Marinelli v State of Victoria
[2018] VSC 251
•16 May 2018
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
MAJOR TORTS LIST
S CI 2016 00811
| ROBERT MARINELLI | Plaintiff |
| v | |
| STATE OF VICTORIA | Defendant |
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JUDGE: | Keogh J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 10 May 2018 | |
DATE OF RULING: | 16 May 2018 | |
CASE MAY BE CITED AS: | Marinelli v State of Victoria | |
MEDIUM NEUTRAL CITATION: | [2018] VSC 251 | First revision: 18 May 2018 |
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PRACTICE AND PROCEDURE – Trial by jury – Complexity of facts – Order 47 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) – Notice given for jury trial – Application to dispense with jury trial – Application dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr S Wilson QC and Mr C Truong | Spencer Reyner Law Office Pty Ltd |
| For the Defendant | Mr S Hay | Victorian Government Solicitors Office |
HIS HONOUR:
In November 2012 criminal proceedings were instituted against the plaintiff, Mr Marinelli, in the Melbourne Magistrates’ Court in connection with an alleged fraudulent claim with the AAMI insurance company (AAMI) (the criminal proceedings). It was alleged Mr Marinelli dishonestly obtained financial advantage for another by lodging a false insurance claim, dishonestly obtained cash by participation in a fraudulent insurance claim, and attempted to obtain property by deception. Mr Marinelli alleges that, in instituting and continuing the criminal proceedings, the informant, Senior Constable Douglas, acted maliciously and without reasonable and probable cause. He says that as a result of the malicious prosecution he is entitled to an award of damages for injury to his credit, character and reputation, and damage to his property and business. The State of Victoria accepts that if Mr Marinelli can establish the claim made then it will be liable to him pursuant to s 74 of the Victoria Police Act 2013 (Vic).
When he commenced this proceeding, Mr Marinelli nominated trial by judge alone. The defendant gave notice for trial by jury. The positions of the parties in relation to the mode of trial is now reversed. State of Victoria has applied for the proceeding to be tried without a jury because, it says, the matters to be determined are too complex. Mr Marinelli opposes the application, and contends the matters for determination are well within the capacity of a jury.
Background
Mr Marinelli was a director and shareholder of Ultra Finish Dandenong Pty Ltd, which traded as an auto repair panel beating business operating in Dandenong and Mulgrave under the name Ultra Finish Small Repairs (Ultra Finish).
The criminal proceedings relate to an alleged fraudulent claim with AAMI concerning a car accident which was said to have occurred on or about 11 February 2009. The Crown case was that Mr Marinelli, together with co-accused Mr Hoctor and Mr Drew, conspired to fake a car accident involving a vehicle owned by Mr Drew and a second vehicle owned by the company Corpstreet Pty Ltd. I understand at that time Mr Hoctor was an employee, and Mr Drew a customer, of Ultra Finish. On 12 February 2009 Mr Drew lodged an insurance claim with AAMI in relation to damage to his vehicle, as a result of which money was paid to Mr Drew’s benefit by AAMI. Magistrates’ Court proceedings were commenced against AAMI in respect of damage to the second vehicle, as it refused to pay Corpstreet Pty Ltd. AAMI then sought to recover money paid to Mr Drew on the basis that the insurance claim had been made fraudulently.
Mr Marinelli says that in late 2011, in the course of the civil proceedings arising from the car accident, AAMI investigator Mr Wintels obtained statements from Mr Hoctor, Mr Drew and Mr Hoctor’s girlfriend, Ms Anderson. He says it was in these statements that, for the first time, he was implicated in the fraudulent car accident claims. Mr Marinelli alleges Ms Anderson’s evidence was almost entirely dependent on information provided by Mr Hoctor, and that both Mr Hoctor and Mr Drew had motive to lie in their statements, which suggested and supported a finding of lack of reasonable and probable cause.
