judgment. She held that whether or not the principle applies should be determined having regard to all the relevant circumstances, including the character of the previous proceeding, the scope of any pleadings, the length and complexity of the previous trial, any real or reasonably perceived difficulties in raising the current claim in the earlier proceeding and any other explanation for the failure to raise the claim in that proceeding.[15] Notably, Kenny JA did not identify prejudice to the defendants or duplication of effort arising from re-litigation of issues from the previous proceeding as discrete relevant factors.
[15]Ibid, at [23] and [25]-[28].
The particular factors relied upon by the Court in holding in Gibbs v Kinna that it was not unreasonable for the plaintiff not to litigate the earlier claims with his statutory claim were as follows. The first proceeding concerned a discrete statutory remedy which was intended to be expeditious, determined without undue formality (for example, there were no pleadings) and had the unusual features of a reverse onus and no provision for an order for costs. The statutory remedy was intended to be in addition to other remedies at common law or pursuant to statute. Further, the statutory remedy could be, and was, heard by a Judicial Registrar, who would not have had the jurisdiction to deal with the claims made in the subsequent proceeding. The Court accepted that it may have been possible for the plaintiff to seek to add his common law and new statutory claims in the original proceeding, but this would have added complication and delay, and necessitated the case being uplifted to a judge.
Counsel for the defendants has referred me to another Court of Appeal decision, Hopkins and anor v King (“Hopkins v King”)[16] in which the Court held that the estoppel did apply. In that case, the plaintiff in subsequent proceedings sought a form of relief (equitable compensation) against defendants he had joined to an earlier proceeding arising from the same facts. In the earlier proceeding he had sought against them only a declaration, and did not pursue it at trial. Callaway JA, with whom Batt JA and Buchanan JA agreed on this point, held that the cause of action was the same in the subsequent as in the earlier proceeding, only a different form of relief was sought. He held that the plaintiff was estopped from pursuing the subsequent proceedings because he could have sought equitable compensation against the defendants in the earlier proceeding, but did not: “In the absence of fraud or other unconscionable conduct on their part, he must abide the consequences of the procedural step that he took.”[17]
[16](2001) 4 VR 619, [2001] VSCA 140
[17]Ibid, at [13].
His Honour noted that the estoppel in that case could in fact be said to arise from the strict principle of res judicata i.e. that the plaintiff’s cause of action had merged in the judgment in the earlier proceeding, and so was no longer available to be pursued in subsequent proceedings. If that was not the case, because the declaration was not pursued in the earlier proceeding, the circumstances were so close to res judicata as to show that Anshun estoppel clearly applied.
Anshun estoppel where there is a new plaintiff
In Anshun, Gibbs v Kinna and Hopkins v King the subsequent proceeding concerned the same parties, or some of them, to the earlier proceeding. Here the current proceeding concerns a different plaintiff, although by and large the same defendants. Is the principle then applicable?
The defendants assert that the principle applies notwithstanding that the party sought to be estopped is a different plaintiff to that in the earlier proceeding. Counsel relied at the hearing in this regard on the decision of Davies J in Solak v Registrar of Titles (No 2)[18] (“Solak (No 2)”). That case concerned a subsequent proceeding by the same plaintiff as in an earlier proceeding, and arising from the same facts, but against a new defendant, being the Registrar of Titles. In the original proceeding, the plaintiff sought relief as against a mortgagee in respect of a mortgage that had been granted fraudulently over his property and subsequently registered. That relief was refused. In the subsequent proceeding, the plaintiff made a claim for damages against the Registrar of Titles pursuant to s 110 of the Transfer of Land Act (Vic) 1958 arising from error in the Register. Davies J granted summary judgment for the Registrar of Titles on the basis that the plaintiff could and should have brought the damages claim against the Registrar in his earlier proceeding against the mortgagee. Davies J held that:
Anshun estoppel can apply even though the subsequent action is against a party that was not a party to the earlier action as the consideration that underlies the estoppel, as with res judicata and issue estoppel, is the “general public interest in the same issue not being litigated over again”.[19]
[18][2010] VSC 146
[19]Ibid, at [11], citations omitted.
In that case, the new party was a new defendant, not a new plaintiff, although Her Honour cited as part authority for her proposition the view expressed in texts and articles by learned authors that the principle may apply whether the claimant or the defendant or both are different. Counsel for the defendants submitted in answer to my query in argument that there is no relevant distinction in the application of the Anshun principle between a new plaintiff (as here) and a new defendant, as in Solak (No 2).
Solak (No 2) was successfully appealed to the Court of Appeal. In Solak v Registrar of Titles and ors[20] the Chief Justice, with whom Neave JA and Hargrave AJA agreed, allowed an appeal against the judgment of Davies J on the basis of mistake of fact, and determined afresh the question as to whether Anshun estoppel applied to the subsequent proceeding. She held that it did not. Although the judgment of the Court of Appeal was delivered in September 2011, counsel for the defendants did not refer me to it at the hearing. Accordingly, I gave the parties the opportunity to make further submissions on the Court of Appeal decision. Only the defendants did so. They submit that although the decision of Davies J was overturned, the Court of Appeal did not overrule her statement of the relevant principles.
[20][2011] VSCA 279
In my view, the defendants’ further submissions overlook the significance of the judgment of the Court of Appeal. I consider that it substantially weakens their case for the application of Anshun estoppel. First, the judgment of the Chief Justice expressly adopts the view expressed in Gibbs v Kinna and subsequent authority that the principle should be held to apply only in the clearest of cases.[21] Next, as to the relevant factors, the Chief Justice also adopted the judgment of Kenny JA in Gibbs v Kinna that the risk of inconsistent judgments is the most important factor going to the existence of Anshun estoppel, although other factors may also be sufficient even if there is no such risk.[22]
[21]Ibid, at [72]-[73]
[22]Ibid, at [74] and following.
Finally, and significantly for this case, the Chief Justice sounded a note of caution against applying Anshun estoppel too readily where the parties in the subsequent proceeding are not identical to those in the first. In the circumstances of that case, and the cases to which Her Honour referred, the new party was a new defendant i.e. the second proceeding concerned a different defendant, although the same plaintiff. The Chief Justice noted that the High Court had not yet considered the principles applicable in this situation. In the appeal before her she held that it was not necessary to decide whether special principles or a different test applied in that situation, but she did cite with approval authority from the New South Wales Court of Appeal and the English Court of Appeal to the effect that Anshun estoppel should not be applied too readily in favour of a new defendant in the subsequent proceeding. She noted that all the cases to which the Court had been referred where a defendant who was not a party to the first proceeding was able to successfully rely on Anshun estoppel in the second proceeding involved the estopped plaintiff attempting to assert in the second proceeding some proposition inconsistent with the judgment in the first proceeding. She held that was not a risk in the case before her.[23]
[23]Ibid, at [67]-[71] and [75].
The case before me concerns not a new defendant, but a new plaintiff. In my view, even greater caution should be exercised in that situation in applying Anshun estoppel. If extra caution may be required where the original plaintiff had the choice of joining a defendant, but did not do so in the original proceeding, it would seem that even greater caution is necessary where the new party is a new plaintiff. This is because an additional plaintiff would not ordinarily be in control of the earlier proceeding. It follows that I do not consider the defendants’ proposition that the same principle applies whether the new party is a new defendant or a new plaintiff to be necessarily correct. In this particular case, of course, the new plaintiff was both closely connected to the original plaintiff, and also from part way through the trial his litigation guardian, and so effectively in control of his proceeding. I will consider the significance of this shortly.
Application of these principles to this case
Having regard to the recent endorsement by the Court of Appeal of the approach identified by Kenny JA in Gibbs v Kinna, I will consider this case by application of the same factors there identified.
Same facts, and claims could have been made in Slaveska proceeding
According to Gibbs v Kinna, the essential circumstances for the estoppel to apply are that the second proceeding arises from the same facts as the first, and the claims asserted in the second proceeding could have been made in the first. The defendants’ contention is that the claims made by the plaintiff in respect of the incidents numbered 1-10 inclusive and 12 in the Annexure exactly mirror claims brought by Mr Slaveski in his proceedings. This is not denied, however, as the plaintiff is not legally represented, and is not legally trained, I have independently investigated the defendants’ assertion to the extent possible on the material before me. I have checked the plaintiff’s claims as pleaded against the claims pleaded by her husband in his final statement of claim[24] and against the determination of her husband’s claims in the judgment of Kyrou J.
[24]His Further Further Further Amended Statement of Claim dated 15 June 2010, which is exhibited as HN-6 to Ms Nguyen’s affidavit. This statement of claim is signed by the current plaintiff, as her husband’s litigation guardian.
In respect of each of these incidents I am satisfied that these claims now made by the plaintiff arise from the same facts relied upon by her husband in respect of equivalent claims made by him. Not only are the underlying facts the same - the causes of action relied upon are in most cases identical, save of course that in this proceeding the wrong is said to have been to the plaintiff as opposed to her husband. Further, in most cases the pleading of the various causes of action said to arise from an incident is identical in the plaintiff’s case to that pleaded in her husband’s case, varied only in that injury is alleged to the plaintiff, rather than to her husband. The defendants are identical in respect of each of these incidents, save that in respect of two incidents there were additional defendants to her husband’s claims (incidents 1 and 5); and the plaintiff makes claims arising from incident 4 against an additional defendant (Cole as well as Nolan). Mr Slaveski’s case included some additional claims relevant to him only arising from the same facts, and some additional claims arising from incidents which are not included in the plaintiff’s claim. These differences aside, the defendants’ contention that the claims in each case mirror each other is fairly made out.
Given that the claims mirror each other, and that the current plaintiff was a witness for her husband in every claim which she now makes in her own right both before and after her appointment as his litigation guardian, I consider that the Court would, in all probability, have permitted her to be joined as a plaintiff to her husband’s proceedings had such application been made in a timely way. This would ordinarily require the consent of the existing plaintiff at least, if not the defendants as well, but once the degree of overlap of the claims of husband and wife arising from the facts became apparent I consider that the Court would have enabled the joint hearing of both claims, subject to questions of prejudice to the defendants, even if the existing plaintiff opposed that course. The sufficient point is that no such application was made by the current plaintiff, and it could have been, and she did not commence her own proceedings until after the determination at trial of her husband’s proceedings, although she could have in fact.
Accordingly, I conclude that the necessary preconditions for the application of the estoppel, as identified in Gibbs v Kinna, are made out.
Risk of inconsistent judgment
Once the necessary preconditions are established, the risk of a judgment in the second proceeding inconsistent with that in the first is the most important factor to consider in the application of Anshun estoppel. If there is such risk, this will ordinarily be sufficient for the estoppel to apply.
The defendants assert that there is such risk because of the same facts, the identical claims made (save as to the person injured), the identity of defendants in each case, and the findings made by Kyrou J of fact and law on the evidence before him in each factual circumstance that now forms the subject of the plaintiff’s claims arising from incidents 1-10 and 12. Mr Slaveski failed in all his claims arising from these same incidents, with the limited exception of some claims in respect of the search warrant executed on 13 December 2005.
In Solak (No 2) at trial Davies J extracted that portion of the joint judgment of the majority in Anshun that appeared to take a broad view of when a judgment in a subsequent action may conflict with that in the earlier proceeding. Gibbs CJ, Mason and Aickin JJ held that:
By “conflicting judgments” we include judgments which are contradictory, though they may not be pronounced on the same cause of action. It is enough that they appear to declare rights which are inconsistent in respect to the same transaction.[25]
[25]Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 at 603-4, cited in Solak (No 2) at [10].
In the defendants’ case, if the plaintiff is any more successful than her husband in respect of her claims arising from the same facts as considered in his, that judgment could appear to be inconsistent with the judgment in his case.
It does not seem to me, however, that the Court of Appeal has been disposed to give such a broad interpretation to inconsistent judgments. In Gibbs v Kinna, claims by the same plaintiff arising out of the fact of his dismissal from employment by the same defendants were held not to run the risk of inconsistent judgments, only, at most, estoppel in relation to certain issues or factual findings i.e. issue estoppel. A fine analysis of the possibility of inconsistent judgments was also undertaken in Hopkins v King and in Solak (No 2) in the Court of Appeal.
