Haque v The State of Victoria

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMON LAW DIVISION

MAJOR TORTS LIST

S ECI 2022 04780

Dr ZAHIDUL HAQUE	Appellant
v
STATE OF VICTORIA & ORS (according to the attached schedule)	Respondents

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JUDGE:	Harris J
WHERE HELD:	Melbourne
DATE OF HEARING:	22 August 2024
DATE OF JUDGMENT:	15 November 2024
CASE MAY BE CITED AS:	Haque v The State of Victoria
MEDIUM NEUTRAL CITATION:	[2024] VSC 703

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APPEALS — PRACTICE AND PROCEDURE — Summary judgment — Appeal against order of Associate Judge — Associate Judge ordered that summary judgment be entered and that the plaintiff pay the defendants’ costs — Whether grant of summary judgment ‘unjustified’ —Whether Associate Judge had authority to give summary judgment — Whether claims barred by Limitation of Actions Act 1958 (Vic) — Whether police tort claims are a ‘specialty’ within s 5(3) of the Limitation of Actions Act 1958 (Vic) — Whether Associate Judge should have granted an extension of time —Whether claims barred by res judicata and Anshun estoppel —Appeal dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	In person
For the First to Fourth Respondents	Mr D McCredden	Victorian Government Solicitor’s Office
For the Fifth to Sixth Respondents (unidentified persons)	No appearance

TABLE OF CONTENTS

Introduction........................................................................................................................................ 1

Dr Haque’s claims and the procedural background in this Court........................................... 2

The nature of the claims made by Dr Haque............................................................................ 2
Procedural history in this Court................................................................................................. 4

Appeals from an Associate Judge................................................................................................... 5

Grounds of appeal............................................................................................................................. 6

Were the Associate Judge’s findings, conclusions and orders ‘unjustified’?........................ 8

Dr Haque’s submissions............................................................................................................ 10
The Respondents’ submissions................................................................................................. 11
Consideration.............................................................................................................................. 11
Conclusion: the Associate Judge’s conclusions and orders were justified......................... 13

The Associate Judge had authority to determine the proceeding by giving summary judgment........................................................................................................................................................ 14

Dr Haque’s submissions............................................................................................................ 14
The Respondents’ submissions................................................................................................. 14
Consideration.............................................................................................................................. 15

Police tort claims are not a ‘specialty’ for the purposes of s 5(3) of the LAA....................... 19

Dr Haque’s submissions............................................................................................................ 20
A ‘specialty’ is a legal term referring to contracts or debts under seal............................... 20

The Court was not obliged to extend time to bring the personal injury claims.................. 21

Dr Haque’s submissions............................................................................................................ 21
Consideration.............................................................................................................................. 21
Further submissions as to extension of time made in this appeal....................................... 25

The Associate Judge was correct to conclude that an Anshun estoppel applied to any claims relating to the 2010 arrest.......................................................................................................... 29

The Associate Judge’s conclusions on res judicata and Anshun estoppel............................ 29
Dr Haque’s ground of appeal and submissions..................................................................... 30
Respondents’ submissions......................................................................................................... 31
Consideration.............................................................................................................................. 32

The costs orders made by the Associate Judge........................................................................... 35

Conclusion......................................................................................................................................... 36

HER HONOUR:

Introduction

In 2022, Dr Haque issued proceedings in tort against the State of Victoria, three named Victorian Police Officers, and two unidentified persons alleged to have acted on behalf of the police or the sheriff. The claims related to events on 12 February 2010 when he was arrested at his home and taken to Footscray police station (the 2010 arrest), and on 3 February 2012 when he was arrested at his home and taken to Sunshine police station (the 2012 arrest). He alleges that both arrests were unlawful, and that they constituted assault, battery and false imprisonment. He also brings claims for stalking based on the 2010 arrest and defamation based on the 2012 arrest.

The named respondents (together, the Respondents), applied for summary judgment or the strike out of Dr Haque’s claim. Associate Justice Ierodiaconou gave summary judgment in favour of the first to fourth respondents on 14 May 2024. Her Honour held that:[1]

(a) Dr Haque’s claims relating to his arrest on 12 February 2010 were barred by the doctrine of res judicata and Anshun estoppel, by reason of prior proceedings which related to the same events, which had been determined in the County Court[2] and subsequent appeals; and

(b) Dr Haque’s claims relating to the 2010 arrest and 2012 arrest were out of time and that any applications for extensions of time should be refused, as the applications would have no real prospect of success.

[1]Haque v State of Victoria, unreported, 14 May 2024, Ierodiaconou AsJ (Reasons).

[2]Haque v State of Victoria [2013] VCC 1035.

Her Honour dismissed the proceeding and ordered that Dr Haque pay the Respondents’ costs of the proceeding.[3]
[3]Order of Associate Justice Ierodiaconou made on 5 June 2024.

Dr Haque appeals from these orders. He represented himself at the hearing and supplemented his detailed written submissions with oral submissions.

For the reasons that follow, I have concluded that there was no error in the Associate Judge’s determination that summary judgment should be entered, that her Honour’s determinations were correct, and the appeal must be dismissed.

Dr Haque’s claims and the procedural background in this Court
The nature of the claims made by Dr Haque

Dr Haque filed his Writ and Statement of Claim in this Court on 22 November 2022 and effected service on the Respondents on 28 April 2023.

Dr Haque is highly qualified in engineering and technology and has studied and taught in universities overseas and in Australia.[4] From 2006 he was working as a taxi driver.[5] The two arrests which formed the basis of his claims relate to two sets of circumstances, for the most part arising from his work as a taxi driver.
[4]Haque v State of Victoria [2013] VCC 1035, [19] (Judge Smith); Haque v State of Victoria [2014] VCC 2035, [18]-[19].
[5]Haque v State of Victoria [2013] VCC 1035, [19]. Haque v State of Victoria [2014] VCC 2035, [21].

The first set of claims related to Dr Haque having been arrested on 12 February 2010 at his home. The arrest related to theft charges relating to mobile phones left in the back of his taxi (which charges were, some months after the arrest, withdrawn); and to charges relating to reckless or dangerous driving arising out of an incident in November 2009 at Victoria University.[6]
[6]Statement of Claim filed 22 November 2022, [3].

Dr Haque brought two proceedings in the County Court, the first alleging false imprisonment, battery, and defamation with respect to an arrest in August 2009; and the second against the State of Victoria, Constable Natalie Passalick, Constable Tsianakas and Constable Landy for malicious prosecution for the 2008 theft charges and for false imprisonment with respect to the 2010 arrest.[7] Judge Smith heard the matters together and, in a comprehensive judgment, dismissed the malicious prosecution claim on the basis that it was not established that the theft charges had been initiated and maintained with malice or without reasonable and probable cause.[8] His Honour dismissed the false imprisonment claim relating to the 2010 arrest on the basis that, contrary to Dr Haque’s claim that he was not informed of the reason for his arrest, the evidence established that he had been so informed and had not been held involuntarily to give a police interview on that day.[9] A notice of appeal against Judge Smith’s judgment was filed by Dr Haque 24 days out of time. An application for an extension of time was considered by Osborn and Beach JJA in the Court of Appeal. Their Honours adjourned Dr Haque’s application for an the extension of time and gave him an opportunity to file a notice of appeal which was to be intelligible, coherent, not prolix and not discursive.[10] After a further notice of appeal was filed the Court of Appeal granted an extension of time with respect to the first proceeding,[11] but refused leave with respect to the second proceeding dealing with the claims relating to the 2010 arrest.[12] Dr Haque applied for special leave to appeal to the High Court in respect of the Court of Appeal’s decision to refuse to extend time with respect to the claims based on the 2010 arrest. That application was refused by the High Court on 13 May 2014 on the basis that it had no prospects of success.[13]
[7]Haque v State of Victoria [2013] VCC 1035, [9]-[13].
[8]Haque v Victoria [2013] VCC 1035, [58]-[73].
[9]Haque v State of Victoria [2013] VCC 1035, [127]; [128]; [129]-[135].
[10]Haque v State of Victoria [2013] VSCA 316, [28]-[29] (Osborn and Beach JJA).
[11]The State of Victoria subsequently consented to orders for a retrial in respect of this proceeding: Affidavit of Jessica Johnson affirmed on 16 November 2023 (Johnson Affidavit), [30]. Judge Dyer of the County Court heard the proceeding and dismissed the claims by judgment dated 5 December 2014, also a very thorough and careful consideration of Dr Haque’s claims. Dr Haque appealed Judge Dyer’s order to the Court of Appeal, which dismissed the appeal on 4 May 2015. He applied to the High Court for special leave to appeal. That application was dismissed on 15 October 2015. Johnson Affidavit at [34]-[36].
[12]Haque v State of Victoria [2013] VSCA 332, [25].
[13]Haque v State of Victoria & Ors [2014] HCASL 86, [4]-[5].