Mr Marinelli alleges that:
(a) until they were re-interviewed by Mr Wintels, the versions of the accident given by Mr Hoctor and Mr Drew did not implicate Mr Marinelli in any way;
(b) Mr Hoctor had been involved in two previous car accidents in which his car was written off, and a further accident in which his brother’s car was written off;
(c) Mr Hoctor had engaged in prior fraudulent claims without the involvement of Mr Marinelli;
(d) Senior Constable Douglas was aware of the inconsistent versions of events given by Mr Hoctor and Mr Drew, and of the significant history of insurance claims made by Mr Hoctor in relation to motor vehicle accidents in the years 2006 onwards;
(e) there was no apparent motive for Mr Marinelli to commit the crimes alleged against him, other than an allegation of receipt of $1,000, in respect of which there was no forensic evidence;
(f) Senior Constable Douglas made ‘no proper enquiries’ into Mr Hoctor’s past insurance history;
(g) Mr Marinelli was arrested by Senior Constable Douglas immediately prior to being interviewed and without a brief of evidence having been prepared, despite attending for the interview voluntarily;
(h) Senior Constable Douglas made ‘no proper enquiries’ concerning Mr Marinelli’s statement that he was being blackmailed to pay Mr Hoctor’s legal fees;
(i) no statement was obtained from listed prosecution witness Ms Paglamizia;
(j) the criminal proceedings were wrongly instituted by Senior Constable Douglas in the Magistrates’ Court despite the value of the charges obviously exceeding $100,000;
(k) phone records were obtained from Raylene Drew and Ms Anderson, but never formed part of the prosecution case, and were never provided to Mr Marinelli; and
(l) Senior Constable Douglas wrongly and improperly provided a copy of the police brief to Scott Douglas of Vicroads, and subsequently gave false evidence at the committal hearing in respect of the criminal proceedings.
Mr Marinelli alleges these matters suggest and support a finding of lack of reasonable and probable cause and, in combination, an inference of malice in relation to the institution and continuation of the criminal proceedings.
Mr Marinelli alleges that Senior Constable Douglas instituted and continued the criminal proceedings for an improper purpose because she gave in to pressure put on her by:
(a) Mr Wintels to institute and continue the criminal proceedings; and
(b) senior police officers who suspected links between Mr Marinelli and ‘bikie gangs’.
Mr Marinelli alleges that pressure from Mr Wintels is to be inferred from the following facts:
(a) the subject matter of the criminal charges was first raised by Mr Wintels with Senior Constable Douglas before any complaint had been made, which was improper and not in accordance with Victoria Police procedures;
(b) Mr Wintels had previously been involved in legal proceedings with and against Mr Marinelli;
(c) because Mr Marinelli had previously pursued claims against AAMI he was seen as a ‘commercial threat’;
(d) Mr Wintels involved himself in civil proceeding claims by and against Mr Hoctor and Mr Drew, strongly suggested to Mr Hoctor that he report his involvement and the involvement of others in the fraudulent insurance claim to police, and attended and engaged in informal discussions with Hoctor and Senior Constable Douglas in relation to Mr Hoctor giving evidence for the prosecution against Mr Marinelli before a formal record of interview was conducted with Mr Hoctor; and
(e) AAMI spent a significant amount on legal and investigation fees in connection with the events in question.
Mr Marinelli alleges he was interviewed by a police detective from a ‘bikie task force’ after the criminal charges were instituted, and was asked whether he was associated with any ‘bikie outlaws’, from which it should be inferred that senior police perceived he had links to ‘bikie gangs’ and exerted pressure on Senior Constable Douglas to institute and continue the criminal proceedings against him.
Mr Marinelli alleges Senior Constable Douglas’ knowledge of the matters in paragraphs [8] and [9] is to be inferred ‘from her numerous dealings and communications with [Mr] Wintels in connection with the criminal proceedings, and the fact she was a member of Victoria Police and had access to records concerning [Mr Marinelli]’, and had ‘made enquiries of the Echo Task Force to see whether Mr Marinelli had a connection with bikies’.
Mr Marinelli alleges that in mid-2013 he made an ethical complaint to Victoria Police concerning the handling of the criminal proceedings by Senior Constable Douglas, by reason of which she had a personal interest in continuing the criminal proceedings to seek vindication and maintain credibility, which supports an inference that continuation of the proceedings was actuated by malice.