The defendants did not in this case raise or elaborate upon the difference between issue estoppel and Anshun estoppel. Given that they did not do so, it is understandable that nor did the unrepresented plaintiff. For current purposes it is sufficient to note the classic statement of issue estoppel by Dixon J in Blair v Curran.[26] That statement commences:
A judicial determination directly involving an issue of fact or of law disposes once and for all of the issue, so that it cannot afterwards be raised between the same parties or their privies. The estoppel covers only those matters which the prior judgment, decree or order necessarily established as the legal foundation or justification of its conclusion.[27]
[26](1939) 62 CLR 464
[27]Ibid, at 531
That statement emphasises that careful analysis is required to determine those issues on which a party may be estopped from further litigation, and, significantly, that issue estoppel is limited to the same parties, or their “privies”. A “privy” in this legal sense includes those persons upon whom the party’s interests have devolved by bankruptcy, death or assignment.[28] Whether or not that would include a litigation guardian who then seeks to sue in her own interest, not in the interest of the person she formally represented, is debatable.It may be that there would be no issue estoppel as between the plaintiff and the defendants against whom her husband litigated the same claims, because they were in his interest, not hers. Whether there may be some other basis on which the plaintiff would be bound to accept the findings of fact made by Kyrou J, as has been held in some cases where a new party in subsequent litigation seeks to canvass the same facts as determined in earlier litigation between other parties,[29] was not argued.
[28]Spencer, Bower and Handley, Res Judicata, Fourth Edition Butterworths Lexis Nexus 2009 at [9.38].
[29]Res Judicata, ibid, at [9.32].
If there is no estoppel or other basis that prevents the same facts being ventilated again in the plaintiff’s proceedings, then there is the risk that after hearing the evidence relating to the plaintiff’s claims (which one would expect would probably be the same as that in her husband’s case, but may not be) the judge presiding over her trial would reach different factual conclusions to that reached by Kyrou J. Whether or not this would amount to an inconsistent judgment (the parties not being identical) it could bring the administration of justice into disrepute. Avoiding that consequence, and preserving the subsequent re-consideration of factual findings for appeal only, is one of the principal purposes of the various forms of procedural estoppel.
I do not, however, consider that the defendants have shown that this is a risk of inconsistent judgments as such. The necessary fine analysis to reach this conclusion is shown in all the Court of Appeal authorities to which I have referred. I conclude that there is a risk of inconsistent findings on the facts and the law, and that this is a factor tending towards Anshun estoppel. I do not consider, however, that it is conclusive as to its application here. Accordingly, I will proceed to consider other aspects of the proceedings to determine whether the defendants succeed in this aspect of their case.
Character of previous proceeding; scope of pleadings and length and complexity of the previous trial
The first matter I consider relevant under this heading is that Mr Slaveski’s case was of the same type, and concerned the same general causes of action as the plaintiff’s. The allegations in each case are detailed in pleadings, and, as previously noted, those pleadings are relevantly identical, save as to person said to be injured. Mr Slaveski’s case was before the same Court as the plaintiff’s, and the same procedural and evidentiary rules will apply to the plaintiff’s case, if it continues, as applied to her husband’s. Ultimately, if the current case continues to trial it will be heard by the same level of judicial officer as heard Mr Slaveski’s case. In all these respects the current case is quite unlike the situation in Gibbs v Kinna. All these matters favour the application of an Anshun estoppel. They were all known, or knowable, at least by the date Mr Slaveski’s trial commenced, and even before.
The defendants also rely on the very great length of trial in Mr Slaveski’s proceedings. The trial ran for over a year, occupying 115 sitting days and generating 16,166 pages of transcript.[30] There were at least 17 witnesses for the plaintiff and 40 defence witnesses.[31] The witnesses for the plaintiff included third parties, with no apparent connection to the plaintiff or interest in the success of his proceedings.[32] There were multiple interlocutory matters determined, and possible contempts committed by Mr Slaveski, some of which lead to subsequent proceedings. The judgment of Kyrou J runs for 655 pages and contains an exhaustive analysis of the facts and the law in respect of every claim brought by Mr Slaveski. If the plaintiff were permitted to continue the current proceedings arising from the same facts against the same defendants, evidence about these facts would need to be given again, and essentially the same issues (save as to person affected) determined again. Independent witnesses would presumably be required to give evidence again. The Court would be required to devote more resources to the determination of issues already exhaustively examined. This would have the necessary consequence of diverting resources that could otherwise be devoted to the determination of the claims of other litigants.
[30]Slaveski at [53]
[31]Slaveski at [76]. This number may exclude Mr and Mrs Slaveski, and may refer only to the period after the plaintiff’s appointment as litigation guardian.
[32]For example, independent witnesses were called by the plaintiff in respect of the claims arising from the 20 July 2006 incident at Epping Plaza.
A similar conclusion flows in relation to the resources of the defendants, represented as they were in Mr Slaveski’s proceeding and are in this by the State. Had the plaintiff joined her claims to those of her husband in his proceeding, both their claims could have been heard and determined in the one proceeding without the necessity for the evidence of the same witnesses, both for plaintiffs and defendants, being given twice, with the attendant cost, delay, inconvenience to witnesses and diversion of resources from other public purposes.
I also note that the very great length of the trial was found by Kyrou J to be at least in part due to the conduct of the current plaintiff. His Honour found that the trial considerably exceeded the time that was reasonably required to deal with the issues in the proceeding, and principally attributed this inordinate delay to “ a combination of Mr Slaveski’s mental illness and the lack of legal representation”[33]. In the immediately following paragraphs he describes various incidences of disruptive conduct by Mr Slaveski. His Honour did not find that the current plaintiff was responsible for that conduct, and Kyrou J commended her for her conduct of the trial as litigation guardian in a number of respects, finding that “no other lay advocate could have done a better job in presenting (her husband’s) case”.[34] Kyrou J did, however, also find that the current plaintiff herself contributed to delay in the conduct of the trial before him.[35]
[33][53]
[34]At [76]
[35]At [77]-[83].
All of these matters speak of the very considerable resources that have already been devoted by the Court, the current plaintiff and the defendants, to the exploration and determination of claims now sought, in relation to some claims, to be essentially re-litigated, save for alleged injury to the plaintiff rather than her husband.Where I consider that there is doubt in the defendants’ case is in relation to the relevance of these matters to Anshun estoppel as opposed to summary dismissal on the basis of abuse of process in more general terms. In that exercise, both the prejudice to the plaintiff in determining her proceedings summarily, and the prejudice to the defendants and the impact on Court resources if a further lengthy trial on the same issues as previously determined was permitted, would be relevant.The authorities to which the defendants have taken me do not explicitly refer to prejudice to the defendants or duplication in the expenditure of Court resources as relevant factors in relation to Anshun estoppel, however, although it may be that these necessarily arise from a consideration of the reasonableness of the actions of the party who seeks to re-litigate.
Formally, paragraph 1 of the defendants’ summons filed 4 June 2002 relies on abuse of process pursuant to r 23.01 of the Rules as a basis, conjunctively expressed with estoppel, for summary dismissal of the claims arising from incidents also considered by Kyrou J. This was not how the case was argued, however. Abuse of process is referred to in the defendants’ written submissions as an underlying principle, but not as a basis in itself for dismissal, and the defendants’ case as elaborated in their oral submissions relied specifically on Anshun estoppel.[36]
[36]See, for example, transcript page 21 ll 21-22
There is a further difficulty in taking into account the ultimate length of the trial and degree of detailed consideration given to the facts and legal issues arising from them by Kyrou J in his judgment. That difficulty arises because the defendants assert that the relevant point in time for assessing the reasonableness or otherwise of the plaintiff’s actions in not bringing forward her own case at the same time as her husband’s is the date of commencement of her husband’s trial. Its ultimate length and the detail of the judgment were not known at that time, and perhaps could not have been known.
I note these difficulties, but given my ultimate conclusion it is not necessary in this judgment to give further consideration to the difference between these possible bases for summary dismissal, nor appropriate to do so in the absence of argument on that point. For current purposes I accept that it was, or should have been, at least apparent to the plaintiff by the commencement of her husband’s trial that if she wished to bring her own action arising from the same facts, that would involve considerable duplication, even if the actual amount of resources that would be required to be duplicated could not then have been known.
Plaintiff’s detailed knowledge of and involvement in the previous proceeding; her own proceedings in contemplation
In support of their contention that the plaintiff should have advanced her own case at the same time as her husband’s, the defendants rely on the plaintiff’s very detailed knowledge of her husband’s proceedings and her extensive involvement in them, both before and after her appointment as his litigation guardian. The plaintiff made complaint on behalf of her husband, herself and their children in respect of some incidents in 2006, either before or shortly after commencement of his proceedings[37]. Kyrou J notes in his judgment that she was “heavily involved” in the preparation of his case for trial.[38] Numerous instances of such involvement are detailed in Ms Nguyen’s affidavit.[39] At the trial itself, the plaintiff was a witness for her husband in respect of every claim that is in common with this proceeding, and even before her appointment as his litigation guardian she was permitted to make submissions on his behalf as a lay advocate, as well as being his assistant or McKenzie friend. Subsequent to that appointment she ran the trial for him as his lay advocate. She cross examined witnesses, including the defendants she now seeks to sue in her own right as an unrepresented litigant; signed pleadings; and made submissions.[40]
[37]Letter dated 18 August 2006 from the plaintiff to officer Lowerson, referred to in the judgment of Kyrou J at [1989]
[38]At [370].
[39]Affidavit of Hong Nguyen affirmed 4 June 2012 [84.2]-[84.18].
[40]Affidavit of Hong Nguyen affirmed 4 June 2012 [76]- [80]; [84.3]-[84.18].
Thus the situation in this case is entirely unlike that of a plaintiff unconnected with the earlier proceeding who now seeks in her own proceeding to litigate issues and facts the subject of the earlier proceeding. A plaintiff in a subsequent proceeding who had no knowledge of an earlier proceeding brought by another person, although arising from the same facts and against the same defendants, could not reasonably be expected to have sought to join his or her claims to that proceeding. Here, however, the plaintiff was not only aware of her husband’s proceeding by reason of their relationship of marriage and being called as a witness. She was intimately involved in his case in every way.
Further, the plaintiff referred to the possibility of bringing her own proceedings arising out of the events the subject of her husband’s proceedings, both prior to and during the trial of her husband’s proceedings.[41] Mr Slaveski also made oblique reference in his letter of 24 September 2008 to the solicitors for the defendants to possible suit by his wife.[42] The plaintiff herself relies on this point in her oral submissions on a number of occasions, in support of her proposition that she made it plain that she intended to sue herself but was not warned by the defendants or the Court about Anshun estoppel or told of the expiration of the limitation periods. I will return to this issue when considering the matters advanced by the plaintiff in justification. In the defendants’ case these matters are relevant to show that there can be no suggestion that the current plaintiff had not given thought to suing in her own right, or was not aware that the very same facts were being litigated exhaustively in her husband’s proceeding.
[41]Reference to this is made in her letter of 18 August 2006 to officer Lowerson. She also referred to this as an intention in her address to the Court during the trial on 15 September 2009- see Nguyen affidavit at [85.3].
[42]Nguyen affidavit at [84.1].
Matters advanced as justification
The matters I have considered to date relate broadly to the similarity of the proceedings, and the state of knowledge of the plaintiff of the earlier proceedings and of possible claims arising from the same facts, and so capacity to seek to be joined. I now consider matters advanced by the plaintiff as justification for not joining her claims to those of her husband.
Different person and not previously a plaintiff
A principal submission of the plaintiff in opposition to the application of Anshun estoppel is that she is a separate person to her husband and has her own right to sue. Those propositions are undeniably correct. As I have sought to show, however, an additional and distinct plaintiff can be joined to an existing proceeding as a matter of law. The possibility that in certain circumstances it may be unreasonable for a particular new plaintiff not to seek to do so cannot be excluded.
