Haque v Victorian Police
[2010] VSCA 219
•27 August 2010
SUPREME COURT OF VICTORIA
COURT OF APPEAL
| DR ZAHIDUL HAQUE | S APCI 2010 0087 |
| Applicant | |
| v | |
| VICTORIAN POLICE | Respondent |
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APPLICATION ON SUMMONS
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JUDGES: | REDLICH JA and BEACH AJA | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 27 August 2010 | |
DATE OF JUDGMENT: | 27 August 2010 | |
MEDIUM NEUTRAL CITATION: | [2010] VSCA 219 | |
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PRACTICE AND PROCEDURE – Writ and statement of claim embarrassing – Statement of claim manifestly defective – Application for leave to appeal from orders striking out the statement of claim with leave to amend the writ and leave to file an amended statement of claim – Decision not wrong or attended with doubt – No substantial injustice in leaving decision unreversed – Application for leave to appeal dismissed.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | In person | |
| For the Respondent | Mr S Wotherspoon | Victorian Government Solicitors Office |
REDLICH JA:
BEACH AJA:
Introduction
On 31 March 2010, Dr M D Zahidul Haque, the applicant, issued a writ in the County Court against defendants, whom he named collectively ‘Victorian Police’. The writ was endorsed as follows:
Nature of claim: Defame, Medical treatment cost due to defame & work compensation.
Total amount of claim: 1.2014 million dollar.
In paragraph two of the statement of claim endorsed on the writ, the defendants were described in the following terms:
2.The defendants were the on duty members of the police force with their vehicle registration number MCH 063.
It is not entirely clear, but this appears to be a reference to police officers who were using a motor vehicle on 9 August 2009 at about 12.20pm at or about the intersection of Latrobe Street and Swanston Street, Melbourne.
On 12 April 2010, the Victorian Government Solicitors Office filed an appearance in the following terms:
FILE an appearance for Victorian Police (sic) the abovenamed defendant.
It might immediately be observed that whilst the author of the notice of appearance has named the defendant in accordance with the name on the writ, the notice of appearance suggests there is only one defendant; whereas the writ refers to multiple defendants, described as ‘Victorian Police’.
On 16 April 2010, the Victorian Government Solicitors Office wrote to the applicant asserting that the writ and statement of claim were defective. Under the heading ‘wrong defendant’, the letter provided:
We note that you have named Victorian Police (sic) as the defendant in the writ. We advise that Victoria Police is not a legal entity capable of being sued. The proper defendant(s) should be the State of Victoria, or the relevant members of Victoria Police, or both the State and the relevant members.
We refer you to s 123 of the Police Regulation Act 1958 (PR Act) which provides a mechanism for the attachment of liability of members of Victoria Police to the State of Victoria. In our view, it is appropriate for you to plead causes of action against identified members of Victoria Police and then plead an attachment of liability to the State pursuant to s 123 of the PR Act.
After identifying defects in the statement of claim, the letter went on:
We therefore request that you amend your writ and statement of claim accordingly. We urge you to seek legal advice in relation to this matter.
Finally, we advise that we do not propose to file a defence until after you have filed and served an amended writ and an amended statement of claim or advised us that you will not be amending these documents. We therefore request that you confirm that you will refrain from obtaining judgment in default of a defence being filed by the State of Victoria, pending your response.
Ultimately, the applicant did not provide a response satisfactory to the Victorian Government Solicitors Office, and a summons was issued by that office seeking orders as follows:
(1) The plaintiff’s statement of claim be struck out pursuant to County Court Rule 23.02; and
(2) The plaintiff pay the defendant’s cost (sic) of the application.
On 11 June 2010, Judge Misso made the following orders in the matter:
(1) The plaintiff have leave to amend the heading of the writ to identify the defendant or defendants against whom the proceeding is to be brought and to file the same on or before 4.00pm 30 July 2010.
(2) The statement of claim endorsed on the writ is struck out. The plaintiff have leave to file an amended statement of claim against the defendant or defendants referred to in paragraph (1) at the same time as the filing of the amended writ.
(3) The plaintiff serve the amended writ and amended statement of claim at the same time on the defendants referred to in paragraph (1).
(4) The entitlement of the State of Victoria to its costs of this day be reserved.
(5) Liberty to apply.
The applicant now seeks leave to appeal against the orders of Judge Misso. We were told this morning that the County Court has administratively stayed the operation of Judge Misso’s order pending the determination of the present application.
The test for leave to appeal
In order to obtain leave to appeal, the applicant must show that the decision below was wrong, or at least attended with sufficient doubt to justify granting leave. Additionally, the applicant must show that substantial injustice would be done by leaving the decision unreversed.[1]
[1]Niemann v Electronic Industries Limited [1978] VR 431.
The statement of claim
The statement of claim is manifestly defective. It does not comply with the rules of pleading. Specifically, it does not (as is required by r 13.02) ‘contain in a summary form a statement of all the material facts on which the party relies, but not the evidence by which those facts are to be proved’. Instead, the statement of claim is a confusing narrative of events alleged to have occurred on (amongst other dates) 9 August 2009 and 12 February 2009, intermixed with argument and asserted propositions of law. Further, the statement of claim contains a number of assertions, the relevance of which cannot be ascertained. This is exacerbated by the fact that it is impossible to discern with any precision precisely what causes of action are sought to be advanced by the applicant.