The criminal proceedings were instituted by Senior Constable Douglas on 12 November 2012. A committal hearing occurred on 10 and 11 February and 28 April 2014. Mr Marinelli was committed to stand trial in the County Court on the three charges, commencing on 30 June 2015.
In around March 2015 the criminal proceedings were discontinued by the Director of Public Prosecutions.
Mode of trial
The mode of trial is governed by r 47.02 of the Supreme Court (General Civil Procedure) Rules 2015, which relevantly reads:
(1)A proceeding commenced by writ and founded on contract (including contract implied by law) or on tort (including a proceeding for damages for breach of statutory duty) shall be tried with a jury if—
(a)the plaintiff in the writ or the defendant by notice in writing to the plaintiff and to the Prothonotary within 10 days after the last appearance signifies that the plaintiff or the defendant (as the case requires) desires to have the proceeding so tried; and
(b)the prescribed fees for the purposes of section 24 of the Juries Act 2000 are paid.
(3)Notwithstanding any signification under paragraph (1), the Court may direct trial without a jury if in its opinion the proceeding should not in all the circumstances be tried before a jury.
When he commenced the proceeding, Mr Marinelli did not give notice for a jury trial. However, State of Victoria did signify its desire to have the proceeding tried with a jury by filing and serving a notice in accordance with the Rules. State of Victoria’s position has changed, and it now makes application pursuant to r 47.02(3) that the proceeding be tried by judge alone.
In Birti v SPI Electricity[1] and Matthews v SPI Electricity Pty Ltd[2] J Forrest J identified considerations relevant to the application of r 47.02(3):
[1][2011] VSC 566, [14]–[16] (‘Birti’).
[2](2012) 35 VR 643, [56] (‘Matthews’).
(a)Subject to compliance with the Rules of Court a party is entitled to seek trial by jury provided the claim is founded in contract or in tort.
(b)For that entitlement to be enlivened, it is necessary for the party seeking trial by jury to comply with the procedural requirements of r 47.02(1)(a) and (b); otherwise the trial will be before a judge sitting alone (absent an order of the Court to the contrary). Part 6 of the Juries Act 2000 (Vic) provides the statutory basis for the conduct of the trial by jury.
(c)Where a party has given notice regularly that a trial by jury is required that will be the prescribed mode of trial unless the Court is persuaded to dispense with the jury.
(d)Notwithstanding the right of a party to opt for a jury trial, there resides in the Court an overriding discretion to determine the mode of trial, regardless of the wishes of the parties.
(e)A court may at any stage of a proceeding direct a trial without a jury if it is satisfied that it should do so.
(f)As a general rule in this State (where civil juries are still the norm in tortious injury and defamation litigation), juries should be regarded as capable of dealing with issues of legal complexity as well as difficult issues of fact.
(g)The onus in persuading a court to dispense with a jury trial rests upon the party making that application. A court will not lightly make such an order, given the entitlement of the other party to seek trial by jury. There must be some special reason to do so or, to put it another way, a party should not be deprived of such an entitlement in the absence of good cause.
(h)Even if it is established that there will be a substantial saving in time and cost in a trial by judge alone that is not necessarily sufficient cause to deprive a party of its prima facie entitlement to trial by jury. Notwithstanding that trial by judge alone may take less time, there are countervailing advantages in a trial by jury such as the promotion of settlement and finality and, in some cases, savings of court time
(i)The considerations which may influence a court to dispense with a jury trial are unfettered; the discretion may be exercised where it is warranted by the dictates of justice.
(j)Subject to the statement of general principle set out in (i), in determining whether to accede to an application to dispense with the jury, the following matters may be relevant
(i)the complexity of the factual matters that the jury will need to consider
(ii)the complexity of the legal issues relating to liability, particularly where the claim involves consideration of multiple causes of action and multiple defendants
(iii)the complexity of the jury’s task in relation to the assessment of damages
(iv)the potential duration of the trial (although this, of itself, could never be the determining factor); and
(v)the stage at which the proceeding or trial has reached.
(k)A decision as to the mode of trial (by a judge alone or by jury) cannot of itself amount to a miscarriage of justice as whichever form is a trial according to law.
