Skrijel v Mengler
[2003] VSC 64
•7 March 2003
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
No. 5446 of 1993
| MEHMED SKRIJEL | Plaintiff | |
| v | ||
| JOHN CARL MENGLER | Firstnamed Defendant | |
| COMMONWEALTH OF AUSTRALIA | Secondnamed Defendant | |
| GARY WESTON COOK | Thirdnamed Defendant | |
| STATE OF VICTORIA | Fourthnamed Defendant | |
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JUDGE: | NETTLE J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 7 March 2003 | |
DATE OF RULING: | 7 March 2003 | |
CASE MAY BE CITED AS: | Skrijel v Mengler and ors | |
MEDIUM NEUTRAL CITATION: | [2003] VSC 64 | |
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | In Person | |
| For the Firstnamed Defendant | Mr M. Tovey QC with Mr P. Marzella | Hardham Dalton & Sunberg |
For the Secondnamed Defendant | Mr B. Walters SC | Australian Government Solicitors |
For the Thirdnamed Defendant | Mr J. Santamaria QC | Victorian Government Solicitors |
For the Fourthnamed Defendant | Mr R. Gipp | Ebsworth & Ebsworth |
HIS HONOUR:
This proceeding was instituted almost ten years ago and concerns events which took place almost 18 years ago. Since its inception it has taken many forms. There have been some 18 amended statements of claim, the most recent of which was settled by Mr P.R.A. Hayes QC. The allegations which are made by the plaintiff have ranged far and wide.
As the plaintiff's claim now stands, it is for damages for malicious prosecution against a retired police officer and a serving policeman, and against the Commonwealth and the State. In various ways, it is alleged that they procured the prosecution of the plaintiff for offences of growing and possessing quantities of cannabis and possession of an unlicensed firearm, when they knew that there was no reasonable evidential basis for the prosecution, and with the motive of silencing the plaintiff's campaign against police and other official involvement in the illicit importation of narcotics.
In the second half of last year, after the completion of an exhaustive round of interlocutory processes extending over many years, the matter was set down for trial to begin on Monday, 10 February 2003.
On 7 February 2003, when I called the matter on for final directions, the plaintiff applied for a month's adjournment of the trial on the basis that he had just terminated the retainer of counsel who had been retained to appear at the trial, and because out of a sense of loyalty to counsel, or otherwise, his solicitor refused to act any further. Over objection I granted the plaintiff an adjournment until 24 February for the reasons expressed in my ruling of 7 February 2003.
On 20 February 2003, I called the matter back on again before me in an attempt to ensure that all would be ready for trial on the following Monday, and at that time the plaintiff made an application for another month's adjournment, and gave as his reason that he had been unable to find any counsel willing to act for him, and that his former solicitor had only the night before handed over many of the documents necessary for him to conduct the trial. On that occasion I refused any further adjournment, and directed that the trial begin on 24 February 2003.
The plaintiff being then in disobedience of an order previously made by the Master to make an unlicensed firearm available for inspection, I also ordered that the plaintiff produce the weapon to the custody of the Prothonotary by 9.30 am on 26 February 2003.
On 24 February 2003, the plaintiff appeared before me again, this time with a McKenzie friend and sought a further adjournment of the trial. Upon that application I granted an adjournment of a further week with the trial to begin on Monday, 3 March 2003.
The trial began on 3 March 2003 with the plaintiff appearing unrepresented, assisted by his McKenzie friend. On the first day of the trial the plaintiff made an extensive opening statement, in the course of which he tendered a number of documents, and he then continued on into the morning of the next day tendering some 100 further document and providing an explanation as to their significance as he saw it. He thereafter identified the witnesses he proposed to call, and the substance of the evidence that he expected them to give, and then applied for an adjournment for the remainder of the day to prepare himself to begin calling that evidence. A brief discussion followed in which the plaintiff increased from half a day to a day and a half the period of the adjournment that he sought, but I allowed an adjournment only until the next morning.
On the next morning, 5 March 2003, the plaintiff began by tendering straight away a document headed "Notice of Discontinuance", which was in the form of an affidavit he had sworn only that morning and in which he expressed a large number of complaints about the treatment which he said had been accorded to him in the conduct of his case by his former lawyers and by the Court. He concluded in terms that he would be doing himself a gross disservice if he attempted to continue with the proceeding without competent legal representation and he asked that he be given leave to discontinue the proceeding. Upon the application of the defendants I adjourned the hearing of that application until this morning.
When the matter came on for hearing before me this morning the Chairman of the Victorian Bar, Mr Rush QC, appeared on behalf of the plaintiff to say that the Bar had learned of the plaintiff's plight and that arrangements had been made for the senior partner of a firm of solicitors skilled in litigation to assess the plaintiff's case and, if the assessment were positive, for counsel to act pro bono on the instruction of those solicitors to represent the plaintiff for the balance of the trial. Mr Rush said that his preliminary estimate was that the task would be time consuming, because of the large volume of documentary material, and on behalf of the plaintiff he asked for an adjournment of the trial for one month.