The plaintiff also says that her rights were relevantly distinguishable from that of her husband because it was an aspect of the defendants’ defence against her husband that he was a person of interest to them in their capacity as law enforcement officers, whereas it was never asserted that she was. I assume for the purposes of this judgment that this is a relevant distinction, although I am unable to conclude that it was as I have not been referred to any relevant portions of the evidence or judgment in the Slaveski trial. I do not consider this difference to be sufficient justification in itself for the plaintiff not advancing her own case at the same time as her husband’s. Different facts may apply to different plaintiffs but unless those facts amount to inconsistent cases, which would not have been the situation here, different factual circumstances are not usually a bar to both plaintiffs pursuing their cases in the one proceeding.
The real force of this aspect of the plaintiff’s case is that she was not a party to her husband’s case, and it would be a considerable extension to the Anshun principle to apply it to her when in the only case to which the defendants have taken me where the parties in the subsequent proceeding were not parties in the first was overturned on appeal.
Judgment of Kyrou J is incorrect
The plaintiff says in answer to the contention that if her proceedings continue there is a risk of a judgment inconsistent with that of Kyrou J that this not a concern because his judgment is wrong. This submission is flawed. The mechanism for exposing error in a judgment at trial is by appeal, not by subsequent proceeding seeking to re-litigate the same facts and issues. Mr Slaveski, through the current plaintiff as his litigation guardian, did seek to appeal the judgment of Kyrou J, and that appeal was dismissed. The appeal was dismissed without hearing on the merits, on the basis that the appellant had failed to pay the sum ordered to be paid for security for costs, but the basis on which the appeal was dismissed is not relevant for this purpose. A judgment at trial is presumed to be correct, unless overturned on appeal, whatever the reason the appeal was dismissed.
Lack of legal knowledge
The plaintiff is not legally represented, and nor was her husband. I accept the submission that this is a relevant factor in determining whether or not it was unreasonable of her not to advance her own case in the same trial as her husband’s. Neither she nor her husband could be expected to know the detail of estoppel principles, or, perhaps, even of their existence.
Ignorance of the law is not generally an excuse for non compliance with it. The importance of the absence of legal representation will also depend on the competence of the unrepresented person. Kyrou J found that the plaintiff was diligent and determined in her conduct of her husband’s case, and her submissions in this case also show an intelligent appreciation of relevant issues. I consider the fact that neither she nor her husband were legally represented and so did not have ready access to legal advice as to the possible impact of Anshun estoppel and the general advisability of bringing proceedings for both at the same time militates against the application of Anshun estoppel, but is not decisive. There were also occasions both before and during the trial when the plaintiff or Mr Slaveski indicated that the plaintiff had, or would, seek legal advice, and she was required to do so by Kyrou J by his judgment in December 2009 appointing her litigation guardian.[43] I consider these matters further below.
[43]Slaveski v Victoria [2009] VSC 596, exhibit HN-8 to Ms Nguyen’s first affidavit, at [52].
Lack of warning by the Court and defendants
The plaintiff agrees that she made it plain in the trial that she wished to sue as well as her husband, but she says she was not warned either by the Court or by the defendants that she should seek to join her claims to those of her husband. I have not read the transcript of her husband’s proceedings, nor been taken to any portion of the judgment of Kyrou J where this issue is discussed (if it is discussed at all in the judgment). The defendants do not disagree that the plaintiff was not warned, and I accept that that was the case for the purpose of these applications.
In relation to the failure on the part of the defendants to so warn her, I accept the submission of counsel for the defendants that they were under no obligation to do so. They are not her legal advisors, and are not required to speculate about her intentions. At the very highest it might have been advisable, in their own interests, to put her on notice of the stance they would take if she did take subsequent proceedings in her own right. This would only have arisen, however, if they had been put on sufficiently clear notice by her that she definitely proposed to bring her own action at a later point in time.
In that regard, the plaintiff has not taken me to any such clear notice by correspondence or statement outside the trial. The defendants have taken me to the plaintiff’s letter of 18 August 2006 to officer Lowerson, as evidence of her intention to sue. Officer Lowerson denied receiving this letter, but Kyrou J found that he did receive it, and ignored it.[44] The letter was a complaint about failure to investigate Mr Slaveski’s reports of threatening phone calls. It included a statement that “They (police officers) have scared him and my self and of course our three children for life. There is no amount of money or any compensation that can replace that pain.” The only other portion of the letter that is in evidence before me that relates to the plaintiff, states “If I do not receive a reply in writing from you within 7 days from this letter, I will have no other choice but to take further legal steps on mine and my children’s behalf”.[45]
[44]Judgment of Kyrou J at [2097(d)]
[45]Ibid, at [1990].
In its context, I do not consider that this letter assists the plaintiff in her submission that the defendants should have warned her to sue at the same time as her husband. The references to injury to herself as well as her husband are general, and Mr Slaveski himself did not bring his own proceedings until after the date of this letter on 5 September 2006 when he filed his writ, and did not file a statement of claim until a year later.[46] I do not know when either was served.
[46]Transcript before me page 106 at lines 8-9.
The plaintiff has only cited one instance where she indicated in court that she would or may bring her own proceedings, being an occasion on 15 September 2009 in response to comments made by Kyrou J following an outburst from Mr Slaveski, who was then appearing for himself. The defendants also rely on this statement in support of their proposition that the plaintiff intended to sue in her own right. [47] The relevant statement is “Even if I die I will sue this State of Victoria and Victoria Police and my children and I will definitely leave this state and possibly this country. I cannot live like this Your Honour. I cannot live like this.”[48]
[47]Plaintiff’s affidavit sworn 4 March 2013, and HN-38 to Ms Nguyen’s affidavit.
[48]Ibid, at transcript page 2578 ll 7-11.
This statement must be seen in the context of a response to the warning given by His Honour that Mr Slaveski’s proceedings may be stayed unless a way could be found to ensure they proceeded in a more appropriate manner. Even reading from the transcript it appears the plaintiff was emotional and the trial at a key point. I do not think that this statement can be seen as clear and unequivocal notice of an intention to sue in her own right. The extracted portion of transcript also shows that Kyrou J urged both Mr and Mrs Slaveska to seek legal advice and assistance, and that Mrs Slaveska, the current plaintiff, said she would endeavour to do so.[49] The defendants could have assumed from this that the plaintiff would seek her own legal advice, if in fact she had not already done so. I note that Mr Slaveski had implied she had already done so in his letter of 24 September 2008 to the solicitors for the defendants.[50] The plaintiff in her affidavit sworn 22 September 2009 filed in her husband’s proceedings following this urging by Kyrou J to seek legal assistance makes reference to the plaintiff’s “former solicitor” Fiona McRae from Eggleston Mitchell Lawyers, and so it appears that the plaintiff had indeed had some legal advice at some point, although it is not stated to what this related.[51]
[49]Transcript before Kyrou J at page 2578, line 13 and page 2581 at line 29
[50]HN-17 to Ms Nguyen’s affidavit.
[51]Exhibit HN-34 to Ms Nguyen’s affidavit, at [23].
In relation to the absence of warning by the Court of the possible application of Anshun estoppel to her own case, the plaintiff relies on the duty of the Court to assist an unrepresented litigant. This duty was discussed in detail by Bell J in Tomasevic v Travaglini and anor (“Tomasevic”)[52]. Bell J held that a judge has a duty in both civil and criminal trials to give such assistance as is required to an unrepresented litigant, as an aspect of the primary duty of the judge to ensure the trial is fair. What is required in a particular case will depend on the particular litigant and the facts of the case. He noted that “(t)he assistance may extend to issues concerning substantive legal rights as well as to issues concerning the procedure that will be followed.”[53]
[52][2007] VSC 337
[53]Ibid, at [141].
Tomasevic has been cited with approval in a number of subsequent Court of Appeal decisions.[54] The duty it identifies is subject to specific limitations, however. For current purposes two relevant limitations are as follows. First, as the duty arises from the judge’s obligation to ensure that the trial being presently conducted is fair, the duty is owed to the unrepresented litigant in that trial, not other possible unrepresented litigants in possible future trials. Secondly, the judge may not become the advocate or advisor of the unrepresented litigant, because to do that would be to go beyond judicial neutrality and afford an advantage to the self represented litigant, not merely seek to address the disadvantage under which an unrepresented litigant labours to the extent required to afford fairness. It is this that underlies the restriction that in seeking to ensure that an unrepresented litigant understands his or her rights, including substantive rights:
the court should refrain from advising a litigant how or when the litigant should exercise those rights, and, in particular, the court should be astute to ensure that it does not become, nor be perceived to become, an advocate or counsel in the cause of the unrepresented litigant.[55](emphasis added)
[54]McWhinney v Melbourne Health [2011] VSCA 22 at [25]-[26]; Pamamull v Albrizzi (Sales) Pty Ltd (No 2) [2011] VSCA 260 at [97] ff; Slaveski v Rotstein and Associates Pty Ltd [2012] VSCA 291 at [17]; Werden v Legal Service Board [2012] VSCA 278; and Pham v Drakopoulos and ors [2013] VSCA 43 at [54]-[56].
[55]Russell v Yarra Ranges Shire Council [2009] VSC 486 at [18] cited in Pamamull v Albrizzi (Sales) Pty Ltd (No 2) [2011] VSCA 260 at [102].
In my view, there is no basis in this case for assertion that Kyrou J was under any duty to inform the plaintiff of the possible application of Anshun estoppel should she subsequently seek to issue proceedings in her own right. The contention fails at the outset because the current plaintiff was not the relevant unrepresented litigant in the case before Kyrou J- her husband was. Kyrou J’s duty was to ensure the trial of her husband’s proceeding before him was fair, not to speculate on potential future proceedings arising from the same facts by a different plaintiff.
I say “speculate” because the plaintiff has not shown that she drew the prospect of such future proceedings sufficiently to the attention of Kyrou J for him to take any action, even if it had been required. While she asserts that she made it plain in court that she proposed to institute her own proceedings, she has referred me to only one portion of transcript in support, being the portion I have analysed above. For the same reasons that her statements in court on that occasion cannot be seen as unequivocal notice to the defendants of an intention to sue in her own right, they are not sufficient notice to the Court of any such intention. For the Court to respond to these comments, other than by the encouragement to seek legal advice which was given, would have been both speculative, and arguably amount to advice to a prospective litigant on how and when to exercise her rights, which would go impermissibly beyond what was required.
Prejudice to the conduct of her husband’s case
The plaintiff asserts that it would have been prejudicial to the conduct of her husband’s case to seek to be plaintiff in her own right as well. She has referred to two aspects of possible prejudice- one being that prejudice would have been occasioned by application to be joined after all the interlocutory steps in her husband’s proceedings had been completed (which, she notes would have prejudiced the defendants as well);[56] and the other being that to be a plaintiff in her own right would have been inconsistent with her duty as litigation guardian. There are two limbs to this latter point- one being that if she was a plaintiff as well, she would not have had as much time to devote to her husband’s case;[57] and the other that she was told by Kyrou J that “ I cannot have any personal interest in the case if I help Mr Slaveski”.[58]
[56]Oral submissions, transcript page 86 ll 10-16, page 106 ll 12-15.
[57]Oral submissions, transcript page 106 at ll 16-20.
[58]Oral submissions, transcript page 104 at ll 23-31
The defendants say that the relevant time for the purpose of consideration of the reasonableness of the plaintiff failing to advance her own case at the same time as her husband’s is the commencement of his trial.[59] On the basis of this submission, they say that her appointment as litigation guardian was not relevant, because she was not appointed as such until some time later. I do not consider that identifying the commencement of the trial as the relevant point in time advances the defendants’ submission. Although the plaintiff was not her husband’s formal representative until later in the trial, she was prior to this time his McKenzie friend, and, as the defendants have been at pains to point out, had already worked with him in the preparation of his case to a very considerable degree from the commencement of his proceedings.
[59]Oral submissions, transcript page 115 l 17- page 117 l 7.
