Roberts v State of Victoria (Ruling)
[2023] VSC 749
•15 December 2023
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
MAJOR TORTS LIST
S ECI 2023 04166
| JASON JOSEPH ROBERTS | Plaintiff |
| v | |
| STATE OF VICTORIA | Defendant |
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JUDGE: | Tsalamandris J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 7 December 2023 |
DATE OF RULING: | 15 December 2023 |
CASE MAY BE CITED AS: | Roberts v State of Victoria (Ruling) |
MEDIUM NEUTRAL CITATION: | [2023] VSC 749 |
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PRACTICE AND PROCEDURE – Police tort – Application for an extension of time to file and serve defence – Additional time sought by defendant to consider whether to plead serious and wilful misconduct defence pursuant to s 74(2) Victoria Police Act 2013 – Voluminous material – Preparation for discovery able to occur concurrently with preparation of defence – No specific prejudice identified by plaintiff – Overarching purpose of the Civil Procedure Act2010.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms S Gold | Robinson Gill |
| For the Defendant | Mr A Imrie, with Mr T Staindl | Victorian Government Solicitor’s Office |
HER HONOUR:
Introduction
On 16 August 1998, two officers of Victoria Police, Sergeant Gary Silk and Senior Constable Rodney Miller, were murdered. Mr Roberts (together with Bandali Debs) was convicted of their murders in 2002 and sentenced to life imprisonment with a non-parole period of 35 years.[1] In 2020, the Court of Appeal granted Mr Roberts leave to appeal against those convictions,[2] and subsequently quashed the convictions and ordered a retrial.[3] On 11 July 2022, Mr Roberts was acquitted of both charges of murder by jury verdict and released from custody.[4]
[1] DPP v Debs and Roberts [2003] VSC 30.
[2] Roberts v The Queen [2020] VSCA 58.
[3]Roberts v The Queen [2020] VSCA 277.
[4]See DPP v Roberts(Sentence) [2022] VSC 532.
By writ dated 8 September 2023, Mr Roberts commenced civil proceedings against the State of Victoria. In his statement of claim, Mr Roberts makes extensive allegations against numerous members of Victoria Police, and seeks damages for torts committed against him. Such torts include assault and battery following his initial arrest and misfeasance in public office, including allegations that 10 named police officers participated in the manipulation of evidence, and non-disclosure of surveillance device transcripts. Mr Roberts claims damages for physical and psychiatric injuries, wrongful deprivation of his liberty for 5,627 days, together with aggravated and exemplary damages.
By summons dated 29 November 2023, the State seeks an extension of time in which to file and serve its defence in this proceeding. Pursuant to s 77 of the Victoria Police Act (2013) (the VPA), the State’s defence was due on 17 November 2023. The State seeks an extension until 28 March 2024. Mr Roberts consents to the grant of an extension, however, opposes the length of the extension sought by the State.
The summons was heard on 7 December 2023. On that day, I granted the State an extension of time by which to file its defence to 29 February 2024. I also ordered that the parties to the proceeding make discovery by 28 March 2024. I indicated to the parties that I would publish my reasons at a later date. These are those reasons.
The State’s application for an extension of time by which to serve its defence
The basis for seeking the extension was set out in the affidavit of Ms Megan Shae Potashnyk affirmed on 29 November 2023. Ms Potashnyk is the solicitor who, under the supervision of Mr Matthew Hocking of the Victorian Government Solicitor’s Office (the VGSO), has the care and conduct of this matter on behalf of the State.
Prior to the summons being filed, the parties communicated in relation to the State’s request for an extension of time by which to file its defence. By letter dated 9 November 2023, the VGSO sought Mr Roberts’ consent for an extension until 28 March 2024, and set out its reasons for the request. In reply, on 14 November 2023, Mr Roberts’ solicitors stated that Mr Roberts consented to a two-week extension, until 1 December 2023. On 16 November 2023, the VGSO restated its request for an extension until 28 March 2024. Mr Roberts’ solicitors thereafter confirmed that they would oppose any application made by the State for such a period.
It was conceded by the State that the additional time sought for service of its defence was significant. However, it submitted that this period of time was not inordinate having regard to the nature of the claim and the task required to consider, investigate, advise and draft the defence. In particular, the State submitted that Mr Roberts’ claim encompasses a period of 24 years. To draw and finalise its defence, the State is required to review documents spanning a period from 1998 until 2022.
