Mullett v Nixon
[2015] VSC 727
•16 December 2015
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
S CI 2013 1520
| PAUL REDMOND MULLETT | Plaintiff |
| v | |
| CHRISTINE NIXON | First Defendant |
| and | |
| KIERAN WALSHE | Second Defendant |
| and | |
| WAYNE TAYLOR | Third Defendant |
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JUDGE: | J FORREST J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 7 December 2015 |
DATE OF RULING: | 16 December 2015 |
CASE MAY BE CITED AS: | Mullett v Nixon & Ors |
MEDIUM NEUTRAL CITATION: | [2015] VSC 727 |
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DISCOVERY – Application to examine deponent of affidavit of documents under s 57 of the Civil Procedure Act 2010 (Vic) – Application for specific discovery under the Supreme Court (General Civil Procedure) Rules 2015 – Application refused – Interrogatories ordered.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A Panna QC | Stephens Lawyers & Consultants |
| For the Defendant | Ms R Orr QC with Mr D McCredden | Victorian Government Solicitor’s Office |
HIS HONOUR:
Introduction
Paul Mullett was a police officer and secretary of the Police Association. He has sued the former Chief Commissioner of Victoria Police, Christine Nixon, Deputy Commissioner Kieran Walshe and Detective Superintendent Wayne Taylor, for malicious prosecution and misfeasance in public office.
In essence, Mr Mullett’s claim is that he was wrongfully suspended by Ms Nixon in November 2007, and that his prosecution in July 2008 for perjury and perverting the course of justice (initiated by Mr Taylor allegedly at the direction of Ms Nixon and Mr Walshe) had no reasonable basis.
A major dispute has arisen over the adequacy of the defendants’ discovery (and in particular that of Ms Nixon) and must be resolved. The trial is now set down for 2 May 2016.
Mr Mullett’s application
The summons filed by Mr Mullett originally sought seven orders. By the time of the hearing of the application, most of these had fallen away, and there were two substantive orders sought, namely that:
(a)Ms Nixon should be cross-examined on the adequacy of her discovery pursuant to s 57 of the Civil Procedure Act 2010 (Vic) (CPA); and
(b)Ms Nixon, Mr Walshe and Mr Taylor should provide specific discovery of certain identified classes of documents.
Relevant principles
Malicious prosecution and misfeasance in public office
To understand the purpose of the application made by Mr Mullett, it is necessary to summarise the elements of each tort.
For malicious prosecution, they are:
(a) a prosecution must have been instituted ‘without reasonable and probable cause’; and
(b) the defendant must have acted with malice in bringing or maintaining the prosecution.[1]
[1]Beckett v New South Wales (2013) 248 CLR 432, 438 [4]-[5].
For misfeasance in public office, they are:
(a) the defendant’s exercise of power must have been invalid or unlawful; and
(b) the exercise of power must have been accompanied by one or other of the following:
(i) an exercise of power knowing that he or she was acting in excess of power and intending to cause harm to the plaintiff;
(ii) reckless indifference as to whether the act was beyond power or whether it would cause harm to the plaintiff; or
(iii) reckless indifference as to whether the act was beyond power and there was a foreseeable risk of harm to the plaintiff.[2]
[2]Sanders v Snell (1998) 196 CLR 329; Poynder v Kent [2008] VSCA 245, [74].
Therefore, a central issue at the trial will be each defendant’s knowledge and motivation in relation to decisions to:
(a) commence an investigation of Mr Mullett in September 2007;
(b) suspend Mr Mullett from Victoria Police in 15 November 2007 (and then continue the suspension in February 2008); and
(c) charge Mr Mullett in July 2008 with perjury and perverting the course of justice.
Although the continuation of the suspension of Mr Mullett is not mentioned in the pleadings, it is relevant to a real issue at the trial.
Discovery
Prior to 2010, discovery was regulated by the Supreme Court (General Civil Procedure) Rules 2005[3] (and in particular Order 29). Whilst that provision remains relevant in any discovery contest, the provisions of the CPA (which contain a number of references to discovery) have altered the discovery obligations significantly.
[3]Now the Supreme Court (General Civil Procedure) Rules 2015 (Rules).
Contrary to the implied suggestion in Mr Mullett’s written submissions, the obligations on a party to make discovery have narrowed rather than expanded. This was for good purpose. Satellite discovery fights and the costs of discovery have become a blight on the legal profession – in terms of cost, delay and reputation.[4]
[4]See Liesfield v SPI Electricity Pty Ltd and Others (Ruling No 1) [2013] VSC 364 [21]-[30] and [37], [57].
