Midson v State of Victoria
[2020] VSC 131
•20 March 2020
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
MAJOR TORTS LIST
S ECI 2018 02070
| JOHN MIDSON | First Plaintiff |
| MAGDALENA MIDSON | Second Plaintiff |
| v | |
| STATE OF VICTORIA | Defendant |
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JUDGE: | John Dixon J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | On the papers |
DATE OF RULING: | 20 March 2020 |
CASE MAY BE CITED AS: | Midson v State of Victoria |
MEDIUM NEUTRAL CITATION: | [2020] VSC 131 |
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PRACTICE AND PROCEDURE – Further and better particulars of statement of claim – Malicious prosecution – Whether prosecutions initiated or continued without reasonable probable cause and actuated by malice – Particulars struck out as inadequate to not prejudice, embarrass or delay a fair trial
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | This application was determined on the papers, including written submissions from counsel for the parties. | |
| For the Defendant | ||
HIS HONOUR:
In this proceeding, the plaintiffs claim damages, including exemplary damages, against the State of Victoria in respect of police torts of unlawful detention, unlawful assault and malicious prosecution.
On 26 February 2020, Clayton JR ordered that by 2 March 2020, the plaintiffs file and serve further and better particulars of paragraphs 15, 18 and 20 of their statement of claim. In substance, first, the plaintiffs were ordered to identify the servants or agents of the defendant who were active participants in the malicious prosecution causes of action alleged by the plaintiffs.
Secondly, each fact, matter, circumstance or thing relied on to contend that proceedings were initiated or continued without reasonable and probable cause by Acting Assistant Commissioner Graham Kent or other police offers to be identified in the further particulars.
Thirdly, each fact, matter, circumstance or thing relied on to contend that Acting AC Kent and relevant servants or agents identified were actuated by malice.
The plaintiffs did not contest their substantive obligation to provide these particulars and the scope of the dispute before the Judicial Registrar appears to have related to case management issues.
A response providing further and better particulars was filed by the plaintiffs one day after the time limited by Clayton JR’s order, but no point is taken in that regard. Rather, the defendant’s summons seeks to strike out the response and require a further and better response contending that the plaintiffs’ further and better particulars remain inadequate.
Having regard to the restrictions being imposed by reference to the COVID-19 pandemic, the parties agreed that the issues raised by the defendant’s summons could be resolved on the papers with a telephone conference if considered necessary. I have not found it necessary to convene a telephone conference or seek any supplementary written submissions.
Following the Judicial Registrar’s order, the defendant’s solicitors referred the plaintiffs’ solicitors to Marinelli v State of Victoria,[1] suggesting that anything less than precise identification of the manner in which the plaintiffs put their allegations would not only prejudice the defendant at trial, but would cause the plaintiffs to fall short of the requisite standard of proof.
[1][2019] VSC 557, [20].
Following receipt of the plaintiffs’ response, the defendant again corresponded with the plaintiffs objecting to that response and contending that the further particulars:
(a) considerably broadened the issues in dispute, expanding the number of serving and former police officers against whom allegations were made, with serious allegations of malice made against several police members;
(b) appeared to attempt to overcome a lack of evidence by suggesting that each and every police member who had any involvement whatsoever with the investigation was ‘acting in concert’ as part of a ‘conspiracy’ intended to coerce the first plaintiff into divulging information about other police members and or force his resignation from the police force.
An example was provided by reference to an allegation in the further particulars identifying former Assistant Commissioner Guerin as falling within the scope of the plaintiffs’ allegations. The manner in which the further particulars are expressed does not identify AC Guerin’s conduct or omissions, or provide proper particulars of his state of mind. The defendant contended that this example was one of many and that the defendant is not able to understand the conduct that is alleged individually against each of the named members personally engaged in each relevant allegation. Yet, the general and high level contentions give rise to the allegations that that member acted maliciously and in the absence of reasonable and probable cause.
The defendant further contended that a proper estimate for the length of the trial, set down on an estimate of 15 days, now appeared to be at least 25 to 30 days and demanded that the plaintiffs provide further or revised particulars in respect of each of the 16 serving and former police members named in the further and better particulars that describes the precise conduct that they assert each and every one of those members engaged in that gave rise to allegations of malice and allegations of an absence of reasonable and probable cause.
The defendant’s submission identified the inadequacy in the plaintiffs’ response to be a lack of sufficient particulars of the lack of reasonable and probable cause and malice in relation to the 11 identified police officers that are now claimed to have initiated or continued the prosecution of disciplinary and criminal charges against the first plaintiff.
Further, the document did not provide proper particulars of malice as alleged against the second plaintiff.
