Mullett v Nixon - [2015] VSC 727

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…

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: Mullett v Nixon [2015] VSC 727
Case: [2015] VSC 727
Decision Date: 16 December 2015

CaseChat Overview and Summary

In the matter of Mullett v Nixon, the Supreme Court of Victoria was asked to decide whether the plaintiff, Mullett, could examine the deponent of an affidavit of documents under section 57 of the Civil Procedure Act 2010 (Vic) and whether specific discovery could be ordered. The plaintiff sought to discover the basis of statements made by the defendant, Nixon, in the affidavit, which was central to the dispute over an alleged breach of contract. The case involved a complex contractual arrangement, and the affidavit in question contained crucial statements that the plaintiff believed were inaccurate or misleading.

The primary legal issue before the court was whether the plaintiff was entitled to examine the deponent of the affidavit of documents to challenge the statements made therein. The plaintiff argued that such examination was necessary to uncover the truth and to address the alleged misleading statements. The court had to balance the plaintiff's right to obtain relevant information with the defendant's right to protect the deponent's privacy and the principle of proportionality. Additionally, the court had to consider whether specific discovery could be ordered under the Supreme Court (General Civil Procedure) Rules 2015, given the context of the case and the nature of the information sought.

The court found that the plaintiff's application to examine the deponent was not justified. It considered the information already available to the plaintiff, the relevance of the deponent's examination to the issues in the case, and the potential prejudice to the deponent. The court concluded that the plaintiff had not demonstrated a sufficient need for the examination, as the information sought was already within the plaintiff's reach through other means, such as cross-examination and review of the documents. Consequently, the application for specific discovery was also refused. Instead, the court ordered interrogatories to be served, which the plaintiff could use to obtain further information from the defendant. This approach allowed the plaintiff to address the issues in the case without infringing on the defendant's rights or unnecessarily burdening the deponent.

Orders