Heffernan v Victoria Legal Aid
[2001] VSC 496
•6 December 2001
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
COMMERCIAL AND EQUITY DIVISION
No. 5445 of 1999
| KAY GWENNETH HEFFERNAN | Plaintiff |
| V | |
| VICTORIA LEGAL AID & ORS. | Defendant |
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JUDGE: | McDonald J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 6 December 2001 | |
DATE OF JUDGMENT: | 6 December 2001 | |
CASE MAY BE CITED AS: | Heffernan v Victoria Legal Aid and Ors | |
MEDIUM NEUTRAL CITATION: | [2001] VSC 496 | |
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Summons to dismiss or stay proceedings as an abuse of process: proceedings alleged to be collateral attack on verdict in criminal trial and decision of Court of Appeal: delay in instituting application: proceeding fixed for trial before summons issued: fresh evidence: issue raised by summons also raised by another defendant in his defence: summons adjourned to trial judge: directions as to expert evidence.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr. C. Gunst QC with Mr. T. Lynch | John Morrow |
| For the Defendant | Mr. D. Masel | Ebsworth & Ebsworth |
HIS HONOUR:
I propose to give my decision in the matter that has been the subject of debate and submissions this morning. The proceeding before the court was commenced by writ issued on 14 May 1999 in which Richard Heffernan was plaintiff, and Victoria Legal Aid was the first defendant. It was alleged that it was the employer of the second defendant, Harvey. Harvey, it is alleged, was the solicitor who acted for Heffernan on his trial, to which I shall later refer. The third defendant was the barrister who acted as counsel for Heffernan on the trial to which I shall hereafter refer.
From the material before the court it appears that on 5 June 1991 a fire commenced at the business premises of the then plaintiff, Richard Heffernan. He subsequently was presented for trial before the County Court at Melbourne charged with one count of arson and one count of attempting to obtain financial advantage by fraud. His trial commenced in May of 1993 and after some 12 days, and on 6 June 1993, he was found guilty on each count. On 10 June 1993 he was sentenced to two years imprisonment on each count, it being further ordered that 15 months of each sentence be suspended.
The then plaintiff, Richard Heffernan appealed to the Court of Appeal. On 20 May 1994 his appeal against conviction and sentence was dismissed. Thereafter it appears that he presented a Petition for Mercy, but that was not allowed. In consequence of the sentence imposed on Richard Heffernan he served nine months imprisonment. In these proceedings as commenced by Richard Heffernan he alleged that through the negligence of the secondnamed defendant, for which the firstnamed defendant was vicariously liable and/or the negligence of the thirdnamed defendant, he was convicted as referred to.
It is alleged as appears from paragraph 18 of the Statement of Claim:
"To the knowledge actual or constructive of the Legal Aid Commission the Second Defendant and Third Defendant;
(a)The central and fundamental part of the Crown case against the plaintiff was that the accelerant used in the fire was mineral turpentine, the quantity of which was said to be present also in the boot of the plaintiff's car, and
(b)expert evidence was available or could be obtained to disprove this central and fundamental part of the Crown case against the plaintiff."
In substance it was alleged that through the acts and omissions in particular of the second defendant and the third defendant the plaintiff, Richard Heffernan was convicted of the offences referred to.
On 2 July 1999 the first and second defendants filed their defence in this proceeding. By paragraph 26 of their defence they alleged:
"In the circumstances, the plaintiff's claim is a collateral attack on the jury verdict referred to in paragraph 12(c) of the statement of claim and the Appeal decision and is an abuse of process, or alternatively against public policy.
PARTICULARS
The plaintiff's claim is for damages based on the allegation that he would not have been convicted, sentenced and imprisoned if the evidence referred to in paragraph 18(b) of the statement of claim had been obtained and lead. Consequently, it involves a review amounting to a retrial of the trial referred to in paragraph 10 of the statement of claim and a reconsideration of the Appeal decision."
The third defendant had previously filed a defence in the proceeding not making a like allegation. However, by his amended defence the third defendant also pleaded that the claim of the plaintiff in these proceedings amounted to a collateral attack on such previous decision of the County Court, and the Court of Appeal.
As appears from the file of these proceedings, on 9 May 2000 the first and second defendants filed a notice of contribution against the third defendant. On 11 May 2000 the third defendant filed a notice of contribution against the first and second defendant. On 18 May 2000 the third defendant joined the present third party in these proceedings. It appears that the present third party in these proceedings was the solicitors acting on behalf of Richard Heffernan before the conduct of his trial was taken over by the Legal Aid Commission, and by the second defendant.
On 12 November 2000 the plaintiff to whom I have referred, Richard Heffernan died. He was aged 53 years of age. Thereafter, orders were made permitting the present plaintiff, the executrix of the estate of Richard Heffernan to become the plaintiff in the proceedings. Amendments were made to the statement of claim, but they made no amendment other than that relevant to her being the plaintiff to the proceedings, and bringing the proceedings on behalf of the estate of Richard John Heffernan deceased.
