Skrijel v Mengler and Ors
[2002] VSCA 55
•26 April 2002
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No.5446 of 1993
| MEHMED SKRIJEL | |
| Applicant | |
| v. | |
| JOHN CARL MENGLER and COMMONWEALTH OF AUSTRALIA and GARY WESTERN COOK and STATE OF VICTORIA | Respondents |
APPLICATION ON SUMMONS
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JUDGES: | PHILLIPS and BUCHANAN, JJ.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 5 April 2002 | |
DATE OF JUDGMENT: | 26 April 2002 | |
MEDIUM NEUTRAL CITATION: | [2002] VSCA 55 | |
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Practice and procedure – Successive attempts by plaintiff to re-plead his case – Consent orders made for re-pleading on basis agreed between counsel – Subsequent application by plaintiff to restore claim omitted pursuant to the agreement – Application dismissed – Application for leave to appeal – Allegation that plaintiff’s counsel acted without, or contrary to, instructions – Case not reasonably open on the affidavits – Application for leave to appeal refused.
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| APPEARANCES: | Counsel | Solicitors |
For the Applicant | Mr. M.J. Corrigan | Basil Nuredini |
For the first Respondent | Mr. P.J. Marzella | Hardham Dalton & Sundberg |
For the second Respondent | Mr. K. Mueller | Australian Government Solicitor |
| For the third and fourth Respondents | Mr. J.G. Santamaria, Q.C. and Mr. G.L. Meehan | Victorian Government Solicitor |
PHILLIPS, J.A.
We have before us two summonses for determination, both filed on behalf of Mehmed Skrijel. By the first, which was filed on 23 November 2001, the applicant seeks, in effect, leave to appeal out of time from the order made in the Practice Court on 2 November 2001 dismissing the applicant’s summons filed on 9 October 2001. That summons was for leave to amend the statement of claim filed by the applicant in the proceeding which he commenced in the Supreme Court on 1 April 1993, naming Mr. Mengler and the National Crime Authority as defendants. That proceeding has had a long interlocutory history and, it seems, is still not ready for trial.
The genesis of the proceeding lies in events in October 1985 when, it is claimed, Mr. Mengler, acting under secondment at the time to the National Crime Authority, directed certain officers to attend at the applicant’s property in Digby in consequence of which the applicant was charged with cultivating cannabis, trafficking in cannabis and other offences. The applicant was committed for trial, tried and found guilty on these charges and sentenced to imprisonment for two years with a minimum of nine months. But on 6 May 1988, an appeal to the Full Court was successful; the convictions were set aside and a re-trial was ordered. On 30 June 1989 a nolle prosequi was filed.
A brief history
When the writ to commence this proceeding was filed on 1 April 1993, the applicant claimed damages for malicious prosecution. Since then there have been innumerable interlocutory steps, and the applicant has filed or proposed many amendments to his pleading. Counsel for the second respondent has from time to time filed a chronology and we were referred to that bringing the matter up to the end of last year. Closely typed for convenience, it is none the less some 11 pages long and it is from that document that I extract some of the steps now relevant to the summonses before us. I have drawn too on the very helpful reasons for judgment given from time to time by Master Evans. It may be not unimportant, as was emphasised by Mr Santamaria (who appeared before us for the third and fourth respondents), that we do not have before us all of the various formulations made at one time or another by the applicant of the case he was making or was seeking to make, but only some of them - as the following will attest.
After pleadings, particulars and discovery, and a number of associated interlocutory steps including an order on 17 November 1997 reinstating the proceeding, on 7 May 1998 the applicant filed a summons to substitute the Commonwealth of Australia as second defendant; to add two further defendants to the proceeding, Gary Weston Cook (a member of the Victoria police force attached to the Victoria Police Fingerprint Bureau) and the State of Victoria (said to have been the principal of Mr. Cook) - the applicant alleging the fabrication of certain evidence tendered against him on his trial; and, thirdly, for leave to file the statement of claim annexed to the summons. On 16 June the applicant apparently filed the proposed amended pleading.