In their submission, the plaintiffs contended that they had identified the individuals who were involved in the conduct, the conduct relied upon and what that conduct was and to show that there was no reasonable cause for the actions that were taken and to establish the circumstance and framework in which it can be inferred that the actions were taken for a purpose other than the proper administration of justice as against the plaintiffs which of course constitutes the malice.
In substance, the plaintiffs submitted that subject matter of the request for further and better particulars essentially concern state of mind that would be proved at trial by inferences from conduct. They contended that the further particulars identified clearly to the defendant, the persons involved and how it is alleged, by reason of their command status, location and involvement, that they were acting without good cause and inferentially for a proper purpose.
On a reasonable reading of the pleading in conjunction with these further particulars, I am unable to accept this submission.
As noted, the parties identified in correspondence and in their submissions the recent decision of Keogh J at trial in Marinelli v State of Victoria.[2] I am satisfied that careful analysis of Keogh J’s decision will provide ample guidance to the proper scope of particulars that must necessarily be provided. It is not necessary that I provide such guidance in these reasons.
[2][2019] VSC 557.
I am satisfied that the defendant is correct in its assertion that the particulars merely make broad assertions as to the alleged defects in the evidence relied on for the disciplinary charges. What must necessarily be provided is the conduct of each of the officers whom the plaintiffs contend initiated or continued the prosecution of the disciplinary charges without reasonable and probable cause. To the extent that the plaintiffs intend to prove a want of reasonable and probable cause by inference, then they must identify each act, fact, matter, circumstance or thing from which that inference may properly be drawn. In particular, the particulars provided under sub-paragraph (a)(ii) are mostly in the nature of conclusionary contentions. These particulars fail to identify specific incidents, or circumstances, that will be in dispute at trial about which the defendant will need to be in a position to adduce relevant evidence in order to fairly advance its defence.
The particulars of malice in respect of the disciplinary charges are also conclusions postulated at a very high level of generality. The conclusion that is contended for is that each of the police officers was ‘acting in concert and subject to the control and direction in the main from officers of the Professional Standards Command Unit.’ The plaintiffs have impermissibly introduced allegations of conspiracy that cannot be found in the pleading. It is said that the purpose of this conspiracy is to put pressure upon the first plaintiff to give a statement implicating other officers even though he had no knowledge of the conduct of those officers, and that the police members identified by the plaintiffs continue the prosecution of the charges to obtain leverage against the first plaintiff’s claim that their conduct constituted a false arrest. A further purpose alleged is that those police members were implementing AC Guerin’s determination to force the plaintiff’s resignation from the police force by financial pressure arising from the prosecution of charges against him. If the plaintiffs wish to amend the substantive basis of the claims being made in the proceeding to allege conspiracy, the proper process is to seek leave to amend the statement of claim.
This example is sufficient to show that the plaintiffs by these particulars significantly reconstitute the allegations being made against the defendant. By reference to this example, I am satisfied that the further particulars are an abuse of the process of the court and may prejudice, embarrass or delay the fair trial of the proceeding and should be struck out.
The defendant contends, in my view correctly, that similar deficiencies can be identified in the further particulars provided of the allegation of malicious prosecution constituted by the charges brought by Detective Sergeant Latimer against the first plaintiff alleged in paragraph 16 of the statement of claim. Again, the particulars refer to unspecified conduct of additional police officers, including an Inspector Mick Martin, but failed to identify the conduct of each of those officers which they will contend establishes that they initiated or continued the prosecution of criminal charges without reasonable and probable cause. Further, the conduct of each of those officers that will be relied upon to establish that each officer was actuated by malice is not identified.
I am satisfied that the use of the further particulars to expand the allegations being made by the plaintiffs, and their failure to identify the relevant material circumstances that will be the subject of factual dispute at trial and from which the plaintiffs apparently propose to contend for inferences necessary to be drawn to establish their claims, means that these further particulars are likely to prejudice, embarrass or delay the fair trial of the proceeding.
The defendant correctly contends that similar difficulties can be identified with the allegations that are further particularised in respect of the second plaintiff’s claims, particularly in respect of the allegations that each of the named police members personally engaged in conduct that was actuated by malice.
For these reasons, the further and better particulars filed by the plaintiffs on 3 March 2020 in purported compliance with the order of Clayton JR made 26 February 2020 are struck out. I will further order that the plaintiffs provide further and better particulars of paragraphs 15(a), (c) and (d), 18 and 20 of the statement of claim in identified respects.
I see no reason why costs should not follow the event and I will further order that the plaintiffs pay the defendant’s costs of and incidental to the summons filed 16 March 2020.
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