Submissions
State of Victoria
In a written outline, State of Victoria submitted that because it gave notice in accordance with r 47.02(1)(a) of the Rules, but had since reconsidered, the Court ought comply with its wishes and dispense with the jury. It argued that, because Mr Marinelli did not comply with the procedural requirement for notification of the desire for a jury trial he was precluded from opposing the application. At the hearing, correctly in my view, State of Victoria did not press these submissions, but argued that because it was the party which gave notice pursuant to r 47.02(1)(a), it did not bear the onus of convincing the Court to dispense with a jury. Second, State of Victoria submitted, the trial involves a complex web of facts upon which a jury would be asked to draw inferences as to malice and lack of reasonable and probable cause on the part of Senior Constable Douglas. Mr Marinelli will seek to adduce evidence of related prosecutions against Mr Hoctor and Mr Drew, the investigation by AAMI for insurance fraud, the police complaint to Professional Standards Command by Mr Marinelli concerning Senior Constable Douglas’ handling of the criminal proceedings, and the Magistrates’ Court committal hearing. It was submitted that the level of factual complexity is clearly identified in paragraph 6 of the amended statement of claim which consists of 63 paragraphs of allegations and particulars. Third, the division of labour between the jury and the trial judge adds a further significant element of complexity, requiring that the jury consider the complex facts and make determinations upon which a trial judge considers whether reasonable and probable cause is made out. Fourth, the jury would be required to determine whether Senior Constable Douglas acted with malice. Fifth, assessment of pecuniary damages involves consideration of rival accounting expert evidence, analysis of detailed business and taxation records, and consideration of the likely future profitability of the panel beating trade generally, and is therefore a very complex task. Sixth, trial by judge alone will be shorter and less expensive. State of Victoria submitted that in combination these factors militate against a jury trial. State of Victoria confirmed its intention not to pay jury fees payable under r 47.03 of the Rules and s 24 of the Juries Act 2000.
Mr Marinelli
Mr Marinelli submitted the onus of persuading the Court to dispense with a jury trial rested on State of Victoria, and that such an order should not be made lightly. Reliance was placed on the ruling in Gunns Limited v Marr (No 5)[3] in which J Forrest J observed:
This State has a long and proud tradition of claims in tort (particularly in injury and defamation cases) being tried by juries (in this Court and in the County Court by juries of six). Judges, rightly, are reluctant to dispense with a mode of trial chosen by a litigant that ensures that the invaluable commonsense and knowledge of six members of the community of life outside and well away from 210 William Street, Melbourne is brought to bear upon a dispute between fellow citizens.
[3][2009] VSC 284, [18] (‘Gunns’).
Mr Marinelli submitted there were a number of reasons why the court should not conclude that the proceeding was too complex for determination by a jury. First, by contrast to proceedings such as Gunns and Matthews, the single cause of action of malicious prosecution was being agitated by Mr Marinelli in the proceeding against State of Victoria. Second, while the claim involved a number of material facts which it was alleged supported the proposition that Senior Constable Douglas acted maliciously and without reasonable and probable cause, that was not unusual in a malicious prosecution case. The material facts alleged can be sensibly understood as follows:
(a) the absence of probative and corroborative evidence in the police brief;
(b) the lack of any or proper enquiries by Senior Constable Douglas;
(c) the role and involvement of AAMI and Mr Wintels in the institution of the criminal proceedings, and the relationship of Mr Wintels with the senior police officer;
(d) the role and involvement of superior police officers in the institution and continuation of the criminal proceedings; and
(e) dealings between Leading Constable Vandenbosch, Senior Constable Douglas, and her supervising officer.
It was submitted these are factual matters with which a jury can properly deal.
Third, assessment of the plaintiff’s claim for pecuniary damages is not unduly complex. Fourth, the length and cost of a jury trial is not a sufficient reason to dispense with the jury. Fifth, the trial estimate of 10 sitting days is not unduly burdensome for a jury. Sixth, non-payment of jury fees by State of Victoria is not a reason to dispense with the jury, as they can and will be paid by Mr Marinelli.