The second set of claims the subject of the Writ and Statement of claim in this Court relate to his 2012 arrest by two unidentified persons acting on a Sheriff’s warrant. The warrant related to three outstanding traffic offences from 2007, which had resulted in fines said by Dr Haque to total around $660-700.[14] He claims that the arrest was unlawful because he was entitled under Victorian legislation to a warning notice prior to any arrest, and he had not received that notice.
[14]Statement of Claim [1].

Procedural history in this Court

Dr Haque served his Writ and Statement of Claim on the respondents on 28 April 2023 and the first to fourth defendants served a notice of appearance on 8 May 2023.

On 4 July 2023, Dr Haque filed an affidavit in support of entering judgment in default of defence, on the basis that no defence had been filed within 30 days of the appearance as required by r 14.04 of the Supreme Court (General Civil Procedure) Rules 2015. Default judgment was entered by the Prothonotary on the same day. The defendants applied to set aside the default judgment. Associate Justice Ierodiaconou, after considering and rejecting a submission by Dr Haque that she did not have power to hear the application, ordered that the default judgment be set aside, primarily on the basis that it had been entered irregularly for two reasons:[15]

(a) section 77 of the Victoria Police Act 2013 (Vic) extends the time for filing a defence to ‘police tort claims’ to 60 days, and the matters alleged were properly characterised as police tort claims; and

(b) although there were six defendants to the claim, the default judgment was entered ‘as against a single defendant’ without identifying which defendant was liable.

[15]Haque v State of Victoria [2024] VSC 57 (O’Meara J) (O’Meara J Judgment), [11], [17].

Her Honour also concluded that even if the default judgment had been entered regularly, she would have set it aside because the claims were statute barred and the principles of res judicata would apply to the false imprisonment claims, and there was good reason for the delay in filing a defence while Victoria Police made inquiries as to the identity of the fifth and sixth defendants.

Dr Haque appealed the decision of Ierodiaconou AsJ. The appeal was heard by O’Meara J who dismissed the appeal, having considered the issues and concluded that her Honour was plainly correct in concluding that she had power to hear the application.[16]
[16]O’Meara J Judgment, [63], [66].

On 7 July 2023, the solicitors for the Respondents wrote to Dr Haque identifying a number of problems with the Statement of Claim and putting him on notice of two defences to his claims: first, that each cause of action was statute barred; and secondly, that the claims based on the 2010 arrest were the subject of an issue estoppel or an Anshun estoppel because they raised new causes of action based on the same factual matters as had already been the subject of judicial determination. That letter referred to the fact that it was open to Dr Haque to make an application for the extension of the limitation period pursuant to s 27K of the Limitation of Actions Act 1958 (Vic) (LAA).[17] On 17 November 2023, the first to fourth Respondents applied for summary judgment in the proceeding.
[17]Johnson Affidavit, [10]-[11], Exhibit JDJ-1 pp 13-17.

Associate Justice Ierodiaconou gave summary judgment in favour of the first to fourth defendants, primarily on the basis that the doctrines of res judicata and Anshun estoppel, based on the County Court proceedings, precluded the claim with respect to the 2010 arrest.[18] Her Honour also held that the claims based on the 2010 arrest and the 2012 arrest were out of time and therefore statute barred.[19] Her Honour also found that the police officers and unidentified respondents were not proper parties to the proceeding.[20] Associate Justice Ierodiaconou was satisfied that the claims had no real prospect of success, within the meaning of s 63 of the Civil Procedure Act 2010 (Vic) (CPA), and that summary judgment should be given in favour of the defendants. After hearing from the parties, her Honour ordered that Dr Haque pay the first to fourth defendants’ costs of the proceeding.[21]
[18]Reasons, [22], [26].
[19]Reasons, [34]-[49].
[20]Reasons, [76], [81]-[86].
[21]Orders of 5 June 2024.

Appeals from an Associate Judge

An appeal from a decision of an Associate Judge is in the nature of a rehearing. For an appeal to be successful it is ordinarily necessary first to identify an error in the Associate Judge’s decision.[22] In appeals from orders relating to matters of practice and procedure, the appellate court will exercise particular caution in reviewing the decision.[23] Although orders for summary judgment might be regarded as a matter of practice and procedure, given the effect of such orders in bringing the proceeding to an end I have regarded it as appropriate to apply the usual standard of review unqualified by any more cautious approach.
[22]Oswal v Carson [2013] VSC 355, [11] (Ferguson J); Bendigo and Adelaide Bank v Grahame [2020] VSC 86, [17] (Sloss J); Ascot Vale Self-Storage Centre Pty Ltd (in liq) [2014] VSC 75, [16]-[17] (Robson J).
[23]Oswal v Carson, [11] citing Adam P Brown Male Fashions Pty Ltd v Phillip Morris Inc (1981) 148 CLR 170, 177 (Gibbs CJ, Aickin, Wilson and Brennan JJ); Bridge and Marine Engineering Pty Ltd v Sharvine Pty Ltd [2015] VSC 127, [47] (Elliott J).

Appeals are based on the evidence before the Associate Judge, and additional evidence on the appeal will only be admitted if it is relevant and is fresh evidence, in the sense that it was unavailable at the time of the original trial.[24]
[24]Ascot Vale Self-Storage, [16]-[17], citing McDonald v McDonald (1965) 113 CLR 529; ANZ Banking Group v Loftus [2014] VSC 342, [38]-[39] (Ginnane J), citing Clark v Stingel [2007] VSCA 292, [25] and Sunland Waterfront (BVI) Ltd v Prudentia Investments Pty Ltd [2013] VSCA 237, [523].

Grounds of appeal

Dr Haque’s Notice of Appeal was filed on 17 May 2024, and an Amended Notice of Appeal was filed by leave on 19 June 2024.[25] The Notice of Appeal was prepared by Dr Haque. It contained five grounds of appeal, which were largely discursive and occasionally difficult to understand, but included reference to certain contraventions of statutes or legal principles. As Dr Haque observed in his submissions, he was a university teacher, not a lawyer, and had explained his position as best he could.[26] The substance of his grounds of appeal was as follows:
[25]Leave was granted by the orders of JR Baker made 17 June 2024.
[26]Transcript, 22/08/24 T07.20-23.

(a) Ground 1 involved arguments to the effect that the dismissal of the proceeding by the Associate Judge was unjustified. Although no specific legal basis was identified for this assertion, it was observed that the Associate Judge had not found that the writ was bound to fail or had no real prospect of success, but that her Honour had observed that ‘I am satisfied that the second to fourth defendants are individuals alleged to have committed “police torts”’.[27] It appeared from submissions made at the hearing that Dr Haque may have understood this to have been a finding by her Honour that the torts were committed.[28]
[27]Amended Notice of Appeal [1.04].
[28]Transcript, 22/08/24 T114.02-29.

(b) Ground 2 raised three different legal issues:

(i) whether police tort claims were a ‘speciality’ for the purposes of s 5(3) of the LAA;

(ii) whether in a personal injury claim, the court may ‘extend the time automatically’ under s 23A of the LAA; and

(iii) whether an Associate Judge has the authority to determine a civil proceeding commenced by writ that relates to the liberty of the subject, having regard to r 77.02(3)(c) of the Supreme Court Rules. This was also raised by grounds 4 and 5, below.

(c) Ground 3 was that the Associate Judge erred in finding that there was a delay in commencing the proceeding insofar as it related to the 2010 arrest and the theft charges, without taking into account that there were reasons, relating to the timing of the resolution of appeals relating to the primary charges, why it was not appropriate for Dr Haque to include torts based on the 2010 arrest in the County Court proceedings. I understood this to be raised by Dr Haque in the context of the conclusions made by the Associate Judge in relation to an extension of time and relating to Anshun estoppel.

(d) Ground 4 raised the issue of whether there were legal limits in the CPA and (as raised in ground 2 above) the Supreme Court Rules on the ability of the Associate Judge to dispose of the proceeding summarily.

(e) Ground 5 alleged that the orders were made in bad faith, apparently on the basis that it is alleged that the Associate Judge did not have power to proceed to hear and determine the summary judgment application (for reasons overlapping with ground 2 and ground 4) but did so without Dr Haque’s consent.

The issues that Dr Haque raises can conveniently be addressed by reference to the following subjects:

(a) whether the findings the Associate Judge reached showed a justification for her conclusion that the proceeding should be summarily dismissed (ground 1);

(b) whether an Associate Judge has the authority to summarily determine a civil proceeding commenced by writ (grounds 2, 4 and 5);

(c) whether police tort claims are a ‘speciality’ for the purposes of s 5(3) of the LAA (ground 2);

(d) whether the Court should have extended the time for him to bring the proceedings under the LAA (grounds 2 and 3); and

(e) whether the Associate Judge erred in concluding that there was an Anshun estoppel with respect to the claims based on the 2010 arrest, in circumstances where the charges underlying that arrest were not fully resolved until October 2013 when an application for special leave to appeal to the High Court in relation to an appeal against conviction was refused and he could not have included all claims in his County Court proceeding which was commenced on 22 September 2011 (ground 3).

Were the Associate Judge’s findings, conclusions and orders ‘unjustified’?

