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Mullett v Nixon

Mullett v Nixon

Case [2022] VSCA 174 23 August 2022

Misfeasance in Public Office

Malicious Prosecution

Discovery & Disclosure

Limitation Periods

Abuse of Process

Tort Law

Civil Litigation & Procedure

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCI 2021 0041

PAUL REDMOND MULLETT	Applicant
v
CHRISTINE NIXON & ORS (ACCORDING TO THE ATTACHED SCHEDULE)	Respondents

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JUDGES:	FERGUSON CJ, BEACH and McLEISH JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	8 August 2022
DATE OF JUDGMENT:	23 August 2022
MEDIUM NEUTRAL CITATION:	[2022] VSCA 174
JUDGMENT APPEALED FROM:	Mullett v Nixon [2016] VSC 512 (T Forrest J) Mullett v Nixon [2015] VSC 727 (J Forrest J)

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TORTS – Misfeasance in public office – Malicious prosecution – Application for extension of time within which to seek leave to appeal – Application for leave to adduce fresh evidence – Whether suspension of applicant from Police Force done maliciously – Whether respondents acted maliciously in initiating and maintaining criminal proceedings against applicant – Whether respondents failed to discover and disclose critical documents – Whether new evidence, if available at trial, gives rise to possibility of opposite result – Applicant’s proposed ground of appeal not made out – Futile to grant extension of time – Application for extension of time refused.

PRACTICE AND PROCEDURE – Discovery – Obligations of discovery – Relevant documents – Critical documents – Claims that respondents breached discovery, disclosure and production obligations not made out – Supreme Court (General Civil Procedure) Rules 2015, r 29.01.1(3) – Civil Procedure Act 2010, s 26(1).

EVIDENCE – Fresh evidence – Proceeding dismissed at trial – Whether evidence sought to be relied upon gives rise to possibility of opposite result – No breach of discovery obligations – Evidence not giving rise to possibility of opposite result – Applicant not granted leave to adduce fresh evidence – Commonwealth Bank of Australia v Quade (1991) 178 CLR 134 applied.

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Counsel
Applicant:		Ms G L Schoff QC with Mr E H R Kelly
First, Second and Third Respondents:		Mr R Knowles QC with Mr D P McCredden
Fourth and Fifth Respondents:		Dr I R L Freckelton QC with Mr S G Frauenfelder
Solicitors
Applicant:	Stephens Lawyers & Consultants
First, Second and Third Respondents:	Victorian Government Solicitor’s Office
Fourth and Fifth Respondents:	Corrs Chambers Westgarth

FERGUSON CJ
BEACH JA
MCLEISH JA:

Paul Mullett (‘the applicant’) was a senior sergeant of the Victorian police force and the Secretary of the Police Association. In November 2007, the then Chief Commissioner, Christine Nixon (‘the first respondent’) suspended the applicant, with pay, from duty as a Victorian police officer (‘the first suspension’). In July 2008, a superintendent of Victoria Police, Wayne Taylor (‘the third respondent’) laid five charges against the applicant: one charge of attempting to pervert the course of justice; two charges of perjury; and two alternative charges of wilfully making a statement known to be false or misleading in a material particular.[1] Prior to filing the charges, a deputy commissioner of Victoria Police, Kieran Walshe (‘the second respondent’) reviewed the brief and authorised the charges. On the same day that the charges were laid, the applicant was suspended without pay (‘the second suspension’).
[1]Contrary to s 86K(1)(c)…

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.

Continue reading Mullett v Nixon

Details

AGLC: Paul Redmond Mullett v Christine Nixon [2022] VSCA 174
Case: [2022] VSCA 174
Decision Date: 23 August 2022

CaseChat Overview and Summary

The applicant, Mullett, sought an extension of time within which to seek leave to appeal against a decision that dismissed his claim for damages against the respondents, Nixon and others. The claim arose from allegations that the respondents maliciously prosecuted Mullett, and that the suspension of his employment with the Police Force was done maliciously. Mullett sought to adduce fresh evidence, including documents he claimed the respondents failed to discover and disclose, and sought to appeal on the basis that this evidence would give rise to a possibility of an opposite result.

The central issues before the court were whether the applicant could be granted an extension of time to seek leave to appeal, and whether he could be granted leave to adduce fresh evidence. The court was required to consider whether the new evidence sought to be introduced would give rise to a possibility of an opposite result, and whether there had been a breach of the discovery, disclosure, and production obligations.

The court found that the proposed grounds of appeal were not made out and that the evidence sought to be introduced did not give rise to a possibility of an opposite result. The court found that there had been no breach of the discovery, disclosure, and production obligations. The court applied Commonwealth Bank of Australia v Quade and dismissed the application for an extension of time and for leave to adduce fresh evidence. The court held that it was futile to grant an extension of time and that the application should be refused.

The court made no order as to costs.

Orders