The application for adjournment is opposed by all defendants, and counsel for each of the first, second and third defendants have made detailed submissions as to why it should not be allowed. I hope therefore that I do not do an injustice to the quality of those submissions, or the assistance which I have derived from them, by saying that the substance of them seems to me to be as follows:
·First, that the plaintiff has so many times before fallen out with his legal advisers that it cannot be expected that he will get any further under the arrangements outlined by Mr Rush QC.
· Secondly, that the plaintiff has been less than frank if not outright mendacious in the complaints which he has made about his former legal advisers and the state of preparation in which they left the matter before they departed.
· Thirdly, that the plaintiff has been less than frank in the reasons which he has given for seeking adjournments in the past.
·Fourthly, that the plaintiff now realises that his case is hopeless and is seeking the adjournment to avoid the inevitability of suffering judgment.
·Fifthly, that the plaintiff has abused this proceeding by treating it as a vehicle, and he continues to use it as a vehicle, to make extraordinary and outrageous allegations of fraud and conspiracy against the defendants, the Commonwealth and the State, and also the legal profession and other policemen.
·Sixthly, that the adjournment should be seen to be motivated solely by the plaintiff's desire to keep the proceeding alive as a vehicle in which to continue to make such allegations under the cover of privilege.
·Seventhly, that the plaintiff upon his own admission has no money or property out of which the defendants might recover their costs.
·Eighthly, that any adjournment of the kind which is sought will mean that the knowledge so far acquired by all concerned in the trial will be wasted, because the matter will go out of the list and not be re-listed for many months.
·Finally, and above all, that it is unjust and unfair that the defendants who are natural persons should any longer be vexed by this proceeding and the abusive and damaging allegations which are made against them in this proceeding. It is submitted that they should be permitted to have the matter proceed to judgment so that their reputations may be vindicated.
As at present advised, I am not able to say whether the plaintiff’s conduct of this case is an abuse of process or undertaken to obtain the relief which he says that he seeks. All I can say for the time being is that the plaintiff’s allegations are extraordinary and far reaching and if there be truth in any of them, it would be cause for the greatest concern. Nor am I in a position to say whether or not the plaintiff's past experiences with counsel and solicitors mean that he will fall out just as quickly and as badly with what is now on offer to him through the courtesy of the Bar. His allegations against his former counsel and solicitors are shocking, but it is not my task to pass judgment upon them and in any event, I lack all the facts with which to do so.
I am inclined to think that the plaintiff has not been wholly accurate in the reasons which he has given for seeking adjournments in the past, or in the complaints he has made about the way in which he has been treated in the conduct of the proceeding, but I am prepared to accept, until and unless the contrary is proved, that if there has been any inaccuracy it is the consequence of his having to represent himself in what to a layman, if not to many lawyers, must appear to be a daunting piece of litigation.
If the plaintiff had persisted in his attempt to discontinue the proceeding I may have concluded that his actions were an abuse of process of the kind which counsel has described[1]. But given that the plaintiff's application for adjournment appears directed to obtaining the sort of legal assistance which he so obviously needs to conduct this litigation, I am not now persuaded that his motives in seeking the adjournment are malicious.
I accept that it is a consideration of the highest importance that the defendants should not be vexed by this proceeding any longer than is necessary, and I accept that the proceeding cannot be allowed to continue much longer without final resolution. I also accept that it would be totally unacceptable to allow the work already done by all in this proceeding to be wasted.
As against that, however, one does not need authority to know that our system so much prizes fairness as to bend over backwards to do justice to the unrepresented litigant, and paradoxically that the more that it does so, the more it does an injustice to those whose who are represented. If therefore there is any realistic possibility of legal representation for an unrepresented plaintiff, it is not only in the interests of the plaintiff, but also in the interests of the defendants that it should be exploited.
Regrettably, that cannot be done without some delay and consequential further prejudice to the defendants. But it is possible within this Division of the Court to ameliorate that delay and prejudice by so adjusting the starting dates of future cases to allow for this trial to resume on 7 April this year.
Subject therefore to anything which counsel may have to say about the date upon which the trial should resume, which is to say, whether it should be 7 April 2003 or a date shortly after 7 April 2003, I am prepared to allow the adjournment which is sought (in the hope that when the trial resumes the plaintiff will be represented by counsel). Regardless, however, of the exact date on which the trial resumes, it is my intention that the matter will then proceed without further interruption to conclusion.
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1 See, for example, Hess v. Le Bouchere (1898) 14 T.L.R. 350; Fox v. StarrNewspaper Company [1898] 1 Q.B. 636 at 639, per Chitty, J; Heimman v. Commonwealth (1941) 58 S.R. (N.S.W) 2 at 5, per Bavin, J; Packer v. Maher (1984) 3 N.S.W.L.R. 386 per Hunt, J; Castanho v. Brown & Root United Kingdom Ltd [1981] A.C. 557 at 571 per Lord Scarman; Gilham v. Browning [1998] 1 W.L.R. 682 at 691 per May LJ; and, in a slightly different context, Sharpe v. Renn [1917] S.R.(Qld) 317.
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