The Associate Judge gave comprehensive reasons for her conclusions as to why the claims should be dismissed. Her Honour first summarised the claims, and then addressed each of the bases put forward for the defendants as to why the claims should be dismissed.

(a) First, her Honour considered the doctrine of res judicata, correctly observing that the doctrine comes into operation whenever a party in a second proceeding attempts to litigate a cause of action which has merged into judgment in a prior proceeding.[29] Her Honour then considered the County Court proceeding and what had been determined by Judge Smith’s judgment in that case. Her Honour concluded that Dr Haque was claiming relief in the matter before her for the same 2010 arrest that had been the subject of false imprisonment cause of action in the County Court proceedings, and that the doctrine of res judicata prevented Dr Haque from reagitating the false imprisonment claim.
[29]Reasons, [12], citing Port Of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589, 597.

(b) Her Honour also concluded that the principles of Anshun estoppel applied to the claims now made with respect to the 2010 arrest.[30] The claims were all based on Dr Haque’s central contention that the arrest was unlawful, and Dr Haque had given no explanation as to why any new claims relating to the 2010 arrest had not been made in the County Court proceedings.
[30]Reasons, [23], [26].

(c) Dr Haque’s claims were also out of time. Whether the claims for the 2010 arrest were regarded as being causes of action in tort, to which a six year limitation applied, or for personal injury, they were barred. Both the primary three year limitation and the long stop limitation period had expired by the time the writ was issued. The claim relating to the 2012 arrest would be barred by the tort and the short stop personal injury limitation, (being 3 years from the date the cause of action is discoverable). Her Honour concluded that the cause of action was ‘discoverable’ on or about the time of the 2012 incident, so that the long stop limitation period of 12 years did not apply.

(d) Dr Haque had not applied for an extension of time in which to commence the claims pursuant to s 27K of the LAA, but her Honour considered the potential for such an extension. She explained her conclusion that no extension would be granted as any such application would have no real prospect of success, having regard to the factors identified in s 27L(1) and primarily the length and likely effect of delay, and the difficulty of a fair trial in circumstances where two of the defendants are unnamed and there was limited prospect of identifying them.

(e) The claims based on the arrests were not actions on a ‘specialty’ for the purposes of s 5(3) of the LAA, and the fact that the claim was against police which is a ‘special body’ under the Public Administration Act 2004 (Vic) did not make it a speciality.

(f) The proceeding had, for these cumulative reasons, no real prospect of success within the meaning of s 63(1) of the CPA. The question was, therefore, whether it should be summarily dismissed, or whether it could nevertheless proceed to trial pursuant to s 64 of the CPA.

Dr Haque’s submissions

Dr Haque referred to several observations made by her Honour in her Reasons. He contended that these observations did not justify the conclusion that summary judgment should be given.[31] He submitted that her Honour ‘inferred’ or ‘assumed’ that claims were statute barred.[32] He appeared to take the view that the conclusions as to the application of statutory time limitations were an inadequate basis to justify the summary dismissal of the proceedings.[33] The focus of Dr Haque’s written submissions on this ground was on the conclusions made by the Associate Judge as to the applications of limitations periods. He appeared to contend that her Honour had reached the wrong conclusion that the LAA applied to bar the claims, and should have found that the claims were actions on a ‘speciality’ within the meaning of s 5(3) of the LAA, and not time barred, or that the cause of action was not discoverable within the meaning of s 27F of the LAA until some later date.[34]
[31]Amended Notice of Appeal [1.01-1.05]; Appellant’s Outline of Submissions filed 25 June 2024 [4(e)] and [4(f)].
[32]Appellant’s Outline of Submissions [4(b)] and [4(d)].
[33]Appellant’s Outline of Submissions, [4(a)-(e)].
[34]Appellant’s Outline of Submissions, [4(a)].

The Respondents’ submissions

The Respondents observed that it was not clear from the submissions and Amended Notice of Appeal what error or errors Dr Haque contended that the Associate Judge made, but observed that Dr Haque’s interpretations of various observations made by her Honour misapprehended the observations in the context of her Reasons.[35]
[35]Respondent’s Outline of Submissions filed on 26 July 2024, [12]; [14]-[16].

Consideration

Dr Haque’s arguments as to whether the claims were a ‘specialty’, in the context of his submission that the summary dismissal was ‘unjustified’, are considered below.

To the extent that Dr Haque is seeking to contend in the context of ground 1 that the Associate Judge erred in concluding at [45]-[48] of her Reasons that the cause of action based on the 2012 arrest was discoverable at about the time of the 2012 arrest, so that the three year limitation period in s 27D(1)(a) of the LAA applied, that submission cannot be accepted. Her Honour’s Reasons refer first to s 27D, pursuant to which the limitation period for personal injury actions is identified as either (a) three years from the date on which the cause of action is discoverable or (b) 12 years from the date of the act or omission alleged to have resulted in the personal injury, whichever is the first to expire. The Reasons then refer to s 27F(1) of the LAA which identifies when a cause of action is ‘discoverable’, being when a person knew or ought to have known (a) the fact that a personal injury has occurred, (b) the fact that the personal injury was the fault of the defendant, and (c) the fact that the personal injury was sufficiently serious to justify the bringing of a cause of action. Her Honour also referred to s 27F(2) and (3) as to when a person ‘ought to know’ of a fact, being ‘if it would have been ascertained had all reasonable steps been taken’.[36]
[36]Reasons, [46]-[47].

With these elements of the statute in mind her Honour observed that Dr Haque had by 2010 commenced two proceedings regarding his interactions with Victoria police, which actions continued through until the special leave application to the High Court relevant to the action in respect of the 2010 arrest was dismissed. In these circumstances the claims relating to the 2010 arrest were barred by both the short and the long stop periods.[37] She was satisfied that if Dr Haque had taken all reasonable steps following his 2012 arrest he ought to have known that he had a cause of action for personal injury against Victoria Police at or about that time. Her Honour concluded on that basis that the three year limitation period for the claim expired well over eight years ago.[38] That is an entirely rational conclusion, clearly expressed, that was open to her Honour. It was ample justification for concluding that the limitation period in s 27D(1)(a), being the period which expired before the 12 year long stop limitation period in s 27D(1)(b), was the limitation period which applied.
[37]Reasons, [37].
[38]Reasons, [48].

Dr Haque referred to various other aspects of her Honour’s Reasons, in support of his contention that her conclusion was ‘unjustified’. He submitted that the Associate Judge ‘did not conclude that, the plaintiff writ has no real prospect of success’.[39] This may have been in response to the section of her Honour’s judgment where she dealt with the question as to whether the claims had no prospect of success and if so whether they would be allowed to proceed. The heading to this section stated:

Does the plaintiff’s claim have no real prospect of success? If so, should he be allowed to proceed to trial per s 64 of the CPA?

[39]Appellant’s Outline of Submissions, [4](d).

Her Honour quoted the relevant sections of the CPA, and the principles relevant to s 63 and entry of summary judgment, as stated by the Court of Appeal in Lysaght Building Solutions Pty Ltd v Blanalko Pty Ltd.[40] Her Honour then observed:

Given the plaintiff has no real prospect of success, the question is whether there should be summary judgment in favour of the first to fourth defendants, or whether the proceeding should proceed to trial per s 64 of the CPA.

[40]Reasons at [72]-[73], citing Lysaght [2013] VSCA 158, [35].

When her Honour came to consider the application of ss 63 and 64 of the CPA, it was not necessary for her to discuss again why the claims had no real prospect of success, as she had already made findings earlier in her judgment about the various reasons why the claims could not succeed: that the false imprisonment claim based on the 2010 arrest claims was barred by res judicata,[41] all claims based on the 2010 arrest were barred by Anshun estoppel[42] and that all claims with respect to both arrests were statute barred[43]. It was unnecessary to repeat those conclusions. They constituted clear justification for the conclusion that the claims had no real prospect of success.
[41]Reasons, [22].
[42]Reasons, [24], [26].
[43]Reasons, [34]-[49].

Another finding focussed on by Dr Haque was her Honour’s observation that ‘I am satisfied that the second to fourth defendants are individuals alleged to have committed “police torts”’. He contends that notwithstanding this finding of the Associate Judge, her Honour ‘wrongly dismissed the appellant writ’.[44] It appears that Dr Haque may have misunderstood this finding as a conclusion that her Honour was satisfied that the claims of police torts had been established. The observation was made in the context of considering whether the claims alleged in the statement of claim were allegations of having committed police torts and so were ‘police tort claims’ within the meaning of s 73 of the Victoria Police Act. If they were, they were required by s 75 of that Act only to be made against the State, and not against individual police officers.[45] Her Honour’s conclusion was not that claims in the Statement of Claim were established or proven, but that the allegations could be characterised as police tort claims. The conclusion was in my respectful opinion correct.[46]
[44]See Amended Notice of Appeal, [1.04], and Appellant’s Outline of Submissions, 4(f), and Appellant’s Submissions in Reply filed 5 August 2024, [3] referring to Reasons, [85].
[45]Reasons [81]-[87]
[46]See also O’Meara J Judgment at [1].