The State described the documentary and audio-visual record relevant to the claim as ‘immense’. Over the past two decades, there has been two criminal trials and numerous investigations. Ms Potashnyk deposed that, to date, the VGSO has received approximately 38,000 documents. Further, there are an additional 12,000 hard copy documents yet to be received, as well as 18 boxes to be retrieved from an offsite archive facility. Ms Potashnyk deposed that such documents need to be scanned, uploaded, and categorised on the VGSO’s electronic document management system, and that this was being done in tranches.
Allegations of tort are made against 10 named police officers, and an unknown number of Special Operations Group members.
Section 74 of the VPA provides for the liability of the State for police torts as follows:
(1) Subject to this section, the State is liable for a police tort.
(2)The State is not liable for a police tort if the State establishes on a police tort claim that the conduct giving rise to the police tort was serious and wilful misconduct by the police officer or protective services officer who committed the police tort.
(3)If a police officer or protective services officer commits a police tort for which the State is liable, the officer—
(a) is not liable to any person for the police tort; and
(b)is not liable to indemnify, or to pay any contribution to, the State in respect of the liability incurred by the State.
(4)The State is not liable for a tort committed by a police officer or protective services officer that is not a police tort.
The State is presently required to assess whether the conduct giving rise to each alleged tort was serious and wilful misconduct, and whether to plead the defence pursuant to s 74(2) of the VPA. Ms Potashnyk deposed that this assessment involves review and consideration of the evidence in relation to each member against whom a tort has been alleged. Once advice on this has been provided, the State is required to ‘go through a complex and thorough internal briefing process (involving various levels of Command) in order for instructions to be finalised.’ Further, that ‘due to the length, complexity and seriousness of this proceeding, this can take some time.’ She also explained that, so as to avoid any potential conflict, the VGSO cannot contact or confer with those officers until it receives instructions as to whether or not to plead the s 74(2) defence in respect of each officer.
In total, 24 members of Victoria Police are named in the statement of claim. In her affidavit, Ms Potashnyk stated that 14 of the 24 members are no longer members of Victoria Police. Further, of those, one lives in Queensland, two live in rural Victoria, and the majority will require welfare support due to documented medical conditions. Ms Potashnyk deposed that this will create various difficulties and delay in conferring with former members for the purpose of obtaining instructions.
The State submitted that Mr Roberts’ claim raises complex and potentially novel questions of law. Further, it was contended that the claim for aggravated and exemplary damages in itself requires consideration of ‘wide-ranging and disparate issues’, including Victoria Police training, policies and procedures.
The State submitted that, as contemplated by s 77(2) of the VPA, and consistent with the legislative intent underlying that provision, it was fair and appropriate to allow the State sufficient time to consider the extensive material and obtain advice as to whether to plead the serious and wilful misconduct defence (and the other issues involved). In support of this submission I was referred to the Explanatory Memorandum to the Victoria Police Bill 2013 and the expressed legislative intent in respect of s 77.
It was also submitted that the additional time sought would enable a well-drawn pleading, drafted without iteration, which would, in turn, serve the overarching purpose of the Civil Procedure Act 2010 (the CPA) to ensure the proper identification and narrowing of the issues in dispute, and the efficient and orderly future conduct of the proceeding.
The Court was asked to take note of the likely impact of the Christmas holiday period on the capacity and availability of the State’s representatives, employees of Victoria Police tasked with assisting those representatives, and witnesses (or potential defendants). I was also asked to take into account the possibility that those members of the police force who are still operational, may have additional demands over this period, including to respond to bushfire events.
Finally, so as to allay concern in respect of any delay arising from the proposed extension of time, it was suggested that the State’s discovery obligations in this matter could occur in parallel with the drafting of the defence.
In view of the above, it was submitted that the time sought was a realistic estimate of the minimum time required by the State to undertake the aforementioned tasks in a thorough manner. It was submitted that it was necessary and in the interests of justice for the Court to grant the extension so as to enable the State to properly consider and carefully plead a defence to a claim ‘of this size and significance’. The State submitted that the provision of sufficient time to draw the defence would benefit the Court and the parties by reducing the likelihood of amendments and further extensions, consistent with the State’s obligations under the CPA and as a model litigant. The State acknowledged that any delay in the progress of a proceeding is undesirable. However, it submitted that there was no specific prejudice to Mr Roberts arising from the proposed extension.