The Cashman report of 2008,[5] and the subsequent enactment of the CPA in 2010 (and a number of amendments), have required this Court, and other courts in Victoria, to focus on the real issues in dispute and to discard any broad based discovery notions based upon the Peruvian Guano ‘train of inquiry’ test.[6] Now, discovery is limited. Under s 26 of the CPA, the documents to be discovered by a party are documents ‘critical to the resolution of the dispute’. Under r 29.01.1(3) of the Rules, discovery, although wider than under the CPA, is limited to:
[5]Civil Justice Review report prepared by the Victorian Law Reform Commission on civil procedure reform, which was tabled in the Victorian Parliament on 28 May 2008.
[6]The Compagnie Financiere et Commerciale du Pacifique v The Peruvian Guano Company (1882) 11 QBD 55.
(a) documents upon which the party relies;
(b) documents that adversely affect the party’s own case;
(c) documents that adversely affect another party’s case; and
(d) documents that support another party’s case.
The defendants’ discovery to date
Neither Ms Nixon nor Mr Walshe is a serving member of Victoria Police. Each has been retired for a number of years. Mr Taylor now works in a different area to that in which he was deployed in 2008 and 2009.
Ms Nixon and Mr Walshe state that they do not have any relevant documents (apart from Mr Walshe’s diary). Neither has any right to obtain documents that they may have utilised in 2008 and 2009 in making the decisions that form the basis of Mr Mullett’s claim.
Somewhat surprisingly, Mr Taylor asserts that he is in the same boat, and has no ability to access documents that he may have created or used in 2008 and 2009, notwithstanding that he is still a serving member of Victoria Police.
The fact that the three defendants are no longer in possession of particular documents does not, of course, relieve them of their discovery obligations. They are still obliged to make discovery of documents that may have been in their possession and are relevant to the issues in this proceeding, in the sense stipulated by O 29 (see [12] above).
To this end, the Victorian Government Solicitor’s Office (VGSO) (which acts on behalf of each of the defendants) issued a series of subpoenas addressed to various entities which (as it transpired) had documents relevant to the decision making process, as follows:
(a) the current Chief Commissioner of Police;
(b) Independent Broad-based Anti-corruption Commission (IBAC) (as the successor of the Office of Police Integrity (OPI)); and
(c) the Office of Public Prosecutions (OPP).
In addition, there were requests made of Victoria Police, the Magistrates’ Court of Victoria, the Legislative Assembly and the Victorian Government Reporting Service for the production of documents.
These subpoenas and requests produced a large number of documents that were reviewed by each of the defendants. Each provided discovery by way of an affidavit of documents in December 2014. The affidavit of each defendant identifies the same 197 documents, which include diaries maintained by Messrs Walshe and Taylor, of which redacted extracts have been provided. Ms Nixon’s affidavit does not disclose her personal diary; I was told by her counsel that she did not use a diary in her day-to-day work.
After the provision of the affidavits of documents, the parties engaged in relatively civilised paper warfare. Ultimately, supplementary affidavits were sworn by Mr Walshe and Mr Taylor on 23 November 2015. No further affidavit was sworn by Ms Nixon.
The evidence on this application
In addition to the five affidavits of documents, Katarina Klaric, the solicitor for Mr Mullett, filed an affidavit (sworn 22 October 2015) in support of the provision of further discovery and cross-examination of Ms Nixon.
In response, Rose Singleton of the VGSO filed two affidavits dated 23 November 2015 and 7 December 2015.
Key dates and events relevant to this application
It is not necessary to go into any detail about the factual allegations in the case, save to identify some key dates and events, as pleaded by Mr Mullett in his statement of claim of 26 March 2013:
(a) On 19 October, 14 November and 15 November 2007, Mr Mullett gave evidence before the Honourable Murray Wilcox QC (who had been delegated by the Director of the OPI to conduct an investigation into certain activities of the Assistant Commissioner Noel Ashby).
(b) On 15 November 2007, Ms Nixon suspended Mr Mullett from his employment with Victoria Police on full pay.
(c) On 11 February 2008, Mr Mullett’s suspension was continued by Ms Nixon (not pleaded).
(d) On 29 July 2008, five charges were filed against Mr Mullett. The charges laid by Mr Taylor were as follows:
(iv) one count of perverting the course of justice;
(v) two counts of perjury arising out of his evidence before Mr Wilcox QC; and
(vi) two counts of wilfully making a statement which is false or misleading (or attempting to mislead) in a material particular.