The remaining observations in Dr Haque’s submissions about the reasons of the Associate Judge do not disclose any inadequacy in her Honour’s conclusions as to why the claims were either precluded by statute or otherwise had no real prospect of success.

Conclusion: the Associate Judge’s conclusions and orders were justified

The Associate Judge’s reasons disclose clearly why her Honour concluded that the claims had no real prospect of success, and should be summarily dismissed pursuant to s 63 of the CPA. Ground 1 cannot succeed.

The Associate Judge had authority to determine the proceeding by giving summary judgment
Dr Haque’s submissions

Dr Haque refers, in grounds 2, 4 and 5, to an argument that the Associate Judge did not have authority to hear the application for summary judgment on his proceedings, because it was beyond the authority conferred on an Associate Judge.

In his submissions in this appeal, Dr Haque focuses on two arguments:

(a) rule 77.02 of the Supreme Court Rules imposes restrictions on the matters which can be heard by Associate Judges.[47] Rule 77.02(1)(a) and (b) provides that the trial of a proceeding shall not be held before an Associate Judge, and it is submitted that the hearing of the application for summary judgment was a trial because it finally disposed of the matter;[48] and

(b) noting that pursuant to r 77.02(3)(c), an Associate Judge does not have authority to hear and determine proceedings relating to the liberty of the subject, her Honour did not have authority to determine the summary judgment application because the claims in his Statement of Claim of false imprisonment were claims relating to deprivation of liberty.[49]

[47]Dr Haque referred to authorities including Goodenough v State of Victoria [2016] VSC 733, [21]-[24].

[48]Amended Notice of Appeal, [4.03], [4.04].

[49]Appellant’s Outline of Submissions, [2.03(a)-(e)]; Appellant’s Submissions in Reply, [2.11].

The Respondents’ submissions

The Respondents submit that:

(a) the application for summary judgment was not a ‘trial’ of the proceeding, because it did not involve a determination, on evidence, of the appellant’s claims for final relief. It did not finally dispose of the rights of the parties. The Respondents referred in support of that last submission to Carr v Finance Corporation of Australia Ltd (No 1)[50] where Gibbs J observed that the test of whether a judgment is or is not final:
[50](1981) 147 CLR 246, 248 (Gibbs J), 256 (Mason J).

... is whether the judgment or order appealed from, as made, finally determines the rights of the parties.

(b) An Associate Judge has, in any event, power and authority to hear and determine an application under the CPA pursuant to r 77.01(2)(a)(iiia), and an application for summary judgment is an application under the CPA. An order for summary judgment is an interlocutory order, and not an order at trial: Waddington v Magistrates’ Court of Victoria and Kha.[51]

(c) The proceeding does not relate to the liberty of the subject for the purposes of r 77.02(3)(c) for the reasons given by O’Meara J in the appeal on the application to set aside default judgment.

[51][2013] VSC 101, [8]-[13], [54] (Lansdowne AsJ).

Consideration

Rule 77.01 and r 77.02 of the Supreme Court Rules provide in relevant part:

77.01 Authority
(1)Subject to this Order, an Associate Judge, in addition to exercising the powers and authorities conferred by any other provision of these Rules, may, in any proceeding to which these Rules apply, give any judgment or make any order, including any judgment or order in the exercise of the inherent jurisdiction of the Court.
(2)Subject to this Order, an Associate Judge, in addition to exercising the powers and authorities conferred by any other provision of these Rules, may hear and determine –
(a)any application and exercise any powers and authorities under the following statutory provisions —
…

(iiia)the Civil Procedure Act 2010; …

…
77.02 Limitations on Authority
(1)Subject to paragraph (2) and rules 12.12, 22.08(1)(d), 22.22(c), 32.08(3) and 77.01(2)(b), (c), (d), (e) and (f) –
(a)the trial of a proceeding shall not be held before an Associate Judge; and
(b)an Associate Judge shall not give any judgment or make any order at the trial of a proceeding.

(2)Except as provided by paragraph 3(a), (c), (d) or (e), an Associate Judge may at the trial of a proceeding give judgment or make an order by consent of all parties;
(3)An Associate Judge shall not have authority to hear and determine –
(a)any application which by these Rules or any Act is required to be heard only by a Judge of the Court or the Court of Appeal, as the case requires;
(b)…
(c)subject to paragraph (d), any proceeding relating to the liberty of the subject;
(d)any criminal proceeding, other than an appeal or an application for leave to appeal to which Order 3A of Chapter VI applies;
…

It is appropriate to observe at this point, before turning to the arguments made by Dr Haque and having regard to r 77.02(3)(a), that there is no rule that provides that only a Judge of the Court or the Court of Appeal may hear an application for summary judgment.

With respect to the arguments made by Dr Haque, they both have a significant degree of overlap with the matters considered by Ierodiaconou AsJ when ruling on the application to set aside default judgment,[52] and by O’Meara J in his judgment on Dr Haque’s appeal from that ruling. Although the application the subject of those decisions was an application to set aside judgment in default of defence, and the application in this case was an application for summary judgment, the observations made by O’Meara J as to the effect of the relevant rules are relevant to the matters now raised by Dr Haque.
[52]Ruling of 23 August 2023. See O’Meara J Judgment at [11].

Taking Dr Haque’s first argument, that the summary judgment application was a ‘trial’ and was, having regard to r 77.02.(1)(a), outside of the power of an Associate Judge to hear it, the judgment of O’Meara J does not determine this issue as applicable to the present case. Justice O’Meara concluded, noting Carr (No 1), that the application relevant to the appeal before him, the application to set aside default judgment, was not a trial on evidence of Dr Haque’s claims for final relief, and the orders made by her Honour did not finally dispose of the rights of the parties.[53] That does not determine the question of whether the hearing and determination of a different kind of application, a summary judgment application, constitutes a ‘trial’.
[53]O’Meara J Judgment, [53]; fn 19.

There is, however, authority confirming the power of Associate Judges to hear summary judgment applications.[54] I have noted the Respondents’ submission that the summary judgment ‘did not finally dispose of the rights of the parties’, citing the decision in Carr (No 1). As that decision related to the effect of an application to set aside default judgment, it does not resolve the status of an application for summary judgment. Further, I have reservations about accepting the submission that the grant of summary judgment does not finally dispose of the rights of the parties, because in fact a summary judgment will bring a proceeding to an end and is not (unlike entry of default judgment) the subject of any process to set it aside. Summary judgment can only be set aside by an appeal.
[54]Hou v Westpac Banking Corporation [2015] VSCA 57, [77]. See also, for example, Hind v Ronsel Investments Pty Ltd [2024] VSCA 53, [75] in which the Court of Appeal refused leave to appeal from a judge’s determination that an Associate Judge had been correct in giving summary judgment. No issue was raised in that case as to the power of the Associate Judge to determine a summary judgment application so the issue was not the subject of specific consideration.

An Associate Judge has the power to determine a summary judgment application because it is an application under the CPA, for the purposes of r 77.01(2)(a)(iiia). Although that power is, pursuant to the opening words of r 77.01(2)(a), ‘subject to this Order’, that power is not then the subject of any limitation on the powers of the Associate Judge in s 77.02(1). In particular, it does not involve an order made in the ‘trial of a proceeding’ for the purposes of r 77.02(1)(a). I respectfully adopt the explanation of Lansdowne AsJ on this issue in Waddington,[55] where her Honour observed that r 77.01(2)(iiia) confers power on an Associate Judge to hear any application under the CPA, which includes an application under s 63 of the CPA; and that:[56]

The conferral of power by r 77.01 is subject to the exceptions contained within r 77.02, but the power to grant summary judgment is not within any such exception. In particular, such an order is an interlocutory order,[fn: Karam v Palmone Shoes Pty Ltd [2012] VSCA 97, [19]-[22], which itself arose from the summary dismissal of an application under O56 by an Associate Judge] not an order at trial, notwithstanding that it brings the proceeding to an end, and so does not fall within that exception [fn: R 77.02(1)(a)] to the powers of an Associate Judge.

[55]This reasoning was confirmed by the Court of Appeal in Hou v Westpac Banking Corporation [2015] VSCA 57, [77].

[56][2013] VSC 101, [12] (Lansdowne AsJ).

Turning to the second argument, that the nature of Dr Haque’s claims had the consequence that this was a ‘proceeding relating to the liberty of the subject’, this argument was squarely dealt with by O’Meara J, and cannot succeed for the reasons his Honour gives. Justice O’Meara referred specifically to this submission as made before the Associate Judge, and her Honour’s observation that the application to set aside default judgment was not capable of determining or affecting the liberty of Dr Haque. His Honour concluded:[57]

That observation was plainly correct, and the approach evident within it is in keeping with the settled construction of similar provisions. In that regard, whilst an underlying proceeding may involve allegations of past wrongful detention, it does not follow that any such proceeding (including, in the present instance, the set aside application) is properly to be regarded as concerning or relating to the liberty of the appellant within the meaning of such a provision.

[57]O’Meara J Judgment, [56].