On the return of the summons on 29 July 1998, Master Evans ordered the substitution of the Commonwealth as second defendant and the addition of the other two as third and fourth defendants, giving leave at the same time to the applicant to deliver an amended pleading in conformity with the very detailed reasons for judgment delivered by the Master. Inter alia, the Master refused the applicant leave to amend to include an allegation against the third defendant Cook of malicious prosecution or to add a claim against the first defendant Mengler of abuse of process or misfeasance in a public office. He did, however, allow that claims of misfeasance in a public office and conspiracy might be made against the third defendant. On 28 August 1998 the applicant filed an amended pleading and on 5 October Eames, J. dismissed an appeal by the third and fourth defendants from the Master's order.
On 22 April 1999 the applicant provided the parties with another version of the statement of claim and on 28 April he filed a summons seeking leave to amend accordingly. That application was dismissed by Master Wheeler on 4 June 1999 and an appeal by the applicant was dismissed by Warren, J. on 29 June 1999.
On 2 May 2000, after the taking of numerous steps in relation to discovery and interrogatories, and after the applicant had provided to the parties an amended statement of claim dated 26 April 2000, the applicant filed yet another summons seeking inter alia leave to replead. That application was finally argued before Master Evans on 22 and 23 June 2000. On 15 August 2000 the Master gave the applicant leave to reformulate his case in conformity with the reasons for judgment then delivered, reasons in which, after canvassing the history of the proceeding to date, the Master dealt carefully and comprehensively with the various causes of action upon which the applicant was seeking to rely - malicious prosecution, misfeasance in a public office and conspiracy. Inter alia, the Master again declined to allow the applicant to introduce a claim for misfeasance against the first defendant.
On 23 October 2000 the applicant filed a further summons, an affidavit in support and a proposed amended pleading, and after apparently seeking further time to recast the pleading he was ordered by Master Evans on 5 February 2001 to file any further proposed pleading by 26 March 2001. A proposed further amended pleading was duly filed on that day but when the summons came on for hearing and determination on 2 April 2001 the application to replead was dismissed by the Master.
Nothing daunted, the applicant filed notice of appeal on 9 April 2001, filing also a further amended statement of claim on 23 April and a revised statement of claim on 26 April. On 30 April 2001 the summons came on for hearing in the Practice Court, all parties being represented by counsel, the applicant by Mr. Hayes Q.C. The hearing was adjourned to 9 May when the matter was disposed of by consent. According to the authenticated order of 9 May 2001 all parties were represented as before. Consent orders signed by all counsel were filed, with a statement of claim dated 9 May. The judge was told that counsel had reached an agreement to the effect that the applicant might replead as now proposed, that the one and only cause of action now to be pleaded was that of malicious prosecution, and that the defendants reserved their right to challenge that cause of action in due course. In the result, orders were made as sought, comprising a number of directions for the continued prosecution of the matter and including an order that the applicant have leave to file and serve an amended statement of claim in the form dated 9 May 2001. Otherwise the applicant's appeal was dismissed.
Consistently with the foregoing, the authenticated order of 9 May 2001 contained two recitals under the heading "Other Matters". The first recorded this:
"The Court notes that the one and only cause of action that the Plaintiff intends to plead in the amended statement of claim referred to in [the order] below against the Defendants is one of alleged malicious prosecution."
The second recital recorded that the defendants were reserving their rights to challenge the pleading authorised by the order, as disclosing no cause of action.
A number of interlocutory steps then followed in relation to pleadings, particulars and discovery, including two appearances before Master Evans on summonses filed by the first defendant, both leading to further orders by way of directions, the first on 20 June and the second on 17 July 2001. The first defendant filed a third summons on 21 September 2001 and on 9 October 2001 the applicant filed another summons seeking leave to replead his statement of claim in accordance with the proposed pleading which was exhibit MS7 to his affidavit in support, sworn on 8 October 2001. That exhibit contained the cause of action of misfeasance in a public office, which had been omitted from the pleading authorised by consent on 9 May, the applicant claiming in the affidavit in support that that cause of action had been removed without justification. (He now says more plainly that that cause of action was removed by Mr Hayes contrary to his express instructions.)
On 2 November 2001, the summons of 9 October came on for hearing, not before a master as was usual, but before the judge in the Practice Court. The applicant had no legal representation and argued his own case. There were by then two answering affidavits, one of Mr Gregory (acting for the third and fourth defendants) sworn on 1 November and relating to the hearing on 9 May 2001, and one of Mr Opat (acting for the second defendant) sworn on 12 October 2001 and which, although sworn mainly for another purpose, touched in paragraph 5 upon the hearing on 9 May 2001. There was also an affidavit in reply sworn by the applicant on the day of the hearing, 2 November. Upon hearing the matter the judge was of opinion that the applicant should not be permitted to resile from the agreement between the parties which had been announced to him by counsel on 9 May and accordingly, for reasons that were then delivered, his Honour dismissed the application to replead the case - and so ordered with costs against the applicant on an indemnity basis.