As a separate issue, the statement of claim is embarrassing in at least one respect in that it is unclear whether the applicant seeks to maintain claims against multiple individual police officers or an entity labelled ‘Victorian Police’ or both. In this regard, the applicant’s written submission does not assist. In that submission, the applicant variously asserts:
(a) ‘Victoria Police’ is a legal entity;
(b)‘Victorian Police’ or ‘Victoria Police’ is ‘more or less the same meaning’; and
(c) ‘Victoria Police’ or ‘State of Victoria’ are ‘the same authority’.
The identification (naming) of the defendant(s)
To the extent that the writ and statement of claim seek relief against multiple defendants who are described under the umbrella ‘Victorian Police’, the writ and statement of claim are defective. No rule of procedure permits such a course.
Similarly, to the extent that the writ and statement of claim seek relief against a body or entity known as ‘Victorian Police’, the applicant’s claim is flawed. The applicant does not seek to identify a body corporate named ‘Victorian Police’. The applicant’s argument appears to be that ‘Victorian Police’ is more or less the same thing as ‘Victoria Police’, and ‘Victoria Police’ is the same as ‘State of Victoria’. If, as appears to be the case, the applicant seeks to maintain a claim against the State of Victoria, then the State of Victoria should be identified as a defendant.
The applicant sought to justify his position by reference to cases in which ‘Victoria Police’ is named as a party. None of these cases assist the applicant. In some cases, it is clear that the State of Victoria (or its insurer) did not take the point. In other cases, the point was raised and dealt with by an amendment or the trial judge foreshadowing that he or she would allow an amendment.[2] In yet other cases, ‘Victoria Police’ may have been named as an agency within the meaning of the Freedom of Information Act 1982.[3] None of the authorities cited stand for the proposition that ‘Victorian Police’ is a body or entity capable of being sued in that name.[4] Further, and in any event, the writ does not name ‘Victoria Police’ as the defendant – it names ‘Victorian Police’ as the defendants.
[2]See for example Konrad v Victoria Police (1998) 152 ALR 132, 146, where Marshall J held that the employer (State of Victoria) was deemed by s 170EA(5) of the Industrial Relations Act 1988 (Cth) to be a party to the proceeding. Consequently, his Honour said he would have allowed an application for the name of the respondent and the title of the proceeding to be amended, if necessary (whilst an appeal from this decision was successful, his Honour’s reasoning on this issue was untouched: see Konrad v Victoria Police (State of Victoria) (1999) 165 ALR 23).
[3]See the definitions of ‘agency’ and ‘department’ in s 5 of the Freedom of Information Act. See further ss 5, 6 and 16 of the Public Administration Act 2004.
[4]See further Commissioner of Police v Hallenstein (1996) 2 VR 1, 22 (Hedigan J) and Huang v Victoria Police [2002] VSC 360, [7] (Harper J, as his Honour then was).
The disposition of this application
It follows from what we have just said that Judge Misso’s decision to strike out the statement of claim and give the applicant leave to amend the heading of the writ and leave to re-plead was not wrong or attended with doubt sufficient to justify the granting of leave to appeal. Further, leaving the decision unreversed would not result in any injustice (substantial or otherwise). If there is any individual whom the applicant wishes to obtain relief from, and whose name is not known to the applicant, then procedures exist to enable the discovery of the name of that person.[5]
[5]See rules 32.03 and 32.04.
Additional complaints
The applicant makes two further complaints:
(a)First, he contends that the judge below should not have entertained the application against him because the time for the delivery of a defence had expired at the time the summons was heard; and
(b)secondly, the judge did not shut out an affidavit served 20 minutes before the hearing.
There is no substance in either of these complaints. As we have said, the statement of claim is manifestly defective. It had to be struck out. Further, the description of the defendant (or defendants) is embarrassing and leave to amend the title of the proceeding was required, if the proceeding was not to be struck out or permanently stayed.
So far as the late service of the affidavit is concerned, the affidavit merely exhibited correspondence between the parties. There was nothing contentious in it. There was no occasion to adjourn the summons before his Honour.
Conclusion
It follows that the application for leave to appeal must be dismissed.
Postscript
Judge Misso’s order required the applicant to amend the writ and statement of claim by 30 July 2010. That time limit expired whilst this application was pending, subject to the stay administratively granted by the County Court. During the course of argument, we enquired of counsel for the State of Victoria, whether any point would be taken in relation to time if the applicant amended the writ and statement of claim by 4.00pm 30 September 2010. We made this inquiry as it would appear that any amendment would likely name the State of Victoria as a defendant. We were told that the State of Victoria would not take any point as to time if the applicant made his amendments within that timeframe. Accordingly, it is not necessary for us to consider further a variation of Judge Misso’s orders.
REDLICH JA:
The order of the Court is that the application for leave to appeal is dismissed.
(Discussion ensued.)
REDLICH JA:
We do not think this is an appropriate case in which to make an order for costs.
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