His Honour referred to Marriner v Smorgon[58] and Lovejoy v Carp.[59] In those authorities, reference to proceedings concerning ‘the liberty of the subject’ in the context of whether leave to appeal was required, was interpreted as engaging a situation where the outcome of the proceeding would involve a party’s liberty. As was accepted in Lovejoy v Carp, the fact that a claim is made in the proceeding relating to a past deprivation of liberty does not make the proceeding one concerning the liberty of the subject.[60] I consider that this remains the case with the potentially broader language of r 77.02(2), ‘proceeding relating to the liberty of the subject’. Although the words ‘relating to’ are words of connection of wide breadth,[61] the intention of the phrase is to be understood, as observed by O’Meara J, against the background of a settled understanding of the phrase as directed to the need to ensure unfettered access to the courts in cases where the liberty of a person may be affected by the outcome of the case itself.
[58][1989] VR 485, 503-505, with respect to the phrase ‘when the liberty of the subject or the custody of minors is concerned’ in s 14(4)(b) of the Supreme Court Act 1986 (Vic).
[59][1999] VSCA 167, relating to the phrase ‘concerning the liberty of the subject’ in s 17A(4)(b)(i) of the Supreme Court Act 1986.
[60]Chernov JA, with whom Ormiston JA agreed, observed in Lovejoy v Carp [1999] VSCA 167, [15]: ‘No claim is made in the proceeding on the basis that the appellant's liberty was being affected by the wrongful conduct of the respondents or some of them. Moreover, the outcome of this appeal will in no way affect his liberty. The claim made in the proceeding is that some of the respondents have wrongfully detained or incarcerated the appellant in the past. The relief sought by the appellant in his statement of claim is based on the alleged past deprivation of his liberty through allegedly wrongful incarceration, detention and imprisonment by some of the respondents.’
[61]State of Victoria v Commonwealth of Australia (1971) 122 CLR 353, 399 (Windeyer J); Stateside Credit Corporation Pty Ltd v Hudson [1989] VR 519, 523 (Kaye, Marks and Teague JJ).

For this reason, the summary judgment application was not a case relating to the liberty of the subject. Dr Haque’s submission that the Associate Judge did not have power to determine the summary judgment application must be rejected.

Police tort claims are not a ‘specialty’ for the purposes of s 5(3) of the LAA

Section 5(3) of the LAA states as follows:

An action upon a bond or other specialty shall not be brought after the expiration of fifteen years from the date on which the cause of action accrued:
Provided that this subsection shall not affect any action for which a shorter period of limitation is prescribed by any other provision of this Act.

Associate Justice Ierodiaconou rejected a submission that s 5(3) applied, stating that ‘specialty’, as referred to in s 5(3) of the LAA, was not defined, but that leading academic authority[62] and the Victorian Supreme Court judgment Martin v Diamantikos[63] was to the effect that a ‘specialty’ is any contract under seal, and usually refers to a debt obligation that is treated as different from an ordinary debt. Her Honour concluded that it was unnecessary to further consider the historic usage of the term and that she was satisfied that the word ‘specialty’ is not intended to include special bodies within the Public Administration Act. [64]
[62]Peter Handford, Limitation of Actions (Lawbook Co, 3^rd edition, 2012) 103 [5.10.710].
[63][1964] VR 593, 598.
[64]Reasons [66]-[67].

Dr Haque’s submissions

Dr Haque contended on appeal that the torts he alleged in his Statement of Claim were ‘special torts’ and that the limitation period applicable to actions on a specialty in s 5(3) of the LAA, being 15 years, applied, rather than the limitation period of six years for torts under s 5(1), or the limitation period under s 27D for personal injury actions. Dr Haque submitted:[65]

Subject to s 6(1) of the Public Administration Act 2004 and subsection 6(1)(k) of the Victoria Police Act 2013; the Victoria Police is a ‘special body’. Specialty relate to special torts and distinctly different from [other] torts under s 5(1)(a) of the LAA. The specialty is a kind of tort under s 5(3) of the LAA and its expiry was 15 years.
The Court of Appeal (Vic) establishes that, special torts are; false imprisonment, assault, battery, trespass to a person or goods etc. are actionable without proof of any damages. An action under s 5(3) of the LA Act are distinctly different from s 27D of the LLA [sic]. Section 5(3) only applied for single tort that constitutes multiple damages. An action for such torts, the limitation period was 15 years on which the cause of action accrued.

[65]Appellant’s Outline of Submissions filed 25 June 2024, [2.01(b)-(c)] (emphasis in original).

Dr Haque did not refer in this last paragraph to particular Court of Appeal authority which he contended established the existence of ‘special torts’, however his submissions had earlier referred to two decisions in Angeleska (known as Slaveska) v State of Victoria.[66] Neither authority referred to ‘special torts’. This may simply be Dr Haque’s own characterisation on the basis of his view that ‘the police torts were very rare and uncommon’.[67]
[66][2015] VSCA 213, [10]; (2015) 49 VR 131, [75], [76], [85] and [115].
[67]Amended Notice of Appeal, [3.08(b)].

A ‘specialty’ is a legal term referring to contracts or debts under seal

The Associate Judge was correct in concluding that the term ‘specialty’ in s 5(3) of the LAA refers generally to a contract under seal, with a specialty debt being a debt due under seal.[68] It may also extend to debts due under a statute. In addition to the authority referred to by her Honour, this is established in the context of statutes of limitations by State Government Insurance Commission v Teal[69] and Carabelas v Scott,[70] and is reinforced in the case of s 5(3) by the composite phrase ‘action upon a bond or other specialty’.
[68]Martin v Diamantikos [1964] VR 593, 598-599.
[69](1990) 2 WAR 105, 114, cited with approval in Blakeley v BMP Pty Ltd and Ors (1998) 29 ACSR 469, 471.
[70][2003] SASC 389, [77] (Doyle CJ, with whom Prior and Vanstone JJ agreed).

The term ‘specialty’ is, therefore, a legal term with specific, established meaning. Dr Haque appears to have understood the word as engaging matters of a ‘special’ kind. That more ordinary usage is not the way that term is used in s 5(3). Further, there is no basis for his submission that there are ‘special’ torts, nor that any tort is intended to be caught by the reference to ‘specialty’ in s 5(3). There is also no relationship between the concept of a ‘special body’ under the Public Administration Act and the concept of an action on a specialty for the purposes of the LAA.

The claims made by Dr Haque in the proceeding are not actions on a specialty. This aspect of Dr Haque’s appeal cannot succeed.

The Court was not obliged to extend time to bring the personal injury claims

Ground of appeal 2 refers to the following question of law:

Subject to s 23A(2) & (4) of the LAA; an application for limitation of actions for any personal injury claim, whether the court can extend the time automatically.

Dr Haque’s submissions

Dr Haque’s submissions do not clearly identify any error in the Associate Judge’s approach to the question of an extension. He referred in his written submissions to the statutory powers to extend time, on application by the person with a cause of action in s 23A(2) of the LAA and s 20(2) of the Wrongs Act 1958 (Vic),[71] but did not identify how those two sections were said to apply.
[71]Appellant’s Outline of Submissions, [2.02(a)-(b)].

Consideration

The Associate Judge considered both sections and concluded that they were not applicable to Dr Haque’s claims. Her Honour noted that s 20(2) of the Wrongs Act permitted a court to extend time to bring an action under s 20(3A) of that Act. Those sections are contained in Part III of the Wrongs Act, dealing with ‘Wrongful Act or Neglect Causing Death’. Section 20(2) itself refers to the death of a person caused by the wrongful act, neglect or default. As the claims did not allege any act causing death, s 20(2) was inapplicable.[72] Her Honour’s conclusion on this issue was, with respect, plainly correct for the reasons that she gave.
[72]Reasons, [69]-[71].

The Associate Judge noted that s 23A of the LAA applies to ‘any action for damages for negligence nuisance or breach of duty (whether the duty exists by virtue of a contract or of a provision made by or under a statute or independently of any contract or any such provision) where the damages claimed consist of or include damages in respect of personal injuries to any person’. Her Honour emphasised the reference to ‘negligence nuisance or breach of duty’ and concluded that this section was inapplicable to Dr Haque’s claims, as his action was based on deprivation of liberty.

There was no error in her Honour concluding that the claims were not actions for damages for personal injury based on claims of negligence, nuisance or breach of duty, within the scope of s 23A. It is true that the claims were more broadly characterised by Dr Haque in his Statement of Claim than being based on deprivation of liberty, in that he described his actions as being based on the torts of unlawful arrest, false imprisonment, battery, assault, stalking, trespass to the person and defamation.[73] None of these claims were claims for ‘negligence, nuisance or breach of duty’. Further, it was not apparent that he was seeking damages for personal injury; although his Statement of Claim referred to ‘mental trauma’ and the need for ‘mental treatment’, he expressly stated that:[74]

The plaintiff has got all the medical evidences in his custody. The plaintiff alleges that defendant-1 is vicariously liable for their action. Nevertheless, the plaintiff is not claiming any compensation for medical & work compensation in this civil proceeding.