The present summonses
The orders made on 2 November are the subject of the first of the summonses now before us, that filed on 23 November 2001, in which the applicant asks for an extension of time within which to seek leave to appeal and, if granted, leave to appeal against the orders of 2 November. Initially the application was supported simply by an affidavit of the applicant sworn on 30 November 2001 (which included reference back to the affidavits he had filed earlier, on 8 October and 2 November, in the Trial Division) and a supporting affidavit of a solicitor about filing and service, also sworn on 30 November 2001. But the application having been adjourned, first, on 7 December last to 8 February 2002 and then further adjourned to 1 March, a number of other affidavits were filed. In addition to the two affidavits of 30 November last, we now have a further affidavit (a very lengthy one) sworn by the applicant on 26 February 2002, an affidavit of his solicitor, Mr. Nuredini, sworn on 27 February 2002, and two answering affidavits, one of Mr. Dalton (acting for the first defendant) sworn on 6 December 2001 and the other of Mr. Opat sworn on 28 February 2002.
When the summons filed on 23 November 2001 came on for hearing on 1 March last, a day on which a number of applications were being heard, it soon became apparent to the Bench (of which I was member) that the matter could not be heard and determined in the time allotted. Moreover, in his affidavit of 26 February 2002 the applicant foreshadowed, for the first time, an application to seek, in effect, leave to appeal out of time from the orders made on 9 May 2001. Accordingly, directions were given for the filing of a further summons to that effect and for the filing of any further affidavits – and the matter was adjourned over until 5 April. That led to the filing of a second summons, on 8 March last, seeking orders to enable the applicant to appeal from the orders of 9 May 2001. It led also to the filing of an affidavit in support sworn by the applicant on 8 March, an affidavit in opposition sworn by Mr. Opat on 20 March and another affidavit in opposition sworn by Mr. Dalton on 22 March 2002. Thus, we have to consider now the application, first, for orders to enable the applicant to appeal against the orders made on 2 November 2001 and, secondly, the application for orders to enable the applicant to appeal against the orders made on 9 May 2001. I take each in turn.
The summons filed on 23 November 2001
On the summons filed on 23 November 2001, the first question is the extension of time within which the applicant may seek leave to appeal from the orders made on 2 November. The applicant was indeed out of time in seeking leave to appeal, having filed the present summons on 23 November 2001. However, according to the affidavit of the solicitor (Ms Fraser) sworn on 30 November 2001, on 16 November the respondents were served, by way of facsimile, with an application for leave to appeal in the form of a draft summons, together with a copy of the notice of appeal. In her affidavit Ms Fraser claims that she was misinformed by staff in the Registry that the summons and the notice of appeal should be filed within seven days thereafter, when in fact the summons, seeking leave to appeal, should have been filed by 16 November. Not surprisingly perhaps, the respondents do not claim to have been prejudiced by the late filing and so there is no reason, at least on the face of it, to refuse the applicant the extension of time he needs, for seeking leave to appeal from the order of 2 November. I think that the extension of time should be granted, provided, of course, that leave to appeal is to be given. But whether that leave should be granted is an altogether different matter.
From the affidavits now filed in support of the application, it appears that the applicant has two main complaints. His first is that in his reasons for judgment of 2 November 2001 the learned judge made no reference to the two affidavits relied upon, of 8 October and 2 November, notwithstanding that it was these (claims the applicant) which contained the burden of his complaint about the omission on 9 May 2001 of the cause of action for misfeasance in a public office. But there is nothing in that point. As the applicant frankly concedes in the affidavit of 30 November “his Honour stood the matter down for a short period which I understood was to enable him to read such documents”. That no express mention of the affidavits is made in the reasons for judgment is then of no significance. His Honour had them before him and, consistently with his usual practice, I have no doubt but that they were read and, having been read, were taken into account. His Honour must be taken to have been of opinion that nothing in those affidavits justified the application being made to restore to the statement of claim the cause of action omitted from the pleading authorised by consent on 9 May 2001. Indeed, so much appears, I think, from his Honour's reasons for judgment in which he quotes specifically from the answering affidavits of Mr. Opat and Mr. Gregory in arriving at his conclusion that "the plaintiff cannot now resile from the agreement his counsel [Mr. Hayes] reached with counsel for the defendants on 9 May 2001." It cannot be in doubt that, in so saying, his Honour had regard to the contents of the affidavits filed by the applicant.