Should Ms Nixon be cross-examined about the adequacy of her discovery?
Section 57 of the CPA reads as follows:
Cross-examination regarding discovery obligations
Unless a court orders otherwise, any party to a civil proceeding may cross-examine or seek leave to conduct an oral examination of the deponent of an affidavit of documents prepared by or on behalf of any other party to that proceeding if there is a reasonable basis for the belief that the other party may be—
(a) misinterpreting the party’s discovery obligations; or
(b) failing to disclose discoverable documents.
It is apparent, from the terms of the section, that a necessary precondition for an order for an oral examination of a deponent is for the Court to be satisfied that there is a reasonable basis for believing that Ms Nixon either (a) misinterpreted her discovery obligations or (b) has failed to disclose discoverable documents.
As to the first ground (in sub-s (a)), I can see no basis for it. As Ms Nixon’s counsel pointed out, she is legally represented by an experienced common law solicitor who clearly has a cogent understanding of the obligations of discovery. Moreover, it can be readily assumed that Ms Nixon has, through her own position in the police force at various times, an astute awareness of the disclosure obligations of the prosecution of criminal cases. All in all, there is no reasonable basis for supposing that Ms Nixon has misinterpreted her discovery obligations.
As to the second ground, determining whether there is inadequacy in discovery initially involved consideration of each of the classes (some 50 or more) of documents identified by Ms Klaric in her affidavit. However, in the written submissions on the application, three broad categories were identified – the most significant being those relating to Ms Nixon’s alleged involvement in the charging and prosecution of Mr Mullett for perjury and perverting the course of justice.
The considerations as to whether Ms Nixon (and, for that matter, the other two defendants) should provide specific discovery are relevant to the question of cross-examination; i.e. whether there is a clear deficiency in the provision of documents which have a real, and not peripheral, relevance to the determination of the issues in dispute in this case.
In the context of this case, I think it premature to make any order for cross-examination of Ms Nixon before addressing the issue of specific discovery and interrogation.
Whilst I can understand why Mr Mullett’s lawyers would want to cross-examine Ms Nixon, I think that any deficiency in their understanding of what motivated Ms Nixon to take the course or courses that she did can be elicited by interrogation which, as I will discuss in a moment, I propose to permit.
Should the defendants make specific discovery?
Some general observations as to the adequacy of the defendants’ discovery
Before addressing the specific categories of discovery, I should make some general observations about the adequacy of the discovery provided by the three defendants.
First, it seems to me that the VGSO on behalf of each defendant has gone out of its way to endeavour to provide adequate discovery. Issuing subpoenas and obtaining documents by way of production was in keeping with the spirit (and probably the terms) of the CPA. Arguably, prior to the introduction of the CPA, such steps were not necessary; it is clear now that a party must take all reasonable measures to narrow the issues and cooperate with the Court. This is what has been done.
Second, many of the complaints made by Mr Mullett, and his solicitor Ms Klaric, are based upon supposition and speculation. They surmise that particular documents ‘must have been’ brought into existence or have been in the possession of the defendants without proffering any basis for that expectation, apart from a general reference to Mr Mullett’s experience in the police force. Whilst this counts for something, it does not count for that much in the face of a sworn affidavit of documents and an affidavit in opposition.
Third (and this is a corollary of the second observation), in this day and age, deponents of affidavits of documents can be assumed to take their obligations of discovery seriously. They, and their lawyers, face serious consequences if they fail to make proper discovery. Provisions of the CPA make the position clear.[7] If it transpires that documents emerge which are either critical to the case, or adversely affect a party’s case (for example), then the failure to disclose such documents will be the subject of close scrutiny and, where necessary, sanctions.[8]
[7]See Civil Procedure Act 2010 (Vic) ss 14, 21, 26.
[8]Civil Procedure Act 2010 (Vic), Part 2.4, and in particular s 56.
Fourth, I do not accept the submission made by counsel for Mr Mullett that I should treat with suspicion Ms Nixon’s response to the various requests for specific discovery. The basis for this submission is the failure by Ms Nixon to swear an affidavit as to her belief of the existence or whereabouts of particular documents referred to by Ms Klaric in her affidavit. Ms Nixon’s solicitor, Ms Singleton, has sworn an affidavit in opposition based upon instructions she received from Ms Nixon.