Further, this submission does not address the plaintiff’s submission that amendment to the writ and statement of claim to add her as a plaintiff prior to the commencement of the trial would have caused prejudice to his case, both to him and to the defendants. Indeed, it is antithetical to it. No doubt had an application to join her as another plaintiff been made when her husband’s proceedings were otherwise ready for trial, in particular had it been made on the first day of the trial, adjournment and re-pleading, as a minimum, would have been required and so substantial prejudice occasioned.
In support of her contention that she was told by the Court that she could not advance her personal interests in the trial, the plaintiff has referred me only to one portion of transcript, although she says she was so instructed on a number of occasions. The portion she has identified occurred in September 2009, prior to her appointment as litigation guardian, during which Kyrou J explained to the plaintiff what was involved in the task of being the litigation guardian for her husband, should she be so appointed. Kyrou J relevantly said as follows:
In order for you to be appointed litigation guardian, Mrs Slaveska, you must not have an interest in the proceeding which is adverse to Mr Slaveski. You must not have a conflict of interest, in other words. That’s what that means. You will need to obtain separate legal advice about your role and responsibilities as litigation guardian before you consent to being appointed. There’s nothing in the Court rules that says that but I am strongly advising you to obtain independent legal advice before you agree to become litigation guardian, should that be necessary. (emphasis added)[60]
[60]Exhibit SAS-1 to the plaintiff’s affidavit sworn 4 March 2013, said to be drawn from transcript pages 2624-2626 before Kyrou J. Kyrou J continued with an explanation as to the costs implications, Mr Slaveski’s role she was appointed litigation guardian, and her role if she was permitted to conduct the case without legal representation.
Kyrou J repeated these requirements in his judgment of 14 December 2009 by which he indicated he would appoint the plaintiff litigation guardian for her husband.[61] He dealt with the necessity that the litigation guardian not have an interest adverse to the person under disability in four portions of his judgment- first by setting out the relevant portion of the rules in that regard (r 15.03(1) (b)) and then in paragraphs 36, 46 and 52 which state as follows (citations omitted and emphasis added):
[61]Slaveski v State of Victoria [2009] VSC 596, which is exhibit HN-8 to Ms Nguyen’s first affidavit.
Once a litigation guardian is appointed, he or she stands in the shoes of the person under a disability and must act in the interests of that person. The litigation guardian has the conduct of the proceeding, including responsibility for the engagement of legal representatives and the giving of instructions about the calling of witnesses and the settlement of the proceeding. …
Mrs Slaveska does not appear to have any interest in the proceeding which is adverse to that of Mr Slaveski. She will, however, be required to swear an affidavit containing a declaration to that effect. …
Before Mrs Slaveska’s appointment as litigation guardian takes effect, she will be required to file and serve an affidavit confirming that she has received independent legal advice about her role, responsibilities and potential liabilities as a litigation guardian. As I have mentioned in [0] above, the affidavit will also contain a declaration that she does not have any interest in the proceeding which is adverse to that of Mr Slaveski. As I have decided to dispense with compliance with r 15.02(3), I will also dispense with compliance with r 15.03(6)(b).
The plaintiff has referred to her affidavit in support of her contention that she could not act for both herself and her husband in that trial, but the affidavit has not been put in evidence before me in this application. I will assume it states that she received the required independent legal advice.
To a lawyer, it is plain that Kyrou J in both the extract from the transcript and his judgment was stating that the plaintiff could not have an interest adverse to that of her husband. He was not saying that she could not have an interest in the proceedings similar to that of her husband. Indeed, it is often the case that when, for example, both a parent and child are injured by the one act, both would be plaintiffs, the parent both in his or her own right and as litigation guardian for the child. I consider it possible that the subtlety of this distinction may not be appreciated by an unrepresented litigant or litigation guardian, but the plaintiff was required to obtain independent legal advice about her role as litigation guardian and that requirement would have given her the opportunity to clarify any impact of her role as litigation guardian in respect of her own causes of action.
On the other hand, even if the plaintiff had had a proper appreciation that there was no conflict between her interests and those of her husband, their interests and cases are not completely identical. In relation to some incidents there may be differences in relation to causation or apprehension of danger, and there are presumably differences throughout in relation to loss. These differences are not as significant as the similarities in the underlying facts, and a lawyer would know that they could easily have been accommodated had the two sets of claims been joined. I do not think, however, that the plaintiff as a lay person focused on advancing her husband’s case, and then charged as litigation guardian with the duty of doing so, was unreasonable in considering that advancing her own case with its differences to her husband’s would have detracted from the energy she could give to his.
This discussion focuses on the trial itself. As is discussed further in relation to the limitation issues, I do not consider that assistance to her husband is a sufficient explanation for the plaintiff not bringing her own proceeding prior to her husband’s trial, or in a more timely fashion once the trial was concluded. I consider that the plaintiff was not unreasonable in considering that, while the trial was being conducted, she needed to focus on her husband’s case rather than pursuing her own as well.
Charter
The plaintiff has relied on various sections of the Charter in resistance to the defendants’ summons, including ss 5 (Charter does not limit other rights), 8 (equality before the law), 9 (right to life), 10 (protection from torture), 12 (freedom of movement), 13 (privacy and reputation), 17 (protection of families and children) and 24 (fair hearing). Given my conclusions in relation to Anshun estoppel on other grounds, I do not need to consider these matters for the present. I will return to them later in this judgment.
Conclusion on Anshun estoppel in relation to Slaveski proceedings
To summarily dismiss certain of the plaintiff’s claims on the basis of Anshun estoppel I must be persuaded that it is very clear that the estoppel would apply. The burden of that persuasion is on the defendants. On balance, I do not consider that the defendants have discharged that onus.
The most significant factors in support of the defendants’ contention are the resources proved by the trial and judgment to have been required to determine her husband’s case, and the duplication and prejudice to the defendants that would be involved in re-litigation of the same facts and issues. These are very real factors that militate against litigation at trial of the plaintiff’s causes of action arising from the same events. I do not consider, however, that these factors are best reflected in an extended and, to the extent I have not been referred to any previous instance of the doctrine being applied to a new plaintiff, novel application of the Anshun principle. They may tend towards dismissal on more general abuse of process grounds, but this was not the focus of the defendants’ submissions. These same factors are also relevant to the enquiry as to whether it is just and reasonable to extend time to permit the plaintiff to litigate causes of action that were out of time at the commencement of her proceeding. In respect of that question, the plaintiff, not the defendants, bear the onus of proof. It is for the plaintiff to show that it would be just and reasonable to extend time to commence her proceeding, which involves explanation of her delay, and as will be seen, I do not consider that she has done so.
In relation to the danger of inconsistent judgments, I accept that any re-litigation will require consideration of the same facts and, by and large, the same legal issues as were considered by Kyrou J, and so there is a risk of different conclusions of fact or law being reached. I am not persuaded, however, that there is a risk of conflicting judgments in the strict sense, given the change in identity of the plaintiff.
The risk that another judge would reach different conclusions may in fact be small, given that one would assume the evidence in this proceeding would be similar to that in Mr Slaveski’s proceedings, and given the comprehensiveness and authoritative nature of the judgment of Kyrou J. The defendants have not argued, however, for summary judgment on the merits of the plaintiff’s case, save in relation to their argument based on His Honour’s findings as to duty to investigate, which I will consider shortly.
In reaching my conclusion that no Anshun estoppel should apply I give considerable weight to the caution expressed by the Court of Appeal on appeal from Solak (No 2) against the too ready application of the doctrine where the subsequent proceeding is against a new defendant. I consider even greater caution should apply in extending the doctrine to a new plaintiff, albeit one with very great involvement in the earlier proceedings. I also take into account that although this new plaintiff was substantially involved in various capacities in the earlier proceedings, neither she nor her husband were legally represented at the time the trial commenced (although Mr Slaveski had been at earlier stages of his proceeding). That is significant because the defendants rely on the commencement of the trial as the relevant date at which the reasonableness of the plaintiff’s actions should be judged. In the absence of legal advice at that time, I do not think it could be said to be unreasonable for her to believe that she could not discharge her duty as first McKenzie friend and then litigation guardian to her husband if she was also pursuing her own claims at the same time.
It follows that I will dismiss paragraph 1 of the defendants’ summons on the merits.
Anshun estoppel: incident 16 and the contempt proceedings against Mr Slaveski
The defendants also seek to rely on Anshun estoppel in respect of incident 16. The plaintiff pleads that on 2 June 2010 officer Busic tried to kill her and her husband when they were on their way to court, by abusing them and placing his hands on his gun in order to shoot them. These alleged facts were the subject of evidence before Whelan J in contempt proceedings arising from Mr Slaveski’s actions in the trial before Kyrou J on that day. Mr Slaveski in his defence asserted that his actions in court were a response to officer Busic’s threats and subsequent events in the courtroom.[62]
[62]Judgment of Whelan J, The Queen v Lupco Slaveski [2011] VSC 643 at [14]-[15].
The defendants assert that the estoppel applies because the defence called officer Busic to give evidence in the contempt proceedings about the events, and the plaintiff and her husband gave evidence. Whelan J rejected their evidence that officer Busic had threatened them with a gun.[63] The defendants say that to allow the plaintiff to proceed with the claims she now makes arising from the same facts gives rise to a risk of inconsistent judgments and for that reason she should be estopped.
[63]Ibid, at [133].
The plaintiff says no estoppel should apply because the proceedings before Whelan J were criminal in nature, with a different onus of proof and concerning different issues. Counsel for the defendants concedes that the case for application of the estoppel to claims arising from incident 16 is weaker than its application to the claims arising from the incidents the subject of consideration in the civil Slaveski trial. Counsel also concedes that the potential for conflict between criminal and civil proceedings arising from the same facts may often arise, but says this is a special case because of the detail of the findings by Whelan J in the criminal proceedings (as opposed to a jury verdict, for example, where there are no findings of fact) and because it was at the defence behest that the evidence was given.[64]
[64]Oral submissions, transcript pages 117-119.
In my view, the defendants’ application for Anshun estoppel in respect of claims arising from this incident fails at the outset, under the preconditions for the application of the estoppel as determined by Kenny JA in Gibbs v Kinna. The proceedings before Whelan J were criminal in nature. Although the defence chose to call officer Busic and Mr and Mrs Slaveska chose to give evidence about those events, the plaintiff could not have brought her current civil claims in that proceeding. Further, I do not consider a judgment in a civil proceeding can be said to be inconsistent in the Anshun sense, as interpreted by the Court of Appeal, with an earlier judgment or finding in a criminal case.
The defendants may also in their submissions have misconstrued the degree to which the current plaintiff was in control of the defence in the contempt proceedings. In oral submissions counsel for the defendants submitted that the estoppel applied because Mrs Slaveska had subpoened officer Busic i.e. it was the choice of the current plaintiff to call officer Busic in that proceeding and so ventilate the events that also give rise to her civil claims. This is not what is recorded in the judgment of Whelan J. The judgment sets out that Mr Slaveski was found fit to plead, and thereafter initially instructed counsel and subsequently appeared for himself.[65] The plaintiff was not his litigation guardian. In particular, the judgment records that the officer was subpoened by Mr Slaveski’s lawyers, and after they withdrew was called by Mr Slaveski who was given leave to cross examine him.[66]
[65]Ibid, at [8]-[10].
[66]Ibid, at [128].
Other challenge may be available to the defendants in respect of claims arising from this incident, but they are not made in this application. The plaintiff pleads in paragraph [94] of her amended statement of claim that officer Busic “placed his hands on the gun in order to shoot the plaintiff and her husband”. Whelan J records in his judgment that before him “Mrs Slaveska never suggested anything more than a movement towards the gun, except in answer to a leading question from her husband.”[67] Thus her current pleading may be inconsistent with her former evidence, but that issue is not squarely before me.
[67]Ibid, at [135].
It follows that I dismiss paragraph 13 of the defendants’ summons on the merits.
