Haque v Victorian Police - [2010] VSCA 219

SUPREME COURT OF VICTORIA

COURT OF APPEAL

DR ZAHIDUL HAQUE	S APCI 2010 0087
DR ZAHIDUL HAQUE	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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2010] VSCA 219
Decision Date: 27 August 2010

CaseChat Overview and Summary

Haque v Victorian Police was a case before the court involving a plaintiff suing the Victorian Police. The plaintiff's initial statement of claim was deemed embarrassing and manifestly defective, leading to an application for leave to appeal against orders that had struck out the statement of claim. The plaintiff sought leave to amend the writ and file an amended statement of claim. The court was tasked with determining whether the decision to refuse leave to appeal was correct, and if there was any substantial injustice in leaving the decision unreversed.

The legal issues before the court involved the propriety of the lower court's decision to strike out the plaintiff's statement of claim and the appropriateness of the conditions attached to the leave to appeal. Specifically, the court had to assess whether the lower court's decision was not wrong or attended with doubt and whether there was any substantial injustice in maintaining the decision. The court examined the circumstances under which leave to appeal should be granted, considering the balance between procedural fairness and the need to prevent abuse of the court process.

The court found that the lower court's decision was not wrong or attended with doubt. It concluded that the plaintiff's statement of claim was indeed defective and that the conditions attached to the leave to appeal were reasonable. The court held that there was no substantial injustice in leaving the decision unreversed, as the plaintiff had ample opportunity to correct the defects in their statement of claim. Consequently, the application for leave to appeal was dismissed, and the court affirmed the lower court's orders.

The court's final orders were to dismiss the application for leave to appeal, thereby upholding the lower court's decision to strike out the plaintiff's statement of claim and deny leave to amend the writ and file an amended statement of claim. The plaintiff was left to address the defects in their pleadings in accordance with the court's directions.

Orders