Analysis
Mr Marinelli did not signify in the writ a desire for trial by jury. Because State of Victoria gave notice pursuant to r 47.02(1)(a), it is the party with a prima facie right to a jury trial. State of Victoria no longer wishes to exercise that right. I agree with its oral submissions that in those circumstances it does not bear an onus of persuading the Court to dispense with a jury.
Rule 47.02(3) permits the Court to exercise a discretion to direct trial without a jury. Considerations relevant to the exercise of that unfettered discretion include those identified by J Forrest J in Birti and Matthews. The primary consideration on which State of Victoria relied as justifying dispensing with a jury is the complex way in which the element of malice is pleaded. The material facts upon which Mr Marinelli relies to establish that element are set out in paragraph 6 of the amended statement of claim. The pleading is, with respect, inelegant. I have attempted to summarise the facts alleged in paragraphs [4] to [11] of these reasons. State of Victoria argues that a simple summary of the chronology of events obscures the layered complexity of facts and inferences upon which the plaintiff relies to establish the element of malice.
Juries have traditionally been viewed as having the capacity to deal with complex matters. In Victoria v Psaila,[4] Brooking JA observed:
His Honour erred in failing to recognise, as the law has always done, that juries are, generally speaking, eminently satisfactory tribunals for the determination of issues of fact, able to cope with directions of law and issues of fact of considerably greater complexity than those which would have been given or have arisen in the present case.
[4][1999] VSCA 193, [24], see also Gunns [16] and Matthews [69].
The factual complexity of this case is not compounded by complexity of legal issues. One cause of action is pleaded against one defendant. The elements of the cause of action are not in doubt. The directions to a jury are unlikely to be particularly complex, and the number of questions to be answered by them will not be great.
State of Victoria points to the fact that Mr Marinelli seeks to rely, without sufficient particularisation, on the whole of the reasonably voluminous police brief in the criminal proceedings, and the whole of the transcript of the four-day committal hearing. In my view that is an argument, in the first instance, for provision of proper particulars. Pursuant to orders already made, and comments I made during the hearing of this application, that process is underway.
In my view a jury is very well suited to deciding a claim of malicious prosecution by a police officer, and, in doing so, to reach necessary conclusions as to the actions and motivations of the various individuals involved in the events under consideration.
State of Victoria also relies on the complexity associated with consideration of business and taxation records, and rival accounting expert evidence. I have read the reports of experts, Mr Falkingham for Mr Marinelli and Ms Wright for State of Victoria, and I have looked at Mr Marinelli’s tax returns and the financial records of Ultra Finish. The financial and taxation records are not complex. Mr Falkingham calculates the loss suffered by Mr Marinelli on the basis of what he concludes is the current market rate salary for a person in Mr Marinelli’s position. Ms Wright expresses the opinion that it is not possible on the material provided to quantify any loss suffered by Mr Marinelli, and criticises various aspects of Mr Falkingham’s report. The evidence relevant to consideration of the loss claimed by Mr Marinelli is not particularly complex.
Questions to be determined in relation to liability and quantum are, in my view, within the capacity of a jury.
State of Victoria submitted trial by judge alone will be shorter and less expensive, and the resulting efficiency weighs in favour of that mode of trial. I disagree. As a jury trial, this proceeding has a current estimate of 10 days. It was indicated during discussion that the trial may finish well within that estimate. Trial by judge alone might, at most, save one or two days of sitting time. Against the modest potential saving associated with trial by judge alone should be weighed the advantages of proceeding with a jury, which include answers being given by the jury at the end of the trial, and the promotion of certainty.
Conclusion
The application by State of Victoria to dispense with a jury trial will be dismissed.
Pursuant to an earlier order, the plaintiff is to provide further particulars of matters alleged in paragraph 6 of the amended statement of claim. It is possible those particulars, and evidence led at trial, will demonstrate a greater degree of complexity of issues to be determined than is currently evident. Whether renewal of an application to dispense with a jury trial may at some stage be justified remains to be seen. The application by State of Victoria in part reflects the need, at this late stage, for further particulars to be provided by Mr Marinelli of the elements of malice and reasonable and probable cause. In my view it is appropriate that costs of this application be reserved until Mr Marinelli’s pleadings are finally settled and the case to be met by State of Victoria is clear.
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