Limitation period
The defendants assert that all claims except those arising from incidents 16 and 17 are time barred. They have sought summary judgment for the defendants on this basis in paragraph 17 of their summons (in relation to incidents 1-15 inclusive) pursuant to r 23.03. Other paragraphs of their summons may also be intended to embrace challenge on this ground- in particular paragraphs 6 (in relation to incident 13), 8 (in relation to incident 14), and 10 (in relation to incident 15). The plaintiff seeks by her summons filed 30 October 2012 an extension of time pursuant to the Limitations of Actions Act sufficient to enable her to prosecute those claims.
For the reasons here set out, I refuse the plaintiff’s application and give judgment for the defendants on claims made arising from incidents 1-14 inclusive on the grounds that they are statute barred. I do not consider that the pleading in respect of incident 15 or the other material before me allows me to conclude that it is time barred. I will strike out the current pleading on other grounds, however, and the defendants are at liberty to make application for summary judgment on the basis of time bar or other ground if that claim is re-pleaded.
The statutory periods of limitation
All the claims that the plaintiff seeks to make in these proceedings are founded on tort or breach of statutory duty. The law formerly provided for a six year period of limitation for the bringing of such actions. That limitation period ran from the date the cause of action accrued and was stipulated in s 5(1)(a) of the Limitation of Actions Act.
In 2002 the limitation period was shortened. The period within which an action for damages for personal injury (whatever the cause of action) may be brought was restricted to three years from the date on which the cause of action accrued. The amendments were effected by Act No. 52 of 2002 the Limitation of Actions (Amendment) Act 2002. The effect of the transitional provisions was to apply this new limitation period to causes of actions that accrue on or after 5 November 2002.
That three year limitation period now appears as s 5 (1AA). It is subject to s 5 (1A) which makes special provision for some causes of action for damages for personal injury (including negligence and breach of duty) where the damages sought consist of or include damages in respect of personal injuries consisting of a disease or a disorder contracted by a person. The 2002 amendments did not apply to injuries occasioned in traffic and work accidents. It is not necessary to consider the 2002 amendments further because, as will be shortly demonstrated, none of the causes of action on which the plaintiff relies fall within the time period to which those amendments still apply.
The periods of limitation applicable to actions for damages for personal injury were further amended in 2003 by the Wrongs and Limitations (Insurance Reform) Act 2003. By s 14 of that Act, a new part “Part IIA Personal Injury Actions” was inserted into the Limitation of Actions Act. By s 11 of the amending Act, s 5 of the Limitation of Actions Act was amended to provide that Part IIA, rather than s 5, applies to a cause of action for damages for personal injury. By s 12 of the amending Act, amendments were made to the earlier provisions that applied in respect of extension of time, to provide that Part IIA was now to apply to applications for extension of time.
Under Part IIA of the Limitation of Actions Act, there are two limitation periods that apply to a cause of action for damages for personal injury (with the exception of injuries arising from work and traffic accidents and certain other accidents that are not relevant to this proceeding). Section 27D provides as follows:
27D Limitation period for personal injury actions-general
1) An action in respect of a cause of action to which this Part applies shall not be brought after the expiration of whichever of the following periods is the first to expire-
a)the period of 3 years from the date on which the cause of action is discoverable by the plaintiff;
(b)the period of 12 years from the date of the act or omission alleged to have resulted in the death or personal injury with which the action is concerned.
2) This section does not apply to a cause of action that is founded on a personal injury to a person who was under a disability at the date of the act or omission alleged to have resulted in the personal injury.
The Limitation of Actions Act makes special provision for persons under a disability at the time of the act or omission alleged to have caused personal injury[68]. Section 3(2) of the Act deems a person to be “under a disability” while that person is a minor or of unsound mind. Section 3(3) provides that a person is conclusively presumed to be of “unsound mind” if a protected or represented person under the Guardianship and Administration Act 1986. The plaintiff asserted in her first affidavit that she was under a disability, but she did not develop that assertion in argument or provide any further evidence in support. I do not consider that assertion proved.
[68]S 23 in respect of rights of action not covered by Part IIA and s 27E in respect of causes of action to which that Part applies.
I mention that the limitation period in respect of defamation, which is one of the causes of action on which the plaintiff relies in respect of incident 4, was subsequently further limited to one year. That limitation now appears as s 5 (1AAA) of the Limitation of Actions Act. It is not necessary to consider the shortened limitation period further as it relates to causes of action that accrued after the date of incident 4. The loss claimed by the plaintiff in respect of this cause of action is also said to damages for personal injury, and accordingly it is governed by Part IIA.
Section 27F of Part IIA provides when a cause of action is “discoverable”. The section provides as follows:
27F Date cause of action is discoverable
(1)For the purposes of this Part, a cause of action is discoverable by a person on the first date that the person knows or ought to have known of all of the following facts –
(a)the fact that the death or personal injury has occurred;
(b)the fact that the death or personal injury was caused by the fault of the defendant;
(c)in the case of personal injury, the fact that the personal injury was sufficiently serious to justify the bringing of an action on the cause of action.
(2)A person ought to know of a fact of a particular date if the fact would have been ascertained by the person had the person taken all reasonable steps before that date to ascertain the fact.
(3)In determining what a person knows or ought to have known, a court may have regard to the conduct and statements, oral or in writing, of the person.
(4)(Not relevant).
Section 27N stipulates to what causes of action these 2003 amendments apply. The amendments initially applied only to causes of action where the act or omission alleged to have resulted in the death or personal injury with which the action is concerned occurred on or after 21 May 2003. From 1 October 2003 the Part applies to causes of action where the relevant act or omission occurred before 21 May 2003 as well, with the exception of causes of action for which court proceedings had been commenced before 1 October 2003. The section also provides that the new Part does not extend any period of limitation that would have applied had the Part not been enacted. In other words, the blanket three year limitation period that was introduced by the 2002 amendments is preserved. The effect is that for causes of action arising from acts or omissions that occurred in the period between the two amendments i.e. 5 November 2002 to 20 May 2003 the period of limitation that applies is three years without the provision for a long-stop limitation period. None of the acts to which the plaintiff’s proposed action relates fall within this period.
Application of the statutory limitation periods to these claims
First incident 8 September 2000
All of the acts or omissions which the plaintiff alleges have occasioned personal injury to her occurred after 21 May 2003, the commencing date of the second set of amendments, with the exception of the first incident. That incident took place on 8 September 2000. In their initial submissions the defendants asserted that the relevant date for expiry of the limitation period in the case of each of incidents 1-15 was three years from the date or deemed date of the incident. That was clearly wrong in relation to incident 1, and was corrected in their submissions in response to the plaintiff’s application. The defendants concede in those submissions that the limitation period in respect of causes of action arising from incident 1 is six years from the date the cause of action accrued. The causes of action on which the plaintiff relies in respect of that incident are trespass to land, assault and negligence. A cause of action in trespass to land or assault accrues on the date of the alleged trespass or assault[69] i.e. here 8 September 2000. A cause of action in negligence accrues only on damage being occasioned[70], but it appears from the particulars of injury pleaded that at least some of these injuries were occasioned on the day of the incident itself.
[69]Handford, Limitation of Actions: The Laws of Australia 2nd Edn Thomson LawBook Co 2007 at [5.10.760].
[70]Ibid, at [5.10.810].
The defendants assert that the limitation periods in respect of the causes of action arising from the incident on 8 September 2000 all expired on 7 September 2006, the necessary inference being that they all accrued on 8 September 2000. The plaintiff does not expressly demur from that assertion. In support of her application for extension of time the plaintiff says that she did not personally know the names of all the police officers concerned until the course of her husband’s trial, and that he did not know, despite requests, until September 2007. I will consider these assertions shortly in the context of her application to extend time. For present purposes I consider it correct that time commenced to run against her in respect of the causes of action arising from this incident on the date of the incident, and so expired on 7 September 2006.
Incidents after 21 May 2003
In respect of incidents after 21 May 2003, the three year limitation period runs from the date on which the cause of action is “discoverable”, with an absolute bar after twelve years from the date of the relevant act or omission. The plaintiff has pleaded dates for incidents 2-10 inclusive, and 13-14, being dates in the period 18 December 2003 to 23 September 2008. None of those dates are more than twelve years before she filed her writ on 24 November 2011, but all are more than three years before she filed her writ. Thus, the plaintiff has only brought proceedings in time in respect of a cause of action accruing from any of those incidents if the cause of action was not “discoverable” within the meaning of s 27F until a date after the incident no earlier than 25 November 2008.
Neither party addressed me at length as to the meaning of s 27F or its application to the plaintiff’s proceeding. The defendants’ written submissions asserted that the three year limitation period in respect of incidents 2-15 had expired prior to issue of her writ and made detailed submissions in relation to extension of time only. The implication is that in respect of each of these incidents the defendants submit that the cause of action was “discoverable” on the date of the acts or omissions of which complaint is made, which date is as set out in the table they prepared. The defendants referred me to one case only in respect of s 27F (although their submissions referred to other authority on extension of time), being a decision of Kaye J in Caven Women’s and Children’s Health[71] (“Caven”) and counsel did not speak to that case.
[71]A decision of Kaye J (2007) 15 VR 447, [2007] VSC 7.
The lack of detailed attention at the hands of the defendants to when the causes of action were “discoverable”, and so when the limitation period commenced to run, is regrettable. It should have been the starting point of their primary submission, that the causes of action were time barred. Further, the one authority to which the defendants referred the Court is potentially misleading, as Kaye J revised his opinion on a critical element of s 27F (the meaning of “fault” in s 27F(b)) after Caven, in a subsequent decision Spandideas v Vellar,[72] which in turn went on appeal.[73] That sequence of events is discussed in subsequent authority, both here[74] and in New South Wales[75].
[72][2008] VSC 198.
[73]Vellar v Spandideas [2008] VSCA 139.
[74]See at least Delai v Western District Health Service & anor [2009] VSC 151
[75]See at least Baker-Morrison v State of New South Wales [2009] NSWCA 35
In her oral reply submissions, the plaintiff submitted that the long stop limitation period of 12 years should apply to every incident without specification as to whether this was because the cause of action was not discoverable earlier, or, if it was, time should be extended. As she is unrepresented, and the limitation provisions are complex, I will consider for myself whether the defendants’ implicit submission as to when the causes of action were discoverable is correct, and will consider the plaintiff’s submissions in both contexts i.e. both as to when the cause of action was discoverable, and as to whether time should be extended.
The plaintiff’s amended statement of claim does not specify a date on which incidents 11,12 and 15 occurred. The plaintiff asserted in her written material in respect of incidents 11 and 15 (concerning officers Cornelius, Gutske and Mason) that the date of that officer’s involvement was later than the defendants asserted, and so the limitation period had not expired. She asserts that “their involvement was from 2008”.[76] At the hearing the parties agreed a date of 6 May 2008 or early May 2008 in respect of incident 11[77], which brings it outside three years from the filing of the plaintiff’s writ. In relation to incident 15, the plaintiff said that incident started “late 2008” being the investigation or failure to investigate in 2009 and possibly 2010 a telephone call in July 2008.[78] I will return to these undated incidents shortly.
[76]Affidavit sworn 30 October 2012 at [9].
[77]Transcript page 192, referring to earlier discussion.
[78]Transcript page 198
The plaintiff asserted in her written material that the “Bateman matter” should be allowed as “as the first incident with him happened in September 2007 right through the end of 2008”.[79] She further relied on her involvement in her husband’s trial as reason for extension of time in respect of her claims against officer Bateman, if the limitation period had expired. At the hearing, she also asserted that the defendants would not suffer any prejudice if time was extended in relation to the second Bateman claim, incident 14, which occurred in September 2008 and so her causes of action were only two months out of time when she issued.[80] This would appear to be a concession that that claim was statute barred.
[79]Ibid
[80]Transcript page 198, ll 6-12.
The other specific incidents in respect of which the plaintiff gives either a particular reason for extension of time or contends that time has not expired are incidents 2 (18 December 2003), 3 (14 April 2004), 4 (26 June 2005) and 5 (13 December 2005). I will consider these incidents below.
When were the causes of action “discoverable”?