I do not see anything in the suggestion made by counsel for Mr Mullett that this was the result of some Machiavellian strategic decision of the VGSO to quarantine Ms Nixon. Rather, it seems to me to be a standard response on an application such as this. I repeat that Ms Nixon will potentially be in breach of provisions of the CPA if it transpires that a document or documents have not been properly discovered. That obligation of course extends to her lawyers.
Fifth, and similarly, I do not share the suspicion of Mr Mullet’s lawyers as to some grand conspiracy occasioned by each of the defendants filing identical affidavits of documents. As I have explained, the documents had to be obtained from a variety of sources and it was inevitable, as counsel for the defendants pointed out, that there would be commonality.
Finally, I consider the best way to tackle the complaints made by Mr Mullett is to use the categories referred to by the parties at the hearing of the application.
Specific discovery by Ms Nixon
The broad categories of further discovery which Mr Mullett seeks are as follows:
(a) Documents comprising the brief of evidence (as opposed to the hand up brief which was used at the committal) in relation to charging Mr Mullett with perjury.
(b) Documents relating to the investigation of Mr Mullett which commenced on 17 September 2007 and resulted in his suspension.
(c) Documents relating to the continuation of Mr Mullett’s suspension in February 2008.
(d) Other affidavits allegedly sworn by Ms Nixon in related proceedings.
(e) Documents relating to briefings between Ms Nixon and Assistant Commissioner Luke Cornelius prior to, and after, a meeting that Mr Cornelius attended with the OPI on 28 April 2008.
(f) Documents concerning communications between Ms Nixon and Jeremy Rapke, the Director of Public Prosecutions (DPP) in 2008.
(g) Documents relating to meetings and communications between Ms Nixon and the director of the OPI regarding the director's power to prosecute Mr Mullett.
The brief of evidence upon which the prosecution of Mr Mullett was authorised
It is contended by Mr Mullett that Ms Nixon would have been closely involved in any decision as to whether to prosecute Mr Mullett.
However, Ms Nixon, through her solicitor, Ms Singleton, has denied any involvement in decisions made concerning Mr Mullett’s prosecution. In particular, it is said that:
(a) the documents which comprise the brief of evidence never made their way to her;
(b) she denies that she authorised the prosecution; and
(c) she denies that she made any decision to institute criminal charges.
On the evidence available, there is no reason to doubt Ms Nixon’s statement or that her discovery is adequate.
Investigation by Assistant Commissioner Cornelius
Mr Mullett also seeks documents which relate to the investigations into his conduct related to his suspension in September 2007.
More specifically, Mr Mullett wants specific discovery of documents relating to communications between Ms Nixon and Assistant Commissioner Cornelius (who reported to Ms Nixon and was the officer in charge of the Ethical Standards Department (ESD), which was intimately involved in the investigation).
The VGSO, on behalf of the defendants, obtained the ESD file by way of subpoenas to IBAC and the Chief Commissioner of Police. Ms Nixon has said that there are no other documents that she can recall which relate to the investigation.
I am not satisfied that there is a reasonable basis for concluding that such documents exist.
Briefings between Ms Nixon and Assistant Commissioner Cornelius
Mr Mullett suggests that documents exist evidencing communications and briefings that occurred between Ms Nixon and Assistant Commissioner Cornelius in relation to a meeting that Mr Cornelius had with the Deputy Director of the OPI on 28 April 2008.
Ms Nixon has no recollection of seeing any such documents.
Mr Mullett’s suggestion amounts to mere speculation and cannot be seriously entertained.
The continuation of the suspension of Mr Mullett
Mr Mullett argues that there should be further discovery of documents relating to the continuation of his suspension on 11 February 2008. More specifically, Mr Mullett is seeking the documents referred to in Attachment A of the ‘DAU’ report – a report reviewing the status of his suspension and its continuance.
Ms Nixon says that the document has, in fact, been discovered, no 196, which is identified as the ‘Office of Police Report: Exposing Corruption within Senior Levels of Victoria Police’.
Ms Nixon cannot recall whether any further documents, in addition to the report, were before her when she agreed with its recommendation to continue Mr Mullett’s suspension.
Given Ms Nixon’s statement, I am not satisfied that specific discovery of this category should be ordered.
Other affidavits sworn by Ms Nixon
Mr Mullett seeks discovery of an affidavit dated 23 April 2008, or any other affidavits sworn by Ms Nixon which may be relevant to the case.