[73]Statement of Claim, [1], [2], [3(ii)(hh)], [4] [5] and under the heading ‘Remedy Sought’.

[74]Statement of Claim, [8] (emphasis added).

He then identified the ‘remedy sought’ as follows, in a way which did not identify whether any damages related to personal injury:

A.A total amount of $270,000 for false imprisonments, battery, assault, defamation, aggravated damages & exemplary damages etc.; and
B.The applicant is also claiming refund of one double payment of $220 with the interest rate of 10% (government gazette) for the last 10 (2012-2022) years and that comes around $420 ($220 +$200 (interest)); and
C.A lump-sum Costs of $30,000; by the discretions of the honourable court.

In these circumstances, it was open for the Associate Judge to conclude that s 23A had no application to his claims.

Dr Haque acknowledged in submissions on appeal that he ‘did not claim any specific personal injury compensation in his present writ’.[75] This reinforces that the Associate Judge’s conclusion that s 23A was not relevant was correct.
[75]Appellant’s Outline of Submissions, [3(k)]. I asked Dr Haque about this during the appeal hearing and he confirmed that he did not make any claims for personal injury, and observed that claims in false imprisonment, assault, trespass to the person do not require proof of injury: Transcript 22/08/24 T73.16-22, T76.18-31.

Dr Haque may have also intended to contend, in his reference to a question of law as to whether the court can extend time automatically, that he should have been given the opportunity to make an application for an extension of time.[76] This submission could not succeed, first because Dr Haque had been put on notice by the Respondents of the potential to make an application for an extension of time on 7 July 2023, and he did not make any application.[77] Dr Haque submitted that when he received that letter, default judgment had been entered, on 4 July 2023, so why would he apply for an extension of time?[78] However, even after the default judgment was set aside by Ierodiaconou AsJ on 23 August 2023, Dr Haque did not apply for time to be extended. Nor did he make that application after 26 February 2024, when O’Meara J dismissed his appeal against Ierodiaconou AsJ’s ruling. Dr Haque had ample time to make an application to extend time before the hearing of the summary judgment application on 19 March 2024.
[76]See transcript 22/08/24 T104.31-T105.19.
[77]See [15] above.
[78]Transcript 22/08/24 T 106.25-30.

Secondly, and importantly, the Associate Judge did carefully consider the prospects for an extension of time, even though no application had been made. The Associate Judge first considered the question of the time limits on bringing the actions. Having concluded that the claims were statute barred, her Honour then proceeded to consider whether any application for an extension of time would succeed.[79] Her Honour did this although there was no application by Dr Haque for an extension of time, and she was not called on directly to consider the potential for an extension of time. Her Honour appears to have considered the potential for any successful application for an extension of time in order to satisfy herself beyond any doubt as to whether there was no real prospect of success of the claims even if an application for an extension of time was made.[80] As is apparent from the following, the thoroughness of her Honour’s consideration of the prospects of any application for an extension of time makes it clear that an application would not have succeeded, had it been made. Even had some further opportunity been given to make an extension of time application, it could have made no difference to the outcome of the summary judgment application.
[79]Reasons, [50]-[62].
[80]Reasons, [51], [56], [62].

The Associate Judge noted that s 27K of the LAA permits the Court to hear an application for an extension of the limitation period for personal injury actions if it determines an extension to be ‘just and reasonable’. Her Honour identified the relevant factors which a court is required, pursuant to s 27L(1), to consider when determining an application for an extension of time, and considered those matters in the context of the proceeding. Her Honour also referred to the summary of the principles as to extension of time given by Incerti J in Azzam v Commonwealth.[81]
[81][2019] VSC 484, [62]-[71].

Her Honour noted the significant delay before filing the writ, of 12 years and nine months from the 2010 arrest, and 10 years and nine months since the 2012 arrest. Her Honour accepted that no specific prejudice was alleged but that there was general prejudice. She noted that it was apparent from Dr Haque’s previous proceedings that he was aware of the relevant acts and that there was nothing that would have affected the discoverability of his cause of action. There was no explanation as to why this specific action was brought so late. Her Honour stated that although there was a real question as to whether a fair trial could be held, in particular noting that the fifth and sixth defendants had not been identified, she did not conclude that there could not be a fair trial. Taking all of the relevant factors into account, her Honour concluded that there was no real prospect that Dr Haque would obtain an extension of time.[82] The fact that her Honour considered whether there was any prospect that Dr Haque would be granted an extension of time enabled her to be certain in her conclusion that the claims Dr Haque sought to make were statute barred, which was one of the reasons why the claims had no real prospect of success.
[82]Reasons, [62].

There was, therefore, no error in the way her Honour approached the question of any potential extension of time.

Further submissions as to extension of time made in this appeal

In the appeal before me, Dr Haque gave several reasons why he had delayed in bringing the proceeding.[83] It was not clear that these had all been raised, or clearly raised, before the Associate Judge. Although he also had not raised all of these matters in his written submissions as supporting a ground of appeal, or had not raised them in any readily apparent way, counsel for the Respondents did address them and I consider them here. As with the learned Associate Judge I consider them here in order to be satisfied, on this appeal, that there were no real prospects of any extension of time for the purposes of determining whether Dr Haque’s claims had no real prospect of success.
[83]Transcript 22/08/24 T02.25-T03-01, T45.17-24.

First, Dr Haque referred to his ‘incapacity’. This was first described as ‘incapacity or COVID or due to some other matter which I have mentioned in my affidavit in 24 June 2024’. Dr Haque later submitted that he was ‘incapable. I was suffering from mental injury’.[84] Dr Haque’s affidavit affirmed 24 June 2024 for the purposes of this appeal stated:[85]

As a result of repeated unlawful & unjustified arrests on 9/8/2009, 12/2/2010 & 3/2/2012 and for the wrong conviction on 30/8/2012, the appellant had been suffering from serious mental trauma and lost his work capacity. The appellant was in medical treatments and rehabilitation program for a quite long time; since from 2009 to 2020.

[84]Transcript 22/08/2024 T45.15-24.

[85]Affidavit of Zahidul Haque affirmed 24 June 20024 (Haque Appeal Affidavit), [5].

The Respondents submitted that the evidence relating to Dr Haque’s health was inadequate to establish that there was any legal incapacity, in that there was no medical evidence to the effect that Dr Haque was unable to attend to a matter such as a legal proceeding.[86] Counsel for the Respondents noted,[87] in particular, a medical certificate dated 27 July 2016 in Dr Haque’s evidence in which a consultant psychiatrist stated:[88]

Dr Haque has been suffering from schizophrenia and depressive illness. He still needs ongoing treatment, counselling and observation. His condition is now quite stable.

[86]Transcript 22/08/24 T84.25-T85.05.

[87]Transcript 22/08/24 T85.06-27.

[88]Affidavit of Dr Zahidul Haque, 24 November 2023, Exhibit bundle.

It was submitted that from at least the date of this certificate, the evidence was to the effect that there was no incapacity that would have prevented Dr Haque from issuing a proceeding.

It is apparent that Dr Haque was suffering from mental trauma in the period following the arrests. As noted by Dr Haque, this was acknowledged by Judge Dyer in his judgment.[89] However, there was no evidence as to whether, and if so how, Dr Haque’s medical treatment and rehabilitation had caused a delay in him bringing the proceedings. Nor was there evidence as to why it had been possible during that period to bring the County Court proceedings in 2010 and pursue them until the judgment in 2013, with further applications arising from the County Court decision to the Court of Appeal and the High Court. It is not possible to accept this as a reason for Dr Haque’s delay.
[89]Haque Appeal Affidavit at [6(a)], referring to Haque v State of Victoria [2014] VCC 2035, [82].

Secondly, Dr Haque said he could not bring this proceeding until the resolution of the application for special leave to appeal to the High Court from the Court of Appeal decision dismissing his application for leave to appeal relating to the charges for reckless conduct. This was because he considered that if his conviction was set aside or dismissed, he could bring another cause of action, for example in malicious prosecution.[90] His conviction was finalised when the High Court dismissed an application for leave to appeal on 9 October 2013.[91] This cannot be accepted as a reason for Dr Haque’s extensive delay. Even if it had been necessary for Dr Haque to wait until the outcome of his appeals against conviction, which is doubtful,[92] there remained a very lengthy time after the resolution of that matter in October 2013 and the filing of the Writ and Statement of Claim in this case in November 2022.
[90]Transcript 22/08/24, T111.20-30.
[91]Haque v The Queen [2013] HCASL 156.
[92]The outcome on appeal would not necessarily alter the position as to whether the elements of malicious prosecution could be made out. It was also unclear from the evidence whether this conviction related to the events the subject of the claims in the present proceeding.

