Skrijel v Mengler

[2001] VSC 437

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

PRACTICE COURT

No. 5446 of 1993

MEHMED SKRIJEL	Plaintiff
v.
JOHN CARL MENGLER AND OTHERS	Defendants

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JUDGE:	BEACH, J.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	2 NOVEMBER 2001
DATE OF JUDGMENT:	2 NOVEMBER 2001
CASE MAY BE CITED AS:	SKRIJEL v. MENGLER & ORS.
MEDIUM NEUTRAL CITATION:	[2001] VSC 437

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CATCHWORDS:      Practice and Procedure – Amendment of pleadings – Delay – Application oppressive – Application refused.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	In person
For the First Named Defendant	P. Marzella	Hardham Dalton & Sundberg
For the Second Named Defendant	B. Walters
For the Third Named Defendant	G. Mehan	Victorian Government Solicitor

HIS HONOUR:

1. On 1 April 1993 the plaintiff filed a writ in this court naming as defendants John Carl Mengler and the National Crime Authority.  His statement of claim pleads that Mengler was at all material times a detective chief superintendent of police in the State of Victoria on secondment to the National Crime Authority and was acting in the capacity of its chief investigator.  His statement of claim alleges that on 15 October 1985 Mengler directed a force of police officers to attend the plaintiff's property at Digby in the State of Victoria: 

"...and maliciously and without reasonable cause and probable cause prefer charges of cultivating cannabis, trafficking in cannabis, possessing cannabis and possessing explosives in suspicious circumstances against the plaintiff." 

1. In due course the plaintiff was committed, tried, found guilty of the charges and sentenced to imprisonment for two years with a minimum of nine months.  Of the sentence imposed, after remissions, the plaintiff served approximately five-and-a-half months.

1. On 6 May 1988 the Full Court of this court set the convictions aside and ordered a retrial.  On 30 June 1989 the acting director of Public Prosecution entered a nolle prosequi in respect of the charges.  In his statement of claim the plaintiff alleges that by reason of those matters he has suffered injury to his reputation and suffered mental and bodily pain and anguish and has thereby suffered loss and damage.  He then seeks to recover damages from the defendants including exemplary damages.

1. Since that time there have been numerous applications before the court on behalf of the plaintiff for leave to amend his statement of claim.  In due course the plaintiff added two further defendants to the proceeding.  The third of the defendants is Gary Weston Cook who the statement of claim alleges was at the material time a member of the Victoria Police Force attached to the Victoria Police Fingerprint Bureau.  The fourth defendant is the State of Victoria which it is said was the principal of the third defendant.

1. I do not propose to recite the history of the interlocutory steps taken in the proceeding to amend the plaintiff's statement of claim.  It can be seen from the court file that there have been numerous applications in relation to it over the years.

1. At all events, on 9 May 2001 counsel for the parties appeared before me in the Practice Court on the hearing of yet another application on behalf of the plaintiff for leave to amend the plaintiff's statement of claim.  On this occasion the plaintiff was represented by Mr  Hayes, one of Her Majesty's counsel.  The four defendants were also represented by counsel.  Apparently counsel for the parties had reached agreement as to the order to be made in relation to the plaintiff's action.  Mr  Hayes informed the court that the one and only course of action that the plaintiff intended to plead in the amended statement of claim against the defendants was one of alleged malicious prosecution.  It was on the basis of that fact that the defendants consented to an order being made that the plaintiff have leave to file and serve an amended statement of claim.  The amended statement of claim was in fact handed to me, initialled by me and placed on the court file.  In due course a further copy of the amended statement of claim was filed in the court.  That occurred on 20 June 2001.

1. On 9 October 2001 the plaintiff filed another summons in the court whereby he again seeks leave to amend his statement of claim.  The amendment sought is to include the cause of action of misfeasance in public office, a cause of action which had been in the statement of claim prior to 9 May 2001 but which had been deliberately removed from it.

1. In the affidavit of Peter Henry Opat, sworn on behalf of the second defendant on 12 October 2001, Mr  Opat has said: 

"5.At the time of amending his statement of claim as set out in the previous paragraph of this affidavit, the plaintiff through his counsel asserted that the only cause of action that he was pursuing was that of malicious prosecution.  It was on this basis that consent to the amendment was given."

In the affidavit of Kevin Gregory, sworn on behalf of the third and fourth defendants on 1 November 2001, Mr  Gregory has said: 

"4.I refer to paras 8 to 11 of the plaintiff's said  affidavit.  I am informed by Mr  Mehan of counsel and verily believe that he made the agreement with Mr  Hayes QC referred to in those paragraphs.  Mr  Mehan notifies me, and I verily believe, that he consented to the orders which were made 9 May 2001 as Mr  Hayes told him that if he were to agree to those orders the plaintiff would make no claim against the third and fourth defendants for damages arising out of the cause of action for misfeasance in public office."

In my opinion, the plaintiff cannot now resile from the agreement his counsel reached with counsel for the defendants on 9 May 2001.  Nor is it appropriate at this stage to permit further interrogation of the defendants or any of them.

1. This action has been on foot since 1993.  When one has regard to the cause of action pleaded, and the time at which it is said the cause of action arose, in my opinion it is totally unacceptable that interlocutory steps have not been concluded and the action brought to a point where it is ready for trial.

1. The plaintiff's summons filed in the court on 9 October 2001 is dismissed.  I order that the plaintiff pay the defendant's costs of the application on an indemnity basis.

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