In respect of the principles relevant to my consideration of this application, the State referred me to the High Court decision in Jackamarra v Krakouer,[5] in particular, the judgment of Kirby J. In that case, the applicant had failed to enter an appeal for hearing within time, and it was dismissed for want of prosecution. An application for an extension of time was refused by the Full Court of the Supreme Court of Western Australia. The majority of the High Court (Brennan CJ, McHugh and Kirby JJ) allowed the appeal and extended the time for the applicant to enter his appeal with the Full Court. In his judgment, Kirby J outlined the considerations relevant to a court’s determination of whether or not to extend time, where there had been a procedural time default. Relevant to this application, this included considering the length of the delay, the reason for the delay, and the extent of any prejudice to the other party.[6] Whilst noting that each application must be determined on its own particular circumstances, the question for the Court is whether it would be just to grant or refuse the application.[7]
[5](1998) 195 CLR 516.
[6]Ibid, 542-543 [66]. Also citing State ofVictoria v Davies (2003) 6 VR 245, [23]; Vimplane Pty Ltd v Cirss [2005] VSC 45, [29]; Limin James Chen & Anor v Kevin McNamara & Son Pty Ltd & Anor [2013] VSC 539, [38]-[42]; and Leane v Dalbon [2020] VSC 461, [13].
[7]Jackamarra (n 5), 541-542 [66].
Mr Roberts’ submissions
Mr Roberts opposed the length of the extension sought by the State as he was concerned to progress the proceeding in a timely manner. It was said that Mr Roberts wished to act cooperatively and to avoid unnecessary costs and delay. Further, Counsel for Mr Roberts acknowledged ‘the utility of a well drafted and comprehensive substantive defence.’ However, it was put that the period sought by the State was unreasonable. Mr Roberts submitted that the State is an experienced, well-resourced and large litigant, which is able to manage significant litigation in a timely manner.
Mr Roberts did not dispute that the factual matrix of the case is complicated, and the documentation relevant to this proceeding extensive. However, he submitted that much of the material relevant to the proceeding has been well traversed in recent years, including by way of investigations, which led to the ultimate appeal and quashing of his convictions, a subsequent internal review, and sworn evidence in the course of the second trial.
In respect of Ms Potashnyk’s affidavit, Mr Roberts submitted that, aside from general statements that some police officers had retired or resided interstate, the affidavit did not depose with any specificity difficulties in obtaining instructions from those members. Further, it was put that the administrative process for taking instructions in respect of the s 74(2) defence was not a matter which the Court need be concerned with.
Mr Roberts submitted that matters raised by the State in respect of the number of documents and document management systems related to discovery and evidence, rather than the proper preparation of the defence.
Finally, it was submitted that foreshadowed difficulties (such as bushfire events) should not at present be a basis for an extension of time but, rather, would be a matter that could be dealt with sensibly and cooperatively, in the event such difficulties arose.
Analysis
In a civil proceeding commenced by writ, pursuant to r 14.04(b) of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) (the Rules), a defence is ordinarily required within 30 days after service of the statement of claim. Given the complexity of police tort cases, in particular the need to consider a potential s 74(2) defence, s 77(1) of the VPA allows the State 60 days within which to serve its defence. Subsection (2) confers power on a court to extend the time by which the State is required to serve its defence.[8]
[8]The Court also has this power pursuant to r 3.02(1).
The Explanatory Memorandum noted that the additional period of time given to the State to serve a defence under this section, reflected ‘the importance of the decision whether or not to plead the serious and wilful misconduct defence and the significant consequences of such a pleading for the State, the police officer … involved and the plaintiff'. It was foreshadowed that in some situations, the State may need more than 60 days, such as: where an internal investigation has not yet been completed; where many police officers are involved in the incident; or where the issues are complex and require further investigation or legal advice before pleading the defence.
Relevant to this application, internal and external investigations have been completed. There are at least 10 police officers against whom torts are alleged, and an additional 14 officers named in the statement of claim. The issues are complex, and the allegations relate to events over two decades. Mr Roberts conceded an extension of time beyond 60 days was justified. The question before me is the length of the extension of time for service of the defence in this proceeding.