Thirdly, Dr Haque referred to having been absent from Australia and unable to return for 15 months during the COVID-19 pandemic, between February 2020 and May 2021. This was not an issue raised by him in his affidavit filed before the Associate Judge. I do not accept that it is fresh evidence of the kind that should be admitted on appeal, as there is no explanation as to why it was not raised before the Associate Judge. It is also not evidence which is materially relevant in that the evidence goes no further than saying that Dr Haque was overseas first for surgery and then unable to return, due to COVID-19 measures, until May 2021. He asserts that ‘most of our Judicial departments were virtually closed until December 2022’ and that he first filed the writ via Redcrest on 2 November 2022. He asserts that matters were not being heard face to face and he was not experienced in video conferences and had no facilities for them in his home. None of these matters could provide any relevant explanation as to why he did not at least file the claim earlier through the Registry which was accepting electronic filings throughout 2020 and 2021.[93]
[93]See, for example, Supreme Court of Victoria Notice to the Profession Practice Court (Common Law) – COVID 19, 16 April 2020.

Fourthly, Dr Haque referred in his affidavit on appeal to ‘outstanding costs orders’ as a result of the County Court proceedings. He referred to the State of Victoria having advised him of the total amount of costs on 1 December 2015 and stated:[94]

The appellant was worried about the outstanding costs order. Those cost order expiry was 5/12/2021 under section 5(7) of LA Act. That was the main reason why the appellant’s current writ filed bit of late.

[94]Haque Appeal Affidavit [7].

The respondent submitted that any issue relating to costs orders was not a matter which would go to the justice of extending time.[95] It was also apparent from Dr Haque’s evidence that he had been advised by the State of Victoria by letter dated 3 June 2016 that it reserved its rights in relation to claiming its costs but was ‘willing to defer further action to enforce the costs order against you until such time as your financial circumstances have improved’.[96]
[95]Transcript 22/08/24/, T98.15-25.
[96]Haque Appeal Affidavit, Exhibit Bundle (Letter from Victorian Government Solicitor’s Office to Dr Haque, 3 June 2016).

It was not entirely clear why these costs orders were said to have been relevant to Dr Haque filing the writ in this court many years after the events, on 22 November 2022. The above evidence suggests that he may have waited to file until he understood the limitation period for the State to claim its costs to have expired. If that is the case, it is plainly not an appropriate reason to have delayed in bringing these proceedings. The entitlement of the State of Victoria to be paid costs in respect of Dr Haque’s unsuccessful claims in the County Court was no reason why Dr Haque could delay bringing any other proceeding against them. Any delay attributable to waiting until he perceived that a limitation period would have expired on the costs orders would certainly not be a proper reason for a court to grant an extension of time to bring further proceedings relating to the same facts as the proceedings giving rise to the costs orders.

The Associate Judge was correct to conclude that an Anshun estoppel applied to any claims relating to the 2010 arrest
The Associate Judge’s conclusions on res judicata and Anshun estoppel

The Associate Judge first considered the application of the doctrine of res judicata to the claims in this proceeding, correctly summarising the doctrine, by reference to the High Court’s observations in Port of Melbourne Authority v Anshun Pty Ltd,[97] as applying where a party attempts in a second proceeding to litigate a cause of action which has merged into judgment in a prior proceeding. Her Honour considered the matters which had been the subject of Judge Smith’s judgment.[98] Her Honour noted that Judge Smith had clarified the causes of action that the plaintiff relied on with a document titled ‘Causes of Action’ which Dr Haque approved.[99] There were five causes of action in total; three relating to an alleged wrongful arrest on 9 August 2009, and two causes of action in malicious prosecution for the charges commencing on 26 August 2008 and false imprisonment for the February 2010 arrest.
[97](1981) 147 CLR 589, 597.
[98]Reasons, [13]-[15].
[99]Reasons, [15] referring to the judgment of Judge Smith, Haque v State of Victoria [2013] VCC 1035, [9].

The Associate Judge found that the County Court judgment adjudicated on the claim for false imprisonment on 12 February 2010 when Dr Haque was arrested at his home and taken to Footscray Police station, and that the doctrine of res judicata prevented the plaintiff from re-agitating this claim.[100]
[100]Reasons, [22].

The Associate Judge observed that it was not strictly necessary for her to consider whether Anshun estoppel also applied, given her conclusions on res judicata, but that if she had not found that res judicata applied to the claim for false imprisonment, then she would have held that the doctrine of Anshun estoppel prevented Dr Haque from re-litigating the events from that time.[101] Her Honour cited Blair v Curran[102] and Anshun,[103] for the proposition that:[104]

Anshun or “issue” estoppel arises when an issue of fact or law has already been disposed of once and for all by judicial determination, and operates to prevent the same parties from raising the issue at a later time.

[101]Reasons, [24].

[102](1939) 62 CLR 464, 531 (Dixon J).

[103](1981) 147 CLR 589, 597.

[104]Reasons, [25].

The Associate Judge then referred to the content of the County Court proceedings and the judgment, which she had already recounted in her reasons. She noted that the same facts relating to the 2010 arrest arose for consideration; that there was a risk that any judgment would overlap with Judge Smith’s judgment, and that because Dr Haque had given no explanation for why the new claims relating to the 2010 arrest had not been made in the County Court proceedings, she concluded it was unreasonable for him not to have made them at that time.[105]
[105]Reasons, [26].

Dr Haque’s ground of appeal and submissions

Dr Haque’s third ground of appeal contends that the Associate Judge erred in her conclusion, at [26] of her Honour’s reasons, that it was unreasonable for Dr Haque not to have brought the current claims relating to the 2010 arrest in the earlier County Court proceeding. The focus of his argument appears to be that at the time he issued the County Court proceeding involving the 2010 arrest, in September 2011, he still had proceedings ongoing in relation to the charges which had been the basis for his arrest. Specifically he submits that the theft charges were withdrawn on 16 September 2010, and his civil claim alleging false arrest commenced on 22 September 2011.[106] Dr Haque states (referring to himself as the appellant):

The appellant’s criminal trial [s 459] commenced on 24/3/2010; judgment was on 30/8/2012. Two charges [s.459] were withdrawn on 22/11/2013. Finally the conviction was reviewed by the High Court on 11/10/2013. As the appellant criminal trial was not finalised before 22/9/2011, that was the main reason why the appellant was not able to include these torts [s.459] in the previous proceeding.

[106]Amended Notice of Appeal, [3.02].

The submissions and evidence of Dr Haque were not entirely clear on this issue but it appears that his reference to ‘charges [s. 459]’ were to the charges for reckless or dangerous driving in November 2009 which had been the second set of charges on which his arrest in 2010 was based.[107] The focus of his argument appeared to be that before he could bring his current claims for unlawful arrest, it was necessary for his criminal charges to have come to a final resolution. The basis for that view was not clearly expressed in his submissions on this appeal,[108] but appears to have been that he understood the law to be that if a person was found not guilty of offences, an arrest made under s 458 or s 459 of the Crimes Act 1958 would become unlawful, and claims for malicious prosecution or unlawful arrest would be available.[109]
[107]Appellant’s Outline of Submissions [2.02.2(a) and (c)].
[108]Transcript 22/08/24 T54.04-12; T55.29-T56.18.
[109]See Dr Haque’s submission dated 25 November 2014 in the County Court proceeding before Judge Dyer, relating to his claim for ‘Wrongful Arrest and false imprisonment on 9 August 2009’. That submission was in evidence on the appeal (Haque Appeal Affidavit, Exhibit Bundle (emphasis in original):
‘The defendant main contentions were that on 9 August 2009 the plaintiff was arrested for an outstanding warrant who failed to response summons in relation to a theft charges. However, on 16 September 2010 the theft charges were withdrawn … Hence the arrest and detention on 9/8/2009 in relation to a theft charges also became unlawful pursuant to section 461(1) of the Crimes Act 1958.
HIS HON judge Kyrou J in the Supreme Court of Victoria stated Section 461(1) of the Crime Act 1958 & said that: “Where an apprehension is made under abelief on reasonable grounds in accordance with the provisions of section 458 orsection 459 the apprehension shall not cease to be lawful or be taken to beunlawful where it subsequently appears or is found that the person apprehendeddid not commit the offence alleged” [Slaveski v State of Victoria & Ors (2010) VSC 441 at 94]. Hence the arrest on 9 August 2009 relating to both the offence assault & theft charges became unlawful, as the plaintiff did not committed the alleged offences.’

Respondents’ submissions

The Respondents submitted that the Associate Judge correctly held that the charges relating to false imprisonment were the subject of res judicata.

The Respondents contended that there was no error in the way that the Associate Judge then applied the principles in relation to Anshun estoppel. Her Honour had correctly considered, for the purposes of Anshun estoppel, the matters that had been the subject of the County Court proceedings before Judge Smith, and the claims in this proceeding. She concluded, that the ‘same facts arise for consideration’ in that they relate to the 2010 arrest, and the central contention that the arrest was unlawful, and that it was unreasonable not to have made them in the County Court proceeding. This was correct, as no explanation had been provided by Dr Haque as to why he had not made the claims in the County Court proceeding.[110]
[110]Transcript 22/08/24 T 64.10-T65.22.