The applicant's more important complaint is that the judge did not give credence to his claim that the cause of action for misfeasance in a public office had been dropped from the pleading on 9 May without his consent or authority. The affidavit of 26 February 2002 contains a litany of complaint about the way in which successive lawyers allegedly promised the applicant assistance and then failed to deliver it. Perhaps the applicant has some cause for complaint in that regard: I do not know and I do not offer any opinion on it. But what is surely plain beyond argument is that Mr. Hayes was retained by the applicant to appear for him on 30 April and on 9 May 2001 and had authority to act in the matter of the then current appeal over re-pleading; that on 9 May the judge was formally told by the parties (and it matters not now whether he was told this by Mr. Hayes or by one of the other barristers) that there was agreement between the parties that the only cause of action being pleaded by the applicant was that of malicious prosecution; and that, in support of that, Mr. Hayes had signed on behalf of the applicant the minutes of consent orders that were handed up and on which the judge proceeded as requested. Those minutes included the recitals that preface the orders of 9 May as authenticated[1], and unless the agreement thereby evidenced can be put aside for some reason, it plainly stood in the way of the application to replead in order to restore the claim for misfeasance in a public office. At one stage an argument was adumbrated on behalf of the applicant that the agreement described to the court on 9 May related solely to the pleading then before the court and not to any future pleading, but I would reject such an argument: if the agreement reached between counsel on 9 May was that the plaintiff was no longer pleading the abandoned cause of action, in practical terms that must have meant that he would no longer seek to plead it, on 9 May or thereafter. Indeed, the question raised by the applicant on 2 November was not the scope of the agreement of 9 May, but whether he was bound by it.
[1]See [10] above.
In contending that on 2 November 2001 his Honour ought not to have regarded the applicant as bound by the agreement reached between counsel on 9 May, Mr. Corrigan, counsel for the applicant, pointed to the court's power to act in the face of a consent order in certain circumstances: see for example Logwon Pty. Ltd. v. Warringah Shire Council.[2] Of course it is well established that before an order has been perfected - and in this court that means before the order has been authenticated - the court may recall its order and refashion it, if it just to do so; but in this case, as Mr Corrigan accepted, the consent order of 9 May 2001 had been perfected by the time of the application on 2 November. The order having been perfected, the general rule is that the court is functus officio and has no power to recall the authenticated order, but to that general rule there are exceptions and Mr Corrigan sought to draw upon the first of the three categories of exception identified by Brennan, J. in Permanent Trustee Co. (Canberra) Ltd. (as executor of estate of Andrews) v. Stocks and Holdings (Canberra) Pty. Ltd.[3]:
"... those which are founded upon the inherent jurisdiction of the court to ensure that its procedures do not effect injustice; those which are authorized by statute; and those which override the general rule in order to give relief where the judgment is obtained by fraud or by an agreement which is void or voidable.” [Emphasis added]
One example of that first category is perhaps the self-executing order which is seen afterwards to operate in a manner which was not anticipated and so produce obvious injustice; for in such a case it is clear that at least an appellate court can intervene, after the order has been perfected, though no error is shown to have been made below: Freeman v. Rabinov[4]. Such a case is, however, a far cry from this and anyway in this instance the consent order made on 9 May was but a reflection of the agreement underlying it. However it was approached, the question for the judge on 2 November was whether the applicant stood precluded by that earlier agreement, not just the consent order, from attempting to restore to the pleading the cause of action for misfeasance in a public office apparently abandoned by agreement on 9 May. The applicant's present complaint is that he was not so precluded because that abandonment had been wrought without his consent or authority; he contends that the judge should have so held, allowing him to replead accordingly.
[2](1993) 33 N.S.W.L.R. 13 at 28-29 per Sheller, J.A.
[3](1976) 15 A.C.T.R. 45 at 48, as noted in Logwon at 28-29.
[4][1981] V.R. 539.