Is to be noted that in the amended pleadings, no allegation is made that any negligence on behalf of the first, second and/or third defendant was a cause of the death of Richard John Heffernan. On 19 June 2001 Master Kings, by order fixed the trial date for these proceedings to be 18 February 2002. To the present time, that trial date remains the date on which the trial of these proceedings shall commence.
On 22 August 2001 the first and second defendants by summons filed that day caused the present proceedings, before this court, to be initiated. It was directed to the plaintiff and also directed to the third defendant, and the third party. By that summons, first and second defendants sought orders that:
(1)Pursuant to R 23.01 or alternatively in exercise of the inherent jurisdiction of the court, the proceeding be forever stayed as an abuse of the process of the Court.
(2)Alternatively, there be judgment for the first and second defendants.
(3)The plaintiff pay the first and second defendants costs of this proceeding, including the costs of this application.
(4)Alternatively that there be a trial of the preliminary issue, namely, whether assuming the defendants were negligent in the preparation and conduct of the deceased's defence, and the deceased has been convicted as a result, the plaintiff's claim is sustainable at law or should be allowed to proceed.
(5)Such further order or other relief as the court deems fit.
It is to be noted that in that summons no order is sought against the third defendant, nor is there any order sought against the third party. The first and second defendants seek orders only against the plaintiff in these proceedings by that summons.
On 27 August 2001 a Master of the court referred the summons to be heard and determined by a judge of the court.
The matter that the first and second defendant seek to litigate by this summons, is that which I have referred to in their plea in paragraph 26 of their defence, that the plaintiff's claim against them is a collateral attack against the jury verdict of the County Court, and also against the decision of the Court of Appeal and that as such it is an abuse of the process of this court, and the proceeding should be stayed and not allowed to proceed.
If an order was made as sought by the first and second defendant in these proceedings, it seems to me that nevertheless, on the trial of these proceedings, the matter as to whether the proceedings constitute a collateral attack on the jury verdict of the County Court, and the decision of the Court of Appeal would need to be litigated as between the plaintiff and the third defendant. The third defendant has sought not similar relief by summons in these proceedings.
It is to be noted, as I have referred to, that the third defendant has brought contribution proceedings against the first and second defendant, and he has also joined the deceased's former solicitors as third parties in these proceedings. As the pleadings stand at present with respect to the plea of the third defendant against the claim of the plaintiff, and his claim, by way of contribution against the first and second defendant, and his claim against the third party, they would continue and need to be heard and determined by the court. Therefore there would need to be determined and heard at trial the question as to whether the plaintiff's claim against the third defendant constitutes a collateral attack on the verdict in the County Court and a decision of the Court of Appeal.
It was submitted that such would not be the case. It was submitted on behalf of the first and second defendants that the summons was directed also to the third defendant and the third party. I was told that when the matter first became before the Master they were present but took no part in the proceeding then before him and indicated that they did not intend to take part in that proceeding.
In my view it cannot be said that the summons in any way would, if upheld, cause the whole of the proceeding, that is, the proceeding not only against the first and second defendant but the proceeding of the plaintiff against the third defendant to be stayed. No order has been sought by summons on behalf of the third defendant. It cannot be said, in my view, that the summons now before the court would enable an order to be made by the court staying the proceedings of the plaintiff against the third defendant which would thereafter affect the contribution proceedings brought by the third defendant against the first and second defendant and the proceedings brought by him against the third party.
Accordingly, it is necessary, in my view, to have regard to the summons before the court as a summons brought by the first and second defendant only for relief claimed. The fact that the third defendant and the third party do not appear before the court this day, to my mind, does not affect that matter at all.
On behalf of the plaintiff senior counsel submitted that having regard to the delay that has occurred between the time of the issue of the proceedings on 14 May 1999 and the time of the issuing of the summons on 22 August 2001, the period of time that has been allowed to elapse is such that the court should dismiss the summons for that reason alone.
On behalf of the first and second defendant counsel has informed the court quite frankly that the period of delay cannot be explained. However, he has submitted that on the material presently before the court it should be considered that there exists at least a prima facie case of an abuse of the process of the court by the institution and the prosecution of these proceedings and that once there is seen by the court to be an abuse of the process, notwithstanding that there has been a delay in seeking an order, such as is presently sought, the court should deal with the application before the Court.
In my view the fact that there has been a delay in the institution of these proceedings should not lead me to conclude, and it does not lead me to determine that the summons of the first and second defendants should be dismissed on that ground alone.
