Midson v State of Victoria - [2020] VSC 624

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

MAJOR TORTS LIST

S ECI 2018 02070

JOHN MIDSON	First Plaintiff
- and -
MAGDALENA MIDSON	Second Plaintiff
v
STATE OF VICTORIA	Defendant

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JUDGE:	Forbes J
WHERE HELD:	Melbourne
DATE OF HEARING:	21 September 2020
DATE OF RULING:	25 September 2020
CASE MAY BE CITED AS:	Midson & Anor v State of Victoria
MEDIUM NEUTRAL CITATION:	[2020] VSC 624

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PRACTICE AND PROCEDURE - Trial delayed due to Victorian Stage 4 Covid-19 restrictions - Whether trial should be split for determination of liability and damages separately – Claim for psychiatric injuries – No clear line of demarcation - Witnesses called to give evidence twice – Unfairness - No real saving of court time by splitting trial – Defendant resisted discovery of document on ground of relevance – Work diary discoverable - Murphy v Victoria & Anor (2015) 45 VR 119 - Hohv Ying Mui Pty Ltd [2019] VSCA 203 - Perre v Apand Pty Ltd [1999] 198 CLR 180 – Supreme Court (General Civil Procedure) Rules 2015 rr 29, 47.04.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr T. Tobin SC and Mr P. Hamilton	Footner Wren Legal
For the Defendant	Mr S. Hay SC and Mr R. Gippp	Victorian Government Solicitor’s Office

HER HONOUR:

The trial of this matter, originally scheduled for 31 August 2020 has been delayed by the Stage 4 Covid-19 restrictions. While the parties were able to accommodate a remote hearing under the Stage 3 restrictions with witness and practitioner access to professional addresses, the increase to Stage 4 led to a number of practical difficulties. The trial therefore was relisted for 12 October, anticipating a return to Stage 3 by that time. However, the difficulties that led to the vacation of the August trial date remain for a trial now commencing on 12 October 2020.

At directions on 11 August 2020 the defendant made an application to split the trial so that liability be determined in one hearing and there be a later hearing if required to determine damages. At that time, given the vacation of the trial date, it was not necessary to rule on the application. It was pressed again before me at the directions hearing on 21 September 2020. For the reasons that follow, I will not order that the liability issues in the trial be heard and determined separately.

The first plaintiff Mr Midson was a serving police officer. The second plaintiff is his wife. They seek damages for psychiatric injuries. Their proceeding alleges unlawful arrest and detention. In the case of the first plaintiff arrests were made on 7 September 2016 and 5 May 2017, and the second plaintiff was arrested on 24 November 2016. They also allege trespass to land and goods arising from the execution of a warrant at their home on 5 May 2017 and for malicious prosecution in respect of criminal charges brought in respect of events occurring on various dates…

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: [2020] VSC 624
Decision Date: 25 September 2020

CaseChat Overview and Summary

Midson brought an action against the State of Victoria, claiming damages for psychiatric injuries he allegedly suffered as a result of the defendant's negligence. The trial was scheduled to take place during the Victorian Stage 4 Covid-19 restrictions, which resulted in a delay. The plaintiff argued for the trial to be split into two parts, first determining liability and then damages, to reduce the number of times witnesses would need to give evidence. The defendant opposed this proposal, and the court had to decide whether such a division was appropriate, considering the nature of the claims and the impact on witnesses.

The court considered several factors, including the nature of the psychiatric injury claims and the difficulty in determining a clear line of demarcation between liability and damages. It noted that splitting the trial would require witnesses to testify twice, which could be distressing for them, particularly in the context of the ongoing pandemic. Additionally, the court found that splitting the trial would not result in a real saving of court time, as the same witnesses would still need to be called to give evidence on both parts of the trial. The court also addressed the defendant's resistance to discovery of a work diary, ruling that it was discoverable as it was relevant to the case.

The court held that the trial should not be split, as it would not achieve the intended purpose of reducing the burden on witnesses, and it would not result in a significant saving of court time. The court found that the work diary in question was discoverable as it was relevant to the case, and the defendant's resistance to its production was unjustified. The court also noted that the discovery of documents is an important part of the civil justice system, and parties should not be allowed to resist the disclosure of relevant documents on vague or unsubstantiated grounds.

In light of the above, the court ruled that the trial would proceed as scheduled, without a division into liability and damages. The court also ordered the defendant to produce the work diary in question, as it was relevant to the case. The plaintiff's claim for psychiatric injuries would proceed to trial, and the defendant would be required to provide the requested document to aid in the preparation of the case. The court emphasised the importance of the civil justice system functioning effectively, even in the context of the ongoing pandemic, and the need for parties to cooperate in the discovery process.

Orders