Pursuant to s 27F the plaintiff’s causes of action in respect of incidents 2-15 were discoverable (and the period of limitation commenced to run) on the first date that she knew, or ought to have known, all of three matters- that she had suffered personal injury; that that injury was caused by the fault of the defendant; and that the personal injury was “sufficiently serious to justify the bringing of an action”. I will consider incidents 11, 12 and 15 (in respect of which the plaintiff has not pleaded the date of the relevant acts or omissions said to have occasioned injury) separately shortly. In respect of each of the other incidents, the plaintiff pleads a date on which the incident occurred and so cause of action arose.
The plaintiff said in her written material that she should be allowed to sue officer Bateman because the first incident with him happened in September 2007 “right through the end of 2008”. To the extent the plaintiff asserts that she has a cause of action in this proceeding against officer Bateman arising so late in 2008 that it is within three years from the filing of her writ, that assertion is incorrect. The only two incidents in respect of which officer Bateman is sued are dated in her amended statement of claim 5 September 2007 and 23 September 2008. She appeared to accept this at the hearing as indicated earlier.
In respect of all the dated incidents, the plaintiff pleads an immediate apprehension or fear or other injury arising from the dated act. I consider this shows that paragraph (a) of s 27F (1) was satisfied in each instance on the date of the act concerned.
Paragraph (c) requires that the plaintiff knew or ought to have known that the personal injury she had suffered was “sufficiently serious to justify the bringing of an action.” The plaintiff has not pleaded when her injuries occurred. Some pleaded injuries, such as those pleaded in the particulars to paragraph 62, (which relates to incident 5 on 13 December 2005), could conceivably, or necessarily, have become evident only at a later point in time to that day. This is because the particulars of injury are loss of weight, loss of appetite, sleeping disorders, symptoms of stress fatigue, anxiety, frequent panic attacks, and post-traumatic stress disorder. Some of these injuries are pleaded in respect of other incidents as well, as well as immediate apprehension.
It is the responsibility of the plaintiff to plead when her injuries were occasioned. The plaintiff was on notice at least from the service of the defendants’ defences upon her that they would contend before trial that all her causes of action, save for those arising from incidents 16 and 17, are time barred. Most of the defences were filed in late January 2012 with a few filed in late February 2012, and presumably were served shortly thereafter. The plaintiff has not filed any replies and in particular has not disputed the allegation that her claims are time barred. As she has not pleaded that her injuries only became sufficiently serious to justify the bringing of an action on a date later than the act or omission she says caused them, I find that paragraph (c) as well as (a) is satisfied in each instance on the date of the act or omission concerned.
I add that neither party made any submissions as to what degree of seriousness of injury is required to satisfy the level required by paragraph (c). The defendants conceded that sufficiently serious injury for the purposes of s 27F relates to when the limitation period commences i.e. whether suit may be brought, not whether or not the plaintiff may recover damages for non economic loss. The 2003 amending Act also introduced amendments to the Wrongs Act1958 (“Wrongs Act”), the effect of which will be, if the proceedings continue and the plaintiff is successful at trial, to exclude any right to recover such damages unless she has suffered “significant injury” within the meaning of s 28LF of the Wrongs Act. The defendants in their defences have pleaded that at trial (emphasis added) they will contend that the plaintiff is precluded from recovering damages for non-economic loss because she has not followed the required procedure to obtain an assessment of her degree of impairment, and that, in any event, she has not suffered “significant injury”. It is not necessary to consider this issue in this application.
Paragraph (b) of s 27 F requires that the plaintiff knew or ought to have known that the personal injury she suffered was “caused by the fault of the defendant” (emphasis added). Two issues arise in relation to this paragraph on the facts of this case. The first is whether the plaintiff must know the name of every defendant in respect of a particular cause of action before this paragraph is satisfied and so the cause of action is “discoverable”. This squarely arises in respect of one incident only- incident 5 (which occurred on 13 December 2005). The plaintiff says that she did not know the name of all police officers involved in this incident until after her husband’s trial had commenced.
The plaintiff’s assertion is consistent with the amendments to her husband’s writ and statement of claim. The defendants have put in evidence at my request all the various amendments to the writ and statement of claim relied upon in Mr Slaveski’s trial. The sequence of amendments show that when he first filed his writ, which was shortly before the limitation period expired in respect of the first incident of which both Mr Slaveski and now the plaintiff complain (which occurred on 8 September 2000), Mr Slaveski sued only officers Bingham, Smithwick, Kirkright and Cole. The general indorsement on this writ referred specifically only to the involvement of those officers in the incident on 8 September 2000 and generally to subsequent injury occasioned at their hands between September 2000 and August 2006. The amended writs show the addition on three occasions of further defendants. The first occurred by 3 September 2007, when Mr Slaveski’s first statement of claim was filed through his solicitors. At that time officers Sadler, Tynneson, Parker, Lowerson, Wheeler, Smith, Roberts, Robinson, Stephen, Rhodes, Barton, Jones, Peck, Nolan and Baade were added. Officer Leemon was added in the first set of amendments after the trial commenced by amended writ and pleading signed by Mr Slaveski personally and dated 5 October 2009. The final joinder of defendants occurred in the second to last amended pleading and writ, dated 10 March 2010, by which officers Wendt, Anderson and Knowles were added. These amendments were signed by the current plaintiff, as her husband’s litigation guardian.
The plaintiff makes no claim against officer Leemon. She does make claims against officers Wendt, Anderson and Knowles in respect of incident 5, which occurred on 13 December 2005. For the purposes of this application I will accept, although there is no real evidence as opposed to assertion to this effect, that the plaintiff did not know the names of those officers (as opposed to the other officers also sued in respect of that incident) until early 2010. Does this mean that time in respect of her causes of action against those officers did not start to run until that date? If so, those causes of action are not time barred.
I do not consider this is shown. Section 27F(1) stipulates that the time period is determined not just according to what a plaintiff “knows”, but also having regard to what she “ought to have known”. Section 27F(2) provides that a person ought to know of a fact at a particular date “if the fact would have been ascertained by the person had the person taken all reasonable steps before that date to ascertain the fact”. I consider that “all reasonable steps” includes the utilisation of available court processes. Such processes include pre-action discovery (by which means the identity of persons involved in an alleged wrong can be ascertained, if not otherwise known, to enable them to be sued) and the usual processes of discovery and interrogation after an action is commenced, by which the names of additional persons involved can be ascertained and the writ amended to join them. As I set out in detail below, the plaintiff knew the names of at least some of the officers involved in incident 5, being officers Sadler and Cole, prior to her husband filed his writ in September 2006. She could have issued her proceedings against those officers within time and utilised the court processes identified above to obtain the names of the other officers involved, including officers Wendt, Anderson and Knowles, and joined them, in all probability also within time. I detail these conclusions below.
The defendants now sued by the plaintiff in respect of incident 5 include officers Sadler and Cole. It is clear that the plaintiff had encountered both officers Sadler and Cole prior to December 2005, officer Sadler in the course of incident 2 in December 2003, and officer Cole in the course of incident 4 in June 2005. Indeed, incident 4 concerned the attempted serving of a proceeding instituted by her husband on officer Sadler arising out of incident 2. Clearly, Mr Slaveski knew officer Sadler’s name by this stage and I infer that so did the plaintiff, given her involvement in attempting to serve the writ.
Indeed, in her oral submissions at the hearing the plaintiff said she knew the identity of officer Sadler from an even earlier date, being December 2004, because that officer had arrested Mr Slaveski the month before.[81] Thus the plaintiff already knew the name of one officer involved in incident 5 when it occurred.
[81]Transcript pages 187-188.
While as earlier indicated, I do not consider that a judgment in this proceeding would be “conflicting” in a strict sense with the judgment of Kyrou J, there is the potential for the judge in this case to reach different conclusions on the facts or the law. As I indicated when discussing Anshun estoppel, the potential for different conclusions on the facts at least may be more theoretical than real, given the likely repetition of the same evidence, and the detail of the consideration given it by Kyrou J. Viewed in either light, however, these factors suggest it is not just or reasonable to give permission for another trial on the same facts (in relation to incidents 1-10 and 12)- either because the same result is likely, and so the exercise is wasteful; or because of the general public interest in avoiding re-litigation and in supporting the finality of judicial dispositions of particular controversies.
Conclusion on extension of time
The test for extension of time is whether it is just and reasonable to do so. The Court is required to have regard to particular factors, but also the whole circumstances of the case, and to arrive at a conclusion by way of synthesis as to whether the plaintiff has shown that it is just and reasonable to extend time in respect of all, or any, of her causes of action. I do not consider that the plaintiff has discharged this onus in respect of any of the time barred causes of action.
In respect of the incidents that were the subject of detailed examination in the trial of Mr Slaveski’s proceeding (incidents 1-10 and 12), I consider the overwhelming factors are the prejudice that would be occasioned to the defendants by re-litigation of those same facts, the very substantial delay since the dates of those incidents and consequent impact on a fair trial, and the public interest in avoiding re-litigation of issues and in supporting the finality of judicial dispositions. When these factors are considered with the plaintiff’s inadequate explanation for her delay, I am not satisfied that it would be just and reasonable to extend time in respect of causes of action arising from them.
In respect of the later incidents, in particular incident 14 but also possibly incidents 11 and 13, the period from accrual of the plaintiff’s cause of action to commencement of proceeding does not much exceed the limitation period. These incidents were also not the subject of consideration in the Slaveski trial, and so those elements of prejudice and public interest do not apply. Additional delay did occur, however, before the plaintiff made her application and there would be further time before trial if the causes of action continued.
Further, in respect of incidents 11 and 13, similar claims were made by Mr Slaveski, in a writ which named the plaintiff as co-author, in 2009 shortly before the commencement of his trial. The plaintiff does not afford any explanation why she too could not have taken action at that time, or at any time before she did. In the absence of explanation, and given the overall delay, I do not consider that it would be just and reasonable to extend time in respect of those causes of action.
The causes of action that have given me most pause are those arising from incident 14 which occurred on 23 September 2008, concerning officers Bateman and Mason, because they were only two months out of time on commencement of the plaintiff’s proceeding, and have not previously (to my knowledge) been litigated. The defendants assert[121] that this claim against officer Bateman was also included in the 2009 Slaveski proceeding, S CI 2009 8351, but I have not been able to locate it in that statement of claim.
[121]Further submissions on behalf of the defendants dated 20 November 2012, at [34].
The defendants have shown,[122] however, that the plaintiff had this incident in mind no later than 17 August 2009, on which day she raised it before Kyrou J in her husband’s trial. As noted earlier, I accept that there is sufficient explanation for not commencing proceedings while her husband’s trial was underway, but no explanation has been afforded why a claim in respect of this incident could not have been brought after August 2010 but within time i.e. prior to 23 September 2011. Given this absence of explanation I do not consider that the plaintiff has shown that it would be just and reasonable to extend time in respect of this incident, notwithstanding that the delay and prejudice are less than in respect of earlier incidents.
[122]Ms Nguyen’s first affidavit at [107] and HN-48.
In reaching these conclusions, I have taken into account that the plaintiff is now and throughout her husband’s trial was not legally represented, although she was required to seek some legal advice in relation to her role as litigation guardian. Some latitude towards her ignorance of the applicable limitation periods is accordingly appropriate. I do not, however, consider that this latitude is sufficient to render it just and reasonable to extend time, when all the factors including the absence of satisfactory explanation for all the delay, the prejudice to the defendants, the prejudice to the conduct of a fair trial, and the public interest are taken into account.
For the reasons given above, I will dismiss the plaintiff’s summons filed 30 October 2012 and give judgment for the defendants in respect of paragraphs 27-90 inclusive of the plaintiff’s amended statement of claim (relating to incidents 1-14 inclusive). The defendants have been successful (with the one exception of incident 15) pursuant to paragraph 17 of their summons. Summary judgment on the basis that these claims are statute barred may also be comprehended within other paragraphs of the summons relating to incidents 1-14 inclusive, but it is not necessary to consider that further. The plaintiff has relied generally on the discretion to refuse summary judgment conferred by s 64 of the CPA, but I do not consider that that adds to the matters I should consider in my discretion, as the defendants have succeeded as a matter of law, not fact, and discretionary matters have been considered in the context of the plaintiff’s application for extension of time.
