| 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)…
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- AGLC
- Paul Redmond Mullett v Christine Nixon [2022] VSCA 174
- Case
- [2022] VSCA 174
- Decision Date
CaseChat Overview and Summary
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
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
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Ratio Decidendi
Legal Principle Established
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