In the submissions made on behalf of the first and second defendants, counsel on their behalf, as I have referred to, submitted that there was at least prima facie evidence that there was a collateral attack on the verdict on trial in the County Court and also on the decision of the Court of Appeal. He has referred to a number of decisions on which he bases his submission that if a civil proceeding is seen to be a collateral attack on a verdict of a jury in a criminal proceeding, then if that was perceived to be the case, then, it should be considered that such collateral attack constitutes an abuse of process and the court should not permit that to continue. As I have referred to, he has referred to a number of decisions. The principal decision relied on is the decision of the House of Lords in Hunter v. The Chief Constable of West Midlands Police [1982] A.C. 529 and in particular the judgment of Lord Diplock.
In the course of his submissions counsel for the first and second defendants accepted that there may be an exception to the rule that if it was seen that a civil proceeding amounted to a collateral attack on an earlier decision of a criminal court the proceeding should be stayed. He accepted that there may be such an exception where it is to be seen that there now exists that which is referred to as "fresh evidence" now before the court which was not before the Criminal Court on trial or in this case, the Court of Criminal Appeal.
As I have referred to, the gist of the case against each of the first, second and third defendants, is by their acts and omissions, they failed to advise that evidence should be obtained and/or they failed to obtain evidence which is now said to be available which would indicate that the fire, the subject matter of the criminal proceedings, was not caused by the use of turpentine and that therefore by that evidence not being obtained and called the deceased had been deprived of an opportunity to be acquitted at trial.
During the course of debate and submissions made to the court by senior counsel for the plaintiff, it was accepted, as far as I can ascertain, that indeed the plaintiff seeks to put what is referred to as "fresh evidence" before the court. However, he accepts that when one has reference to the material now placed before the court the details of that fresh evidence does not appear. At this stage in the proceedings there has been provided to the defendants no outline of the evidence to be called at trial by an expert who it is expected, is likely to give evidence that as at the time of the trial had this matter been investigated properly there would have been available evidence that the fire was not caused by the use of turpentine alone and therefore that was relevant to that part of the evidence called at trial which was to the effect that turpentine was said to be present, either in stain form or otherwise, in the boot of the deceased's motor car.
It appears to me that if the proceeding now before the court on summons was to be heard and determined by the court, it would be necessary for the plaintiff to be able to lead such evidence before this court now, in order to ascertain whether there exists such fresh evidence and whether in consequence there exists an exception to the rule to which I have referred to. Without such evidence being able to be placed before the court, the court would be in no position to determine whether such fresh evidence exists, and whether in the circumstance of this case there exists an exception to the rule that a collateral attack should not be permitted in civil proceedings against a judgment in a criminal trial and against a judgment of a Court of Appeal from such verdict. It seems necessary to me that such evidence would need to be put before the court by the plaintiff if that is to be pursued on this summons.
Senior counsel on behalf of the plaintiff argued, however, that this summons should not be allowed to proceed but, rather, the judge at trial should determine this issue as one of the issues to be determined at trial.
I am of the view that before the trial commences on this proceeding that the trial judge ought to have before him or her the issue now raised. The issue raised in these proceedings is whether the trial should proceed. It will be for the trial judge to determine, in my view, whether the trial on all issues should proceed or whether there should be an order made by him or her determining that a preliminary issue should be heard and determined as I have previously referred to.
In my view the best manner in which this can be achieved and the whole matter can be best litigated and investigated by the trial judge is for me to adjourn the present summons to the trial date. It was submitted that if that was to be done then, in effect, the trial date should be vacated in order to allow the trial judge to determine this issue and that if it was determined, in favour of the plaintiff, then to proceed with the trial. In my view, all matters relevant to the trial and the conduct of the trial and the issues to be determined at trial or determined by the trial judge before trial, should be before the trial judge at the one time.
Accordingly, the conclusion that I have reached is that the summons of the first and second defendants should be adjourned to the trial date, 18 February 2002, and be returnable before the judge who has the trial of these proceedings listed for hearing.
However, I am also of the view that in order that the trial judge can be full appraised of the issues that may be litigated, if this summons is heard as a separate proceeding before the trial commences, or if the trial judge determines that a preliminary issue should be determined before the trial commences, or if the trial is thereafter to commence, that there should be put before the court clear evidence which it is now said, on behalf of the plaintiff, to constitute fresh evidence and evidence of the nature referred to in paragraphs 18(a) and (b) of the statement of claim.
In my view, it should be ordered, and I propose to order, that on a date before the trial date there be filed and served by the plaintiff an affidavit or affidavits of witnesses to be called, deposing in such affidavits the expert evidence which is said now to be available and could have been obtained to disprove the central and fundamental case of the Crown against the deceased at trial, if the defendants had not acted in beach of the duty of care that they owed to the deceased.
Having reached such conclusions the first order I propose to make and do make is that the summons of the plaintiff filed on 22 August 2001 be adjourned to the 18 February 2002 before the judge before whom the trial of this proceeding is listed.
As to the form of the order, as to the nature and content of affidavits to be filed and served I will hear from counsel.
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