In the event that after re-pleading it appears that the proceeding in respect of incident 15 is also out of time, and the defendant seeks summary judgment on that or other basis, or the plaintiff seeks an extension of time to bring the proceeding, in the interests of clarity I consider it appropriate that the moving party issue a fresh summons to that effect.
Charter
I have considered possible reliance by the plaintiff on s 24 of the Charter in the context of her application for extension of time. For completeness, I now turn to the other sections of the Charter to which she referred. The plaintiff in her oral submissions has referred to ss 5, 8, 9, 10, 12, 13 and 17 of the Charter, in addition to s 24.[123]
[123]Transcript pages 83-86.
The first point to be made is that the plaintiff has not identified with any precision how it is that her reliance on these provisions is relevant to either the defendants’ application or her own. Part 3 of the Charter sets out the circumstances in which a party may seek to rely on a Charter right. Only Division 3 or 4 of that Part could conceivably be applicable to this case. Division 3 provides that statutory provisions must be interpreted in a way that is compatible with human rights, and sets out mechanisms to ensure this occurs, including the necessity on a party raising such an issue to give notice to the Attorney General and to the Victorian Equal Opportunity and Human Rights Commission. The plaintiff has not identified any statutory provision which she says must be interpreted having regard to the rights on which she relies.
Division 4 imposes obligations on public authorities. Section 38 provides that public authorities must not, subject to the exceptions there set out, act in a way that is incompatible with a human right. Section 39 allows a person who is otherwise entitled to seek a remedy against a public authority on the ground that the act or decision of the public authority was unlawful to also rely in seeking that relief on a ground of unlawfulness arising under the Charter. It expressly prevents the award of damages because of a breach of the Charter. In other words, breach of a right conferred by the Charter by a public authority may assist in grounding a claim against that public authority, but it does not of itself confer any right of action. Victoria Police are a public authority within the Charter, but a court is not, except when acting in an administrative capacity. This Court when acting judicially in the determination of an application is not a public authority under the Charter.
In broad terms, it appears that the plaintiff relies on the identified sections to resist summary determination of her claims, because those claims may involve breach of the nominated rights and so should be heard. In fairness to the plaintiff, I will consider her reliance on the Charter in this way, although with some hesitation as I am by no means certain that this is appropriate. In other words, I will consider the sections on which she relies as being possibly relevant to the exercise of my discretion in relation to both the defendants’ application and her own.
Section 5 provides that the rights specified in the Charter are in addition to rights otherwise conferred. It preserves any other cause of action that the plaintiff may otherwise have against the State in respect of Victoria Police but I do not consider it is otherwise relevant to the applications before me. Section 8 is the provision that precludes discrimination and provides that every person “has the right to recognition as a person before the law”. The plaintiff has stressed that she is a person separate from her husband, and this is has been a factor leading me to reject the defendants’ reliance on Anshun estoppel, without the necessity of any reference to the Charter. I do not consider that reference to s 8 of the Charter adds anything to consideration of the defendants’ application, or, indeed, to that of her own. Consideration of the plaintiff’s application for extension of time necessarily involves treating her as a person otherwise with the right to sue.
Section 9 provides that every person has the right to life, and section 10 proscribes torture, cruel, inhuman or degrading treatment, and medical or scientific experimentation or treatment without consent. In my view, these sections do not add to the determination of the applications before me. The plaintiff’s reliance on them appears to reflect her deep sense of grievance, and conviction that she has been badly treated, and I have taken this into account as a factor the Court must consider pursuant to s 27L in any event.
Sections 12, 13 and 17 relate respectively to freedom of movement, freedom from attack on reputation and privacy, and the protection of families and children. Again, the plaintiff’s reliance on them appears to reflect the causes of action that she wishes to pursue and her conviction that she and her family have been injured in the ways she claims. In other words, they relate, if at all, to the merits of her case. The defendants’ application is not based on the merits of her causes of action (save as to the question of law as to whether she can rely on a duty to investigate), and nor is the merits of her case a factor that the Court is required to consider in respect of her application for extension of time. Accordingly, I do not consider those sections add anything to the determination of the applications before me.
For these reasons, I do not consider that the plaintiff’s reliance on the Charter affects the conclusions I have otherwise reached.
Good defence on the merits- no duty to investigate: incidents 11, 12 and 15
In respect of claims arising from these incidents the defendants rely on a further basis for seeking summary dismissal (which is additional to the Anshun estoppel basis in respect of incident 12, and to both that and expiration of the limitation period in respect of all three incidents). They say that by virtue of the conclusions reached by Kyrou J in respect of incident 12, they have a good defence on the merits to these claims, or alternatively the claims do not disclose a cause of action. These contentions form the basis of paragraphs 2, 3,4, 10 and 11 of their summons.
Given my conclusions in relation to the expiration of the limitation periods and the failure of the plaintiff’s application to extend time, it is only strictly necessary to consider this contention in respect of the cause of action arising from incident 15. That cause of action in its current form has survived the limitation challenge, but the pleading will be struck out, and the cause of action may be subject to renewed challenge on that or other grounds once re-pleaded. For completeness, however, I will consider all the causes of action said to be subject to dismissal on this basis.
The claims arising from incidents 11 and 12 are of failure to investigate certain matters. Incident 12, which is a claim against officer Lowerson, was also made in Mr Slaveski’s trial and was the subject of detailed consideration by Kyrou J. The particulars of the alleged negligence are identical in each case, save that in Mr Slaveski’s proceeding he had an additional claim arising from the claimed inappropriate use of handcuffs, and in this proceeding the plaintiff makes an additional claim in particular (l) to paragraph 77 of her amended statement of claim, arising from an alleged promise that “the Defendants will not intimidate, stalk, and assault the Plaintiff and her family”.
His Honour found that a police officer may be liable for injury or damage occasioned by his or her negligence in supervising subordinate officers, at least in the performance of their operational duties.[124] He found, however, that all claims of negligence made by Mr Slaveski against officer Lowerson other than that relating to the alleged failure to investigate “claims of harassing and unwelcome telephone calls”[125] failed on the facts as he found them.[126] The facts are identical in this case. There remains the theoretical possibility that different evidence may be given, or different factual findings made about those facts in this proceeding, but there is no evidence before me to suggest that that possibility is anything other than so remote as to be fanciful. Accordingly, I consider that there is no real prospect of success on the facts in respect of any claim made by the plaintiff in this action in respect of incident 12, except that relating to telephone calls, and if necessary I would give summary judgment to the defendants accordingly.
[124]Principal judgment at [1992].
[125]Particular (l) to Mr Slaveski’s claim, and particular (k) to the plaintiff’s claim in paragraph 77 of her amended statement of claim.
[126]At [1993]-[1996].
If this was the sole ground for summary judgment in respect of incident 12, I would first consider whether, although there is otherwise a basis for summary judgment on the basis that the plaintiff has no real prospect of success under s 63 of the CPA, the discretion to refuse summary judgment conferred by s 64 should be exercised in the plaintiff’s favour. I do not consider that there is anything shown to justify the exercise of that discretion in respect of this incident, it having been exhaustively litigated in the Slaveski proceeding.
The defendants also submit, without elaboration, that particular (l) relating to the alleged promise does not disclose a cause of action and should be dismissed on that basis. I am not persuaded by that mere assertion that that is necessarily the case. If this was the sole basis for seeking summary judgment in respect of that particular, I would not give it. I would, however, require the plaintiff to give further and better particulars, at least of the date and content of the alleged promise, how it is said that it was not complied with, and how that constituted a breach of duty owed to her. This does not arise, as I will give summary judgment in respect of the whole of the claims arising from incident 12 on the basis of limitation expiry in any event.
In relation to the failure to investigate claims of harassing telephone calls, a claim made against officer Lowerson in respect of both Mr Slaveski’s proceeding and this, Kyrou J found for Mr Slaveski on the facts. He found that officer Lowerson had received those complaints and had failed to investigate them without good reason.[127] Mr Slaveski’s claim ultimately failed, however, because Kyrou J found that as a matter of law, officer Lowerson did not owe a duty of care to Mr Slaveski to investigate his complaint about the threatening telephone calls.[128] The defendants say that the same conclusion must necessarily flow in relation to the identical claim brought by the plaintiff in this proceeding.
[127]At [2097]-[2098].
[128]At [2119].
Subject to the theoretical possibility of a different judge reaching a different conclusion on the application of the principles discussed by Kyrou J to the same facts, I accept that submission. The plaintiff has not directed me to any authority that would suggest His Honour was incorrect, and, if he was, then the avenue for correction was appeal, not re-litigation of the same issues of fact and law before a different judge. Affording the judgment of Kyrou J the respect due to a final and considered judgment that has not been overturned on appeal, I consider the possibility of a different conclusion as to the duty at trial of this proceeding to be remote. If it were necessary, I would give summary judgment on this basis - that the plaintiff has no real prospect of success in obtaining a different result. As set out above, I do not consider that exercise of the discretion conferred by s 64 of the CPA to refuse summary judgment would be justified.
The causes of action arising from incidents 11 and 15, which are brought against officers Cornelius, Gutske and Mason, were not part of Mr Slaveski’s trial. Nevertheless, the defendants say they should be dismissed because the same conclusion as to absence of duty to investigate must necessarily apply as a matter of law. For the reasons set out below, I do not consider that that is so certain at this stage of the proceeding that summary judgment should be given on that basis.
Incident 11 is pleaded at paragraph 75 of the plaintiff’s amended statement of claim. She alleges in that paragraph that officer Cornelius failed to investigate her complaints of attempted murder and failed to stop or prevent incoming calls identified as being those that contained death threats, and threats or bribes to leave the country. Officers Gutske and Mason are said by the particulars to have also failed to investigate the telephone calls. The parties agreed that complaint was made to officer Cornelius by the plaintiff and her husband in May 2008. The particulars also refer to a particular telephone call in July 2008.
Incident 15 is pleaded in paragraph 91 of the amended statement of claim, again against officers Cornelius, Gutske and Mason. I concluded earlier that I was unable to find when this incident occurred, and so when the limitation period expired. I indicated that I would strike out the paragraph and give leave for it to be re-pleaded. That must be with particularity. Not only is it currently unclear on the pleading when the incident occurred, it is entirely unclear to what event or events the paragraph relates. No particulars are given at all to identify the facts relied upon. It is also unclear whether the cause of action is said to be conspiracy, or negligence or both. As a consequence, paragraph 91 is currently unintelligible.
In concluding that officer Lowerson was not under a duty to investigate Mr Slaveski’s complaints of harassing telephone calls, Kyrou J applied the principles he drew from Sullivan v Moody [129] and Tame v New South Wales [130] which he summarised in these words:
in general, police officers will not owe a duty of care to a particular complainant to investigate his or her complaint of actual or threatened criminal conduct because the imposition of such a duty would be inconsistent with the performance of their public duty to enforce the criminal law, which requires them to exercise discretion in prioritising the use of scarce investigative resources in the public interest…a duty of care will not be recognised unless there is something exceptional in the circumstances of a particular case that warrants such recognition.[131] (emphasis added)
[129](2001) 207 CLR 562
[130](2002) 211 CLR 317
[131]Principal judgment at [2103].
He then examined the circumstances of the claim against officer Lowerson to determine if there was any such special circumstances, concluding that there were not. In other words, his conclusion as to whether a duty to investigate could be found depended on the application of the general doctrine to the particular facts as he found them.