Prima facie at least, if this Court is to grant leave to appeal from the orders made on 2 November 2001, the applicant must demonstrate that the decision below is arguably attended by error. That focuses attention on the affidavits before the court on 2 November, rather than those filed subsequently. On 2 November the applicant was relying upon his affidavits of 8 October and 2 November 2001 and what counsel for the respondents has been quick to point out is that in neither affidavit is it said that Mr. Hayes, when consenting on behalf of the applicant to the orders which were made on 9 May 2001, acted contrary to his instructions. In so far as complaint is made at all it is rather that in consenting to a pleading from which misfeasance in a public office had been removed counsel acted in a way which, it seems, the applicant had not anticipated and for which he has since been unable to obtain from counsel any explanation. Reference may be made in particular to paragraphs 5 to 8 and 13 of the affidavit of 8 October.
In his affidavit of 8 October 2001 the applicant places some weight upon a note he wrote on the pleading of 9 May 2001 (before serving it, he was to say in a later affidavit, on the Victorian Government Solicitor in June[5]). In paragraph 9 of the affidavit of 8 October, he says:
"I wrote on the amended statement of claim, under my signature, that I would subsequently seek leave to amend the statement of claim by re-instating the cause of action against the third defendant ‘misfeasance in public office’, if I was unable to obtain a proper, or any explanation for its removal.”[6]
The emphasis is thus on the applicant's wanting some satisfactory explanation from counsel; it is not asserted in the note (any more than in the affidavit of 8 October) that counsel acted contrary to express instructions, which one might have expected if that had been the case. Mr. Corrigan sought to argue that the one was but a polite precursor to the other, but that is not so. If the applicant considered that the agreement of 9 May had been reached between counsel contrary to his express instructions to his own barrister so that the case had to be repleaded, he would surely have asserted so to the Victorian Government Solicitor in June; for if counsel had express instructions not to abandon the omitted cause of action he can only have mistaken his instructions or defied his client. Moreover, in the affidavit of 8 October the applicant asserts that he had had no success at all in his many attempts since 9 May "to establish the reason Mr. Hayes removed the cause of action against the third defendant" - and again the emphasis is on finding the reason why, rather than taking counsel to task for disobeying explicit instructions.[7]
[5]In paragraphs 98 and 99 of his affidavit of 26 February 2002, the applicant says that he wrote the note "before serving" the pleading on the Victorian Government Solicitor and that the note was "signed and dated 19 June 2001" (which, it might be inferred, was the date of service).
[6]That is a fair description of the words actually used; what was written is quoted in paragraph 98 of the affidavit of 26 February 2002.
[7]This is borne out by the letters themselves, written to Mr. Hayes at the time, which are exhibited to the applicant's later affidavit of 26 February, paragraphs 100 to 103.
Even more telling than the affidavit of 8 October is the affidavit of 2 November 2001 in which, after claiming that he would never have consented to the removal of the cause of action in misfeasance, the applicant describes how he promised to Mr. Hayes, his “absolute loyalty”. In paragraph 45, he asseverates this: that Mr. Hayes “said he would draft a proposed statement of claim, but I must give him absolute loyalty and do exactly as he directed. I agreed to his conditions”; and in paragraph 46, the applicant confirms having given to Mr. Hayes “blind loyalty”. This is not a complaint that Mr. Hayes acted contrary to instructions: at most it introduces a complaint that, in pursuing his instructions, Mr. Hayes acted in a way not anticipated by the applicant. It is only in the affidavit of 26 February 2002, filed in support of this application for leave to appeal, that the applicant first claims expressly that Mr. Hayes acted contrary to instructions given.
It is plain, then, that, as presented to the court on 2 November 2001, the complaint of the applicant was not shown to be that counsel acted contrary to instructions on 9 May 2001, but at most that he acted in a way not anticipated by the applicant. Mr. Hayes plainly had ostensible authority, so far as the other defendants were concerned, to act as he did, and perhaps for present purposes it would be enough that Mr. Hayes had that ostensible authority. That was the submission of Mr. Santamaria who urged that, the agreement being over matters of substance (as he put it) and not merely directions of a procedural kind, the agreement underlying the consent orders of 9 May, which had been perfected, could now be set aside only if the agreement (which was not tainted by fraud) was void or voidable on ordinary contract principles, a possibility denied by the existence of counsel's ostensible authority. In this respect he referred us to what was said in particular by the High Court in Harvey v. Phillips[8], and also to Marsden v. Marsden[9] and Spann v. Stanwell Pty Ltd[10]. I need not however embark upon the question whether these cases support the argument that the court is without power in a case like this to go behind an agreement made by counsel with ostensible authority, because even if we are permitted to go behind that ostensible authority and enquire into counsel's actual authority (as Mr Corrigan submitted we could), the applicant still fails; for the applicant did not make out a case before the judge on 2 November that Mr Hayes had been lacking in actual authority.