The State referred me to Jackamarra, and other decisions to guide me in my consideration of this application.[9] Whilst those decisions provide some guidance as to the general principles relevant to the exercise of my discretion in this application, none were in respect of an extension of time for service of a defence (whether under the Rules or the VPA), and none considered the CPA.
[9] Jackamarra (n 5).
In determining this application, I am bound to consider the overarching purpose of the CPA - to facilitate the just, efficient, timely and cost-effective resolution of the real issues in dispute.
The Court, in determining pre-trial applications such as this, must seek to give effect to the overarching purpose of the CPA by facilitating the identification of the real issues in dispute, and the just and timely resolution of the proceeding. Here, the decision involves a balancing act between the desirability of a well-drafted and comprehensive defence, and the importance of ensuring that this proceeding advances in a timely manner.
Pursuant to s 42 of the CPA, the solicitor acting on behalf of the State must certify that each denial and non-admission pleaded in its defence has a proper basis.
Whilst this proceeding raises allegations spanning more than two decades, it is not a claim that has been issued ‘out of the blue’. The IBAC investigation (including transcripts and exhibits derived from a series of both private and public examinations of relevant witnesses), the Court of Appeal decisions,[10] subsequent internal review, and evidence given in the retrial of Mr Roberts, is such that there is considerable information readily available to assist those responsible for drawing a defence.
[10]As above (n 2; n 3).
In the affidavit material before me, save for stating that the task is complex and time-consuming, little detail is given as to the status of the State’s assessment in relation to whether the s 74(2) defence should be pleaded. Nor does the affidavit state when such advice can reasonably be expected to be given. Once the advice is provided, Ms Potashnyk deposed to an unspecified amount of time being required to complete an internal briefing process in order for instructions to be finalised. Whilst acknowledging the need for careful consideration of such advice, common sense dictates that the grant of a shorter extension (than sought by the State) will abridge the time taken by the State to decide whether or not to plead the s 74(2) defence in respect of each alleged tortfeasor.
There are a considerable number of police officers named in the statement of claim – 24 in total, including retired members and those in regional Victoria and interstate. I note Ms Potashnyk’s affidavit did not state that any of those officers were not able to be located. Ms Potashnyk foreshadowed, and I accept, that the majority of the retired members would require welfare supports due to medical conditions. Even allowing for such support, on the evidence before me, I am not satisfied that the retirement, location, health or welfare needs of any relevant witness is a sufficient factor to justify any additional time for the State to serve its defence.
The complexity of the claim, and any novel point of law to be determined, may justify some additional time to prepare the State’s defence, but not to the extent sought. The State’s submission that a generous period to draw the defence was justified in circumstances where Mr Roberts’ legal representatives had the benefit of more than 12 months to draw his statement of claim was speculative and plainly unhelpful.
Further, the State is not required to plead to the particulars of exemplary and aggravated damages in its defence. Therefore, I do not accept that the pleading of such damages in the statement of claim justifies the grant of an extension of time for the period sought by the State.
In considering this application I note that Mr Roberts did not point to any specific prejudice arising from the proposed delay. Indeed, his solicitors were open to an extension of time being granted, but, as previously mentioned, not for the period sought.
According to the affidavit, the gathering and categorising of voluminous hard copy and electronic documents has begun, and is continuing. The affidavit did not disclose when the additional boxes would be delivered to the VGSO. The State will need to ensure that this process proceeds in a timely manner, consistent with its obligations under the CPA.
I considered it a sensible suggestion by the State that the discovery process occur in parallel with the preparation of its defence. This avoids compounding any delay as a result of extended service of the defence upon the future interlocutory steps in this proceeding.
In determining the length of extension which is just in the circumstances, it is inappropriate to take into account the potential impact of events that have not eventuated. Further, in accordance with r 3.04, the period from 24 December 2023 to 9 January 2024 is excluded from the calculation of the extension given. Whilst noting that the VGSO may not be closed for that entire period, and without knowing the availability of the relevant named police officers, the operation of this rule addresses the State’s concern as to the potential impact of this time of year on its ability to progress the drawing of its defence.
For the aforementioned reasons, I am satisfied that, having regard to the outcome which best promotes the overarching purpose of the CPA, the State should only be granted an extension to file and serve its defence by 29 February 2024.
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