Ms Nixon does not recall having made either an affidavit dated 23 April 2008 or any other affidavit in relation to Mr Mullett's conduct and behaviour.
Counsel for Ms Nixon suggested, and it is true, that it is open for Mr Mullett to issue a subpoena for production of the 23 April 2008 affidavit – if it is proven to exist – to the OPP.
In light of Ms Nixon’s statement, no order for specific discovery in this category should be made.
Communications between Ms Nixon and the former DPP
Mr Mullett seeks documents evidencing communications between Ms Nixon and the then DPP, Mr Rapke, regarding the Mullett case in general.
As I mentioned earlier, Ms Nixon denies that she authorised or instituted the criminal charges against Mr Mullett. Consistent with this is her denial of having seen documents of this description.
On the material available, I accept Ms Nixon’s denial and note that, in any event, if documents of this description exist, it is relatively safe to assume that they would have come to light via the subpoena for production served on the OPP.
Communications between Ms Nixon and Director of OPI
Finally, Mr Mullett requests specific discovery of documents relating to communications between Ms Nixon and the Director of the OPI, regarding his legislative powers to prosecute Mr Mullett, and advice received by Mr Taylor from the Solicitor-General.
Again, I regard this category as being speculative and unsubstantiated in light of Ms Nixon’s denial that she played any part in the decision to prosecute Mr Mullett, and did not sight documents relating to the prosecution.
Specific discovery by Messrs Walshe and Taylor
The broad categories of further discovery which Mr Mullett seeks are as follows:
(a) The documents comprising the brief of evidence that Messrs Walshe and Taylor reviewed prior to the laying of the charges against Mr Mullett in July 2009.
(b) Contemporaneous notes of meetings or briefings prepared in connection with the brief of evidence in relation to the charges.
(c) The ESD files, which are said to have been discovered in an incomplete fashion.
Brief of evidence and contemporaneous notes
The allegation made by Mr Mullett that there must be documents other than those already discovered within the brief of evidence is, in my opinion, pure conjecture. Both defendants have now sworn two affidavits of documents and given instructions that they are not aware of any other documents in this category.
I see no reason, on the material available, to doubt the accuracy of this assertion. No case has been made out for specific discovery.
Ethical Standards Department files
It is said by Mr Mullett that these documents, at some point in time, must have been in Mr Taylor’s possession, custody or control given that he worked in the ESD which held the files relating to investigations into Mullett’s conduct.
It is then said that Mr Walshe, as Deputy Commissioner, would have been responsible for ensuring that Mr Taylor following all procedures, such as record keeping.
Mr Taylor has instructed Ms Singleton that he did not create, maintain or inspect the ESD files relating to Mr Mullett. The basis upon which Mr Walshe may have utilised the documents is conjecture.
Again, I regard the assertions by Mr Mullett as speculative and, in no way, forming a reasonable basis for ordering specific discovery – especially in light of the affidavits of documents sworn by both defendants.
Interrogatories
It became clear during the course of preparing for this application, and then hearing argument, that there is a real issue that cannot be solved by discovery alone – namely, identifying what documents (if any) were relied upon by the defendants in making their decisions concerning the suspension of, and the laying of charges against, Mr Mullett.
Counsel for all parties accepted that it was appropriate to make orders for interrogatories. Subsequent to the hearing, Mr Mullett’s lawyers provided a draft order which contained a lengthy list of documents in respect of which Mr Mullett sought to interrogate Ms Nixon, and a smaller list in relation to Messrs Walshe and Taylor. I would not give leave to interrogate on this basis. It is oppressive and constitutes cross-examination.
Rather, interrogation should be confined to a few questions directed to the documents utilised (if any) by each defendant in reaching the impugned decisions – provided a particular defendant admits to being involved in the making of the relevant decision. This would at least provide some clarity as to the basis and motivation for the suspension and the laying of charges. This will serve an additional purpose: it will allow the Court to understand, in advance of the trial, the premises upon which the various decisions were made.
I will only permit interrogation if I am satisfied that the interrogatories conform with the statement at [71] above. Mr Mullett’s lawyers should provide a draft form of order for the Court’s perusal by 1 February 2016. Assuming it is approved, I would require the defendants to answer the interrogatories by 29 February 2016.
Conclusion
Mr Mullett’s application to cross-examine Ms Nixon and for specific discovery is refused. He may, if he wishes, interrogate each of the defendants.
I propose to reserve the costs of the application pending the outcome of the interrogation of the defendants.
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