[8](1956) 95 C.L.R. 235 at 242-3.
[9][1972] Fam. 280 at 285.
[10][1984] 1 Qd.R. 29 at 35 and 39.
It is apparent, as already indicated, that by 9 May 2001 Mr. Hayes had been given by the applicant authority to act for him, at least for the purpose of the appeal brought from the Master in relation to repleading the statement of claim; counsel had demanded “absolute loyalty” and the client had agreed; and unless there was some limitation on the authority thus given (and surely such limitation would have to have been express as between counsel and the client), the applicant has no case now. In the course of argument Mr. Corrigan accepted that his case now depended upon showing that Mr. Hayes had acted contrary to an express instruction given him by the applicant not to abandon misfeasance in a public office. His difficulty, as already seen, is that no such case was shown on the affidavits relied upon by the applicant on 2 November; indeed in my opinion those affidavits were to the opposite effect.
In referring to the possibility of instructions to counsel not to abandon the misfeasance cause of action, I do not overlook that, in part, Mr. Corrigan rested his argument also on the submission that counsel had been instructed that the statement of claim be "amended only to the extent necessary to ensure compliance with the Rules and to conform with the reasons in the judgment of Master Evans dated 15 August 2000”[11]. However, as argued, this was no more than another way of putting the same submission: that is, that on 9 May, in agreeing to the pleading then authorised, Mr. Hayes acted contrary to instructions not to abandon the claim for misfeasance in a public office – and that is how I deal with the argument. I say only this in relation to the alleged instruction to make no change save to conform with the reasons given by the Master on 15 August 2000: as will be seen when I come to deal with the pleadings, to carry out that instruction it was necessary at least to remove from the statement of claim any allegation of misfeasance against the first defendant.
[11]Outline of Submissions, paragraph 6.4, counsel relying there upon the affidavit of 26 February 2002, paragraphs 45 and 51.
If then, as I have said, no case was made before the judge on 2 November 2001 that on 9 May counsel had disobeyed his instructions over the pleading, why, on this application for leave to appeal, should we entertain that submission when made by reference to material filed after 2 November? The claim that on 9 May 2001 counsel defied express instructions not to abandon the cause of action for misfeasance is made in the affidavit of 26 February 2002[12], and perhaps it is repeated, in effect, in the later affidavit of 8 March[13]. But on what basis can we have regard to that further evidence? Applicant’s counsel could not - and did not - claim that the material in those affidavits was even in part “fresh evidence” in the sense that it was not evidence available by the time of the hearing on 2 November: indeed it is quite apparent from the content of the later affidavits that they are but an attempt to add further detail to the case being earlier made. (For instance, the earlier assertion that the applicant gave “blind loyalty” to Mr. Hayes upon such being demanded, is described as no more than a promise not to engage other counsel in addition to Mr. Hayes: but that suggestion is novel and does not sit well with the earlier description of the conversation between the two men.) As the later affidavits seek only to add further detail to the case being made on 2 November 2001, I seriously doubt that we are entitled, on an application for leave to appeal, to have regard to the affidavits made after that date: certainly they cannot serve to show error on the part of the judge on 2 November because ex hypothesi they were not before him. Mr. Corrigan sought to argue that error below need not be shown when the court was being asked to remedy an injustice brought about by its own procedures, but even if that were relevant on this application for leave to appeal (and I am not at all clear that it is) the applicant still fails. That is because even if we were to have regard to all of the material now before us, including the affidavits filed this year, I would still not be satisfied that the applicant makes out a case, even an arguable case, that counsel was acting contrary to instructions. Although such is asserted in the later affidavits, it is but an assertion: there is no corroboration and I find the assertion not credible.
[12]Paragraphs 82, 94.
[13]Paragraph 23.