The application before me is for summary judgment. No oral evidence has as yet been given in this proceeding in respect of the claims made arising from incidents 11 and 15, and those facts were not the subject of detailed examination in Mr Slaveski’s trial, although there may have been some reference to them in the course of that trial. There have been no interlocutory steps such as discovery or interrogatories taken in this proceeding that might illuminate the facts surrounding these claims, and, at least in respect of incident 15, it is entirely unclear to what it relates at all. It follows that it cannot be said at this early stage of the proceeding, given the caution with which summary judgment is to be given, that there is no real prospect of the plaintiff successfully establishing a duty to investigate the complaints which form the factual substrate of these paragraphs. There is, at this stage of the proceeding, insufficient factual foundation to reach that conclusion.
As previously indicated, I will give summary judgment in respect of incident 11 in any event on limitation grounds. My conclusion in relation to summary judgment on the basis that there is no cause of action, or no real prospect of success, because there is no duty to investigate thus is determinative only in relation to incident 15. My decision that it is too early to reach such a conclusion is without prejudice to the defendants’ ability to renew an application for summary judgment on that ground in respect of incident 15 when re-pleaded, if so advised, or at a later stage of the proceeding.
Strike out on pleading grounds
If they fail in respect of the other challenges they make, the defendants have sought strike out of the paragraphs of the amended statement of claim relating to incidents 11, and 13-17.[132] I will consider in detail only those paragraphs of the amended statement of claim that have survived the defendants’ application for summary judgment, which concern incidents 15, 16 and 17. Strike out applications in respect of these paragraphs are made by paragraphs 12, 14 and 16 of the defendants’ summons.
[132]Transcript pages 54-59
Strike out on pleading grounds is to be assessed having regard to the pleading alone, not evidence or assertion explaining to what it is intended to relate. The defendants’ submission, that they are entitled to ascertain the nature of the claim against them from the plaintiff’s pleading alone, which is required to plead all material facts said to give rise to the cause of action, is plainly correct.
I have set out above my view in relation to incident 15, which is currently pleaded at paragraph 91 of the amended statement of claim. The paragraph simply does not plead any material facts. It is pure assertion. The absence of any detail and the conflation of negligence and conspiracy make it unintelligible.
The claims against officer Busic arising from incident 16 are pleaded at paragraphs 92-98 of the amended statement of claim. In contrast to incident 15, substantial detail is given. The defendants are also well apprised of the matters complained of because of the evidence given in Mr Slaveski’s contempt trial. As noted, this does not mean that a pleading that is otherwise deficient should necessarily be allowed to stand. Indeed, comparison between these particulars and the evidence given at the contempt trial may raise more questions than the particulars answer. In my discussion of the application of Anshun estoppel to this claim, I noted one apparent discrepancy between the particulars and the plaintiff’s evidence before Whelan J, and there may be others.
Due to the way argument proceeded before me, however, the defendants did not make detailed submissions in relation to strike out of the paragraphs relating to this incident. I do not consider that the pleading is so deficient on its face that it should be struck out, in comparison, for example with paragraph 91. The claim as currently pleaded accordingly survives the defendants’ application.
In respect of incident 17, the defendants seek strike out only. The paragraphs relating to incident 17, are numbered 99-108, but material facts relating to the incident, as opposed to assertions of injury, are pleaded only in paragraphs 99-101. The allegations as there pleaded do not disclose a cause of action. The facts of the arrest and confiscation are not sufficiently pleaded; the acts or omissions by officer Busic said to amount to conspiracy with officers of the New South Wales police are not pleaded at all; if the reference to the State is intended to mean that it was not just officer Busic, but other Victorian police officers as well, that is not made clear; the facts said to constitute an assault or battery are not pleaded; and nor is it pleaded how these allegations amount to conspiracy, assault or battery.
Accordingly, I will strike out paragraphs 91, and 99-108 inclusive of the amended statement of claim. In accordance with usual practice, and without objection from the defendants, I will give leave to the plaintiff to re-plead. If that re-pleading does not cure the defects, or gives rise to other grounds on which the allegations should be struck out or dismissed, the defendants are at liberty to make that application.
Conclusion
I will dismiss the plaintiff’s summons for extension of time and give summary judgment to the defendants in respect of the bulk of paragraph 17 of their summons on the basis that the claims made in respect of incidents 1-14 inclusive are time barred. If it were necessary, I would also give summary judgment to the defendants in respect of the claims arising from incident 12 on the merits.
Paragraphs 91, and 99-108 inclusive of the amended statement of claim (relating to incidents 15 and 17), are struck out with liberty to the plaintiff to re-plead. I will otherwise dismiss the defendants’ summons, but without prejudice to their right to make fresh application in respect of the claims currently made in the struck out paragraphs if re-pleaded.
Paragraphs 92-98 of the amended statement of claim, being the claims against officer Busic arising out of incident 16, survive the defendants’ application. I will hear the defendants if required as to whether leave would be required to renew a strike out application in respect of those claims and, if required, whether it should be given.
I will also hear the parties as to the precise form of orders to give effect to these reasons, and as to costs.
ANNEXURE “A”
TO JUDGMENT DELIVERED 1 NOVEMBER 2013
IN THE SUPREME COURT OF VICTORIA
AT MELBOURNE
COMMON LAW DIVISION
No. SCI 2011 06392
B E T W E E N:
SNEZANA ANGELESKA (known as SLAVESKA)
Plaintiff
- and -
STATE OF VICTORIA & ORS
(according to the attached schedule)
Defendants
TABLE OF INCIDENTS
Plaintiff= “P”; Mr Slaveski = “H”
Plaintiff’s proceeding filed 24 November 2011
| No | Date and nature of incident | P’s Amended Statement of Claim | Causes of action | Defendants | Limitation period/ expired? | Comparison to Slaveski (“H”) proceedings | Outcome of application |
| 1. | 8.9.00 Police attended H’s shop at Lalor to investigate H in relation to conduct towards Council. P and children also there. | [27]-[40] | Trespass to land Assault and battery (7) Negligence | 2nd, 3rd, 4th, 5th & 6th Bingham, Smithwick, Stephen, Barton and Rhodes | 6 years. Expired 7.9.06 | Same incident. Additional defts in H proceedings Trespass to land also alleged by H H claims dismissed. | Time barred. No extension of time. Summary judgment for the defendants. |
| 2. | 18.12.03 Sadler entered shop at Lalor to speak to H in relation to dishonoured cheque. | [41]-[44] Alleged unlawful entry and threat to H | Trespass to land Assault | 7th (6th removed by leave 16.10.12) Sadler | 3 years. Expired 17.12.06 | Same incident. Trespass alleged and words now said to constitute assault. H claims dismissed | Time barred. No extension of time. Summary judgment for the defendants. |
| 3. | 14.4.04 Jones and Peck enter shop at Lalor in relation to complaint about H by an employee | [45]-[46] Alleged unlawful entry | Trespass to land Possibly assault | 8th & 9th Jones and Peck | 3 years. Expired 13.04.07 | Same incident. Same defts. Same pleaded causes of action. H claims dismissed | Time barred. No extension of time. Summary judgment for the defendants. |
| 4. | 22.6.05 H and P attend Mill Park police stn to serve writ. Cole alleged to say abusive words. Nolan alleged to defame H. | [47]-[52] H [31]-[33] | Assault Defamation | 10th & 11th Nolan and Cole | 3 years. Expired 21.6.08 | Same incident. H claim defamation by Nolan only i.e. additional deft Cole in P claim. Claim dismissed. | Time barred. No extension of time. Summary judgment for the defendants. |
| 5. | 13.12.05 Police attended Lalor shop to arrest H re alleged robbery and assault | [53]-[62] H [34]-[45] | False imprisonment Assault Trespass to land Trespass to goods | 7th, 11th, 12th, 13th, 14th, 15th & 16th Sadler, Cole, Kirkright, Knowles, Baade, Wendt, Anderson (amended by leave 16.10.12) | 3 years. Expired 12.12.08 | Same incident. P causes of action limited to her e.g. not wrongful arrest; not that goods stolen. Same claims re search warrant. Additional D in H claim H partially successful- re execution of search warrant (trespass to land and goods) | Time barred. No extension of time. Summary judgment for the defendants. |
| 6. | 13.01.06 | [63]-[64] H [46]-[47] | Stalking Assault | 17th Tynneson | 3 years. Expired 12.01.09 | Same facts. Same deft. Identical pleading. H also includes special damage. Claims dismissed. | Time barred. No extension of time. Summary judgment for the defendants. |
| 7. | 12.07.06 Parker in company of other officers made threatening gesture to H outside Lalor shop. P observed. | [65]-[66] H [49] –[50] | Stalking Assault | 18th Parker | 3 years. Expired 11.07.09 | Same facts. Same deft. Identical pleading. Claims dismissed. | Time barred. No extension of time. Summary judgment for the defendants. |
| 8. | 20.07.06 Parker with others followed them at Epping Plaza and exposed gun. | [67]-[68] H [52]-[53] | Stalking Assault | 18th Parker | 3 years. Expired 19.07.09 | Same facts. Same deft. Identical pleading. Claims dismissed. | Time barred. No extension of time. Summary judgment for the defendants. |
| 9. | 14.08.06 Parker intimidated P and H at Epping Plaza. | [69]-[71] H [54]-[56]. | Stalking Assault | 18th Parker | 3 years. Expired 13.08.09 | Same facts. Same deft. Identical pleading. Claim dismissed. | Time barred. No extension of time. Summary judgment for the defendants. |
| 10. | 7.05.07 Peck alleged to have made threat in course of telephone discussion about murder of H’s tenant. Both H and P on line. | [72]-[74] H [63]-[65] | Assault | 9th Peck | 3 years. Expired 6.05.10 | Same facts. Same deft. Identical pleading. Claim dismissed. | Time barred. No extension of time. Summary judgment for the defendants. |
| 11. | No date. Parties agree early May 2008. Complaint was made to officer Cornelius on 1 May 2008. H requested Gutske to stop investigation in early May 2008. | [75] Failure to investigate telephone calls, attempted murder. | Negligence? | 1st, 22nd, 23rd & 24th’Cornelius, Gutske and Mason | 3 years. Expired shortly after June against Cornelius. Expired May 2011 against Gutske and Mason. | Similar complaint made by H in proceedings S CI 2009 8351. P named as co-author of that writ. | Time barred. No extension of time. Summary judgment for the defendants. |
| 12. | P alleges supervisory failures, including failure to investigate threatening phone calls. No date but in H’s case Kyrou J found last date for investigation of threatening telephone calls was 20.11.06. | [76]-[78] H [66]-[67A] | Negligence | 1st &19th Lowerson | 3 years. Expired 19.11.09 | Identical particulars, save that H had an additional claim relating to use of handcuffs and P adds a claim that D made a promise that police will not intimidate. H and P gave evidence. All claims by H dismissed on the facts, except in relation to investigation of telephone calls. In relation to that claim, Kyrou J made factual findings in his favour, but held no duty to investigate. Claim dismissed. | Time barred. No extension of time. Summary judgment for the defendants. Would also give summary judgment on the basis of a good defence on the merits. |
| 13. | 5.09.07 | [79]-[84] | Stalking? Theft? Assault & battery? Trespass to goods? | 20th Bateman | 3 years. Expired 4.09.10 | More extensive claim arising from these facts made by H in proceedings S CI 2009 8351. P named as co-author of that writ. | Time barred. No extension of time. Summary judgment for the defendants. |
| 14. | 23.09.08 | [85]-[90] | Assault? Negligence? | 1st, 20th & 24th Bateman and Mason | 3 years Expired 22.09.11 | Time barred. No extension of time. Summary judgment for the defendants. | |
| 15. | No date. | [91] | Negligence? | 1st, 22nd, 23rd & 24th Cornelius, Gutske and Mason | Cannot say in the absence of a date. | Struck out only. Leave to re-plead | |
| 16. | 2/6/2010 | [92]-[98] | Assault? Misfeasance in public office? Negligence? | 1st & 21st Busic | Limitation period not expired. | H, P and Busic gave evidence about this incident in contempt proceedings before Whelan J. Evidence of H and P not accepted. | Survives |
| 17. | 1/7/2010 | [99]-[108] | Assault? Misfeasance in public office? Conspiracy? | 1st & 21st Busic | Limitation period not expired. | Struck out. Leave to re-plead |
3
13
0