With respect to the arguments now made by Dr Haque on appeal that the reason he did not make the claims in the County Court proceeding was that the criminal charges had not come to a resolution, counsel for the Respondents submitted that it was open to bring a false imprisonment or unlawful arrest claim before there is any determination as to whether or not the person has committed an offence. This is because the arrest power is premised on the existence of a reasonable belief of the police officer.[111] The fact that a person is found not to have committed the offence does not make the arrest unlawful.[112] Counsel for the respondent also noted that Dr Haque had in fact claimed in the County Court proceeding that he had been unlawfully arrested in February 2010.[113]
[111]Transcript 22/08/24 T93.19-29, referring to s 459 of the Crimes Act which refers to ‘belief on reasonable grounds’ that an indictable offence has been committed.
[112]Transcript 22/08/24 T94.31-T95.04, referring to s 461 of the Crimes Act.
[113]Transcript 22/08/24 T93.19-21.

Consideration

The Associate Judge was correct in her conclusion that the principles of Anshun estoppel precluded Dr Haque from bringing the claims in this proceeding based on the 2010 arrest, given that he had already litigated similar claims based on that arrest in the County Court proceedings (and subsequent appeals).

In considering this ground of appeal I do note that the way in which her Honour described the principles may not have encompassed the full scope of the principles encompassed by issue estoppel and Anshun estoppel. Her Honour stated the principles as follows:[114]

Anshun or “issue” estoppel arises when an issue of fact or law has already been disposed of once and for all by judicial determination and operates to prevent the same parties from raising the issue at a later time.

[114]Reasons, [25].

This did not refer expressly to the High Court’s further reference in Anshun to what it described as ‘the extended principle expressed … in Henderson v Henderson’, in the following terms:[115]

… where a given matter becomes the subject of litigation in, and of adjudication by, a Court of competent jurisdiction, the Court requires the parties to that litigation to bring forward their whole case, and will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of matter which might have been brought forward as part of the subject in context, but which was not brought forward, only because they have, from negligence, inadvertence, or even accident, omitted part of their case. The plea of res judicata applies, except in special cases, not only to points upon which the Court was actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation, and which the parties, exercising reasonable diligence, might have brought forward at the time.

[115]Anshun, 598, citing Henderson v Henderson (1843) 3 Hare, 115.

The principles of estoppel recognised in Anshun are not limited to the traditional issue estoppel recognised in Blair v Curran (when an issue of fact or law has been judicially determined, thus precluding parties from raising it in later litigation), but may extend to preclude parties from raising claims based on related matters based on the same facts which might have been brought forward at the same time.[116] Her Honour focussed on the principles of issue estoppel in her description of the principles. It was the broader aspect of the Anshun estoppel principles, relating to related claims which should reasonably have been brought forward in earlier proceedings, which was relevant in this aspect of the application.[117]
[116]ACN 074 971 109 Pty Ltd (As Trustee for the Argot Unit Trust) v The National Mutual Life Association of Australasia Ltd (No 2) (2013) 41 VR 476, 509 [113]-[115] (Nettle, Neave JJA and Robson AJA).
[117]For this reason, it was not entirely correct for her Honour to observe at [24] that having found that res judicata precluded the specific claim of false imprisonment in 2010, it was unnecessary to consider the application of Anshun estoppel: the latter doctrine was relevant to all claims sought to be made in this proceeding with respect to the 2010 arrest, and not just the false imprisonment claim.

However, that limitation in her Honour’s expression of the principles did not have any impact on the Associate Judge’s correct disposition of the application on the basis that the claims were precluded by Anshun estoppel.[118] The principles that her Honour applied when considering the Anshun estoppel argument, and her Honour’s application of those principles to the facts at [26] of her Reasons, makes clear that her Honour was applying the ‘extended principle’ of estoppel recognised in Anshun in finding that the claims in this proceeding were estopped. Her Honour observed that the matter on which Judge Smith had adjudicated related to the 2010 arrest, as did the claims in this proceeding, and there was a risk that judgment in this proceeding would overlap with Judge Smith’s judgment. Her Honour then concluded:

The plaintiff gave no explanation as to why any new claims relating to the February 2010 arrest were not made in the County Court proceedings. It was unreasonable for him not to have made the claims at that time.

[118]As her Honour made clear at [24] of her Reasons.

This conclusion that it was unreasonable for Dr Haque not to have made the current claims at the time of the County Court proceeding, given they also related to the 2010 arrest, is the central element of the doctrine of Anshun estoppel, and demonstrates her Honour’s correct application of the principles.

There was therefore no error in the Associate Judge’s application of the Anshun estoppel principles to conclude that, in addition to the specific cause of action in false imprisonment being barred by res judicata, all new claims relating to the 2010 arrest could not be brought.

That leaves only the argument made by Dr Haque on appeal that he could not have brought the claims now made in this proceeding in relation to the 2010 arrest in the County Court proceeding because the processes with respect to the underlying criminal charges had not concluded until the High Court dismissed his special leave application in 2013. I am not persuaded that he made this argument before the Associate Judge, so that there was no error on her Honour’s part in not addressing it, and it is not clear the basis for considering this matter on a rehearing is established. However I address it now for completeness.

I accept that there is no need to wait until charges for alleged criminal conduct are resolved before a claim of unlawful arrest based on the arrest for that conduct could be brought. The relevant question is whether the arresting officer had a reasonable belief that a relevant offence had been committed.[119] A legal principle of that nature may not, however, necessarily be understood by an unrepresented litigant. In assessing for the purposes of the Anshun principles whether it was unreasonable not to bring forward claims, it is relevant to consider the unrepresented status of the relevant litigant. This has been recognised by the Court of Appeal in Sahin v NAB & Anor,[120] Slaveska v State of Victoria & Ors,[121] and Phillip Morris v Attorney-General.[122] I do take into account Dr Haque’s unrepresented status and the fact that he may not have had access to legal advice in considering his position. However I also take into account that Dr Haque did in fact make allegations in the County Court proceeding that he was unlawfully arrested in February 2010, as a foundation to his claim that he had been falsely imprisoned. These allegations are acknowledged by Judge Smith in his judgment.[123] In these circumstances, I do not accept that the explanation now raised by Dr Haque was a reason for not bringing forward the unlawful imprisonment and other causes of action based on the 2010 arrest in the County Court proceeding. It was unreasonable for Dr Haque not to do so. As a result, the principles of Anshun estoppel preclude him from making the claims in this proceeding.
[119]Crimes Act 1958, ss 459 and 461.
[120][2012] VSCA 317, [98] (Ferguson AJA, Warren CJ and Neave JA agreeing).
[121][2015] VSCA 140, [221]-[222] (Warren CJ, Tate JA and Ginnane AJA).
[122](2006) 14 VR 538, 553, [67]-[68] (Maxwell P).
[123]Haque v State of Victoria [2013] VCC 1035, [13(b)] and [127].

In summary, the Associate Judge’s determination as to the application of Anshun estoppel to all of the claims in the Statement of Claim based on the 2010 arrest was correct.

The costs orders made by the Associate Judge

Dr Haque also appeals against the orders made by the Associate Judge on 5 June 2024 that Dr Haque pay the Respondents’ costs of the summary judgment application. Her Honour found that as the defendants (now the Respondents) succeeded in their application, the ordinary rule should apply, and that it was just that the defendants should receive the costs of the application. Her Honour considered arguments put forward by Dr Haque as to why he should not be required to pay costs, including that because the Respondents were the State of Victoria and police officers who are insured by the State of Victoria, and so do not have to pay for representation. The Associate Judge firmly rejected that submission, observing that the ordinary costs rules apply to the Crown and to police officers. Her Honour referred to Blackall v Trotter (No 1),[124] which confirms that the State is entitled to seek the recovery of costs.[125]
[124] [1969] VR 939.
[125]Transcript 06/06/24 T17-T19.

Dr Haque has not identified on appeal any reason why her Honour erred in making the costs order, but appears to have sought that the orders be set aside as a consequence of any success in having the primary orders set aside.

The appeal against the Associate Judge’s substantive determination having been unsuccessful, it remains the case that the Respondents have succeeded and there was no error in her Honour’s exercise of discretion to the effect that costs follow the event. The appeal as against the costs orders made by her Honour will be dismissed.

Conclusion

For the above reasons, none of the matters raised by Dr Haque in his grounds of appeal and his written and oral submissions show any error of law on the part of the learned Associate Judge in granting summary judgment. I am satisfied on this rehearing that her Honour’s decision was correct, that Dr Haque’s claims had no real prospect of success, and that it was appropriate to enter summary judgment for the Respondents on the claims. There was also no error in her Honour’s determination on costs.

The appeal will be dismissed. I will hear the parties on the costs of the appeal and on the form of orders.

SCHEDULE OF PARTIES

BETWEEN:
DR. ZAHIDUL HAQUE	Appellant
AND
THE STATE OF VICTORIA	First respondent
CONSTABLE JOHN TSIANAKAS	Second respondent
CONSTABLE MATT LANDY	Third respondent
SENIOR CONSTABLE HANNAH CHAPMAN	Fourth respondent
TWO UNKNOWN PERSON (UNIDENTIFIED)	Fifth respondent
TWO UNKNOWN PERSON (UNIDENTIFIED)	Sixth respondent

[2024] VSC 703

15 November 2024