I say that for a number of reasons. First and foremost, no such case was made out on 2 November, as I have said. Mr Corrigan sought to explain this omission by submitting that the applicant had been taken by surprise by Mr Gregory's affidavit of 1 November 2001 in which the deponent, when describing the agreement between counsel which led to the consent orders of 9 May, refers to the applicant's abandoning any claim for misfeasance in a public office against the third and fourth defendants as the price offered by applicant's counsel for the consent of those defendants to the then proposed pleading. Such an agreement, submitted Mr Corrigan, could not reasonably have been anticipated by the applicant before reading Mr Gregory's affidavit, but I do not accept that. The applicant's affidavits of 8 October and 2 November 2001 reveal that he was soon alive to the omission of the relevant cause of action and that he set out to find out why his counsel had agreed to it[14]. And in an early paragraph in the affidavit of 8 October[15] he refers expressly to the pleading of 9 May as the product of an agreement between counsel as related to him by Mr. Hayes, apparently in the course of a discussion between them at the time the amended pleading was first handed to him[16].
[14]In paragraph 4 of the affidavit of 8 October 2001 it is implied that the applicant was given a copy of the order on or about 23 May. It was on 19 or 20 June 2001 that he filed and served the statement of claim authorised by that order of 9 May.
[15]Paragraph 6.
[16]See the context provided by paragraphs 4, 5 and 7.
Next, the statement of claim which was authorised by consent on 9 May was filed by the applicant on 19 or 20 June 2001, after he became aware of the omission of the claim of misfeasance in a public office; the only complaint then made was as noted on the copy delivered to the Victorian Government Solicitor, and I have already dealt with that. Then there were attendances before the Master on 20 June 2001 and 17 July 2001 in response to summonses taken out by the first defendant. On the second occasion the applicant appeared in person; and on the first occasion, though not present on 20 June, he formally signified his consent to the orders sought in writing on 19 June. The order made by Master Evans on 20 June 2001 recited expressly that the plaintiff had not yet filed or served the amended statement of claim referred to in the order made on 9 May and that the orders were “consented to on the footing that those steps will be taken” – and apparently they were then taken. Orders were made on 20 June for the delivery of defences and for mutual discovery and inspection; and the orders on 17 July extended the time for defences, fixed time for reply and extended time for discovery. No complaint was made on 20 June or 17 July that the orders procured by consent on 9 May had been procured contrary to the express instructions of the applicant to his barrister.
Finally, upon examination the allegation that counsel acted contrary to instructions is by no means so straightforward as it seems, even when made on 26 February 2002. A comparison of the pleadings relied upon by the applicant in making the allegation itself gives rise to some doubt about the veracity of the claim. For the sake of contrast only, reference may be made first in this connection to the proposed pleading before Master Evans on 22-23 June 2000 (and the subject of his reasons for judgment of 15 August 2000). That pleading (a copy of which is exhibit MS6 to the affidavit of 8 October 2001) contained claims under four quite distinct headings: “Malicious prosecution”, “Misfeasance in public office” (as then pleaded against the first defendant) “Misfeasance in public office” (pleaded against the third defendant) and "Conspiracy"[17].
[17]Interestingly, there was no specific plea that the applicant had suffered any loss and damage and no pleading of a case for aggravated or exemplary damages; that came later.
In describing (in the affidavit of 26 February 2002) the instructions allegedly given to counsel, the applicant refers to a pleading variously described, but which it appeared, in the course of argument, probably was prepared early in April, was made available to the other parties and revised in consequence later in April, and then was filed by the applicant on 3 May 2001[18]. I call this "the April pleading" (if only to distinguish it from the pleading that was authorised on 9 May) and I refer in particular to exhibit MS7 to the affidavit of 26 February 2002. In describing the instructions allegedly given to Mr. Hayes, the applicant asserts that he told his barrister not to abandon anything in the April pleading[19]. (Indeed, as noted earlier[20], the contention now is that the applicant told Mr. Hayes to make no changes save to bring the pleading into line with the rules of court and the reasons for judgment of Master Evans delivered on 15 August 2000.) The April pleading, however, is deficient in a number of respects and in particular with regard to misfeasance in a public office.
[18]See paragraphs 75 to 78 and 113 of the affidavit of 26 February 2002, together with Exhibit MS1 (itself an affidavit of Mr. Berthelsen sworn on 22 January 2001) and Exhibit MS7; and see also paragraphs 13 and 14 of the affidavit of 8 March 2002.
[19]Paragraph 82 of the affidavit of 26 February 2002; cf. paragraphs 45 and 51.
[20]See [24] above .
First, the only reference in the April pleading to that cause of action for misfeasance is to be found in the heading "Malicious prosecution/Misfeasance in public office". This heading is used twice, first to introduce the pleading in relation to what are called "the initial charges" and, secondly, to introduce the pleading about "the further charges". Under the first use of the heading, allegations of misconduct are made separately of the first defendant[21] and then of the third defendant[22]. Under the second use of the heading, the allegations are of misconduct by the first defendant only[23]. There is no specific allegation of the holding of public office as such, or of misfeasance so-called: contrast Little v. Law Institute of Victoria[24]. Nor is there any pleading of loss and damage, save as the result of the malicious prosecution of the applicant by the defendants[25]. Add to this that it had already been ruled more than once that the applicant was not entitled to plead misfeasance in a public office against the first defendant (as distinct from the third) and the imperfections of the April pleading are obvious.
[21]In paragraphs 7 and 10.
[22]In paragraph 11.
[23]In paragraphs 15 and 21.
[24][1990] V.R. 257 at 269.
[25]See paragraphs 12 and 22.
When the April pleading is compared with the pleading authorised on 9 May[26], it becomes apparent that what was done was, first, to delete an introductory allegation[27] that the first defendant was a member of the Victoria Police Force (which was not immediately relevant to the claim of misconduct while on secondment to the National Crime Authority); and, secondly, to remove all reference to "misfeasance in public office" - that is, by shortening the two headings in which that phrase appeared and confining them to malicious prosecution only. The only other change of significance appears to have been the deletion of two paragraphs in the April pleading which were headed "Aggravated damage"[28] (although, interestingly, when seeking to replead on 2 November 2001 in order to "restore" the pleading of misfeasance in a public office, the applicant did not seek, it seems, to restore the pleading of "aggravated damage"[29]). The complaint that, in deleting the references in the April pleading to "misfeasance in public office", counsel was acting contrary to express instructions, not to remove anything included in the April pleading, becomes the more difficult to accept, given that in the April pleading that cause of action was pleaded altogether insufficiently, if indeed it was pleaded at all, and, if pleaded, was alleged against the first defendant as well as the third, contrary to current rulings. And the pleading proposed by the applicant to the judge on 2 November 2001 provides a marked contrast to the April pleading[30].
[26]Exhibits MS2 and MS8 to the affidavit of 26 February 2002 (and also Exhibit MS2 to the affidavit of 8 October 2001).
[27]Being paragraph 2 of the April pleading.
[28]Paragraphs 13 and 23.
[29]See the draft pleading put before the judge on 2 November 2001, which is exhibit MS7 to the affidavit of 8 October 2001.
[30]That pleading (Exhibit MS7 to the affidavit of 8 October 2001) recast the statement of claim substantially. Paragraphs 6 to 8 were headed “Malicious prosecution (the initial charges)”, paragraphs 9 to 17 “Malicious prosecution (the further charges)”, and paragraphs 19 to 20 “Misfeasance in public office”. There were separate allegations of loss and damage, first in relation to malicious prosecution (paragraph 18) and separately (and for the first time) in relation to the allegations of misfeasance (paragraph 21).
In the light of the foregoing considerations, I see no reason to give credence now to the belated claim that on 9 May 2001 senior counsel of considerable experience acted in defiance of instructions expressly given him by the client. It follows that, even if we were to have regard to all of the material now filed, the applicant fails to make a case on the facts for this court's intervention to "correct" the orders of 2 November 2001 - which makes it unnecessary for us to decide whether the other questions concerning this court's power to intervene could be resolved favourably to the applicant. On the question of the court's power to intervene after an order made as the result of agreement inter partes has been perfected, I simply note that the cases to which we were referred, in addition to those already mentioned, included Neale v. Gordon Lennox[31], Shepherd v. Robinson[32], Keeble v. Guardian Trust & Executors Co. of NZ Ltd.[33] and Waugh v. H.B. Clifford & Sons Ltd.[34] But in my opinion, no case for leave to appeal against the orders of 2 November 2001 has been made out and accordingly, although I would otherwise have been minded to grant the applicant an extension of time for seeking that leave, no purpose would now be served by granting it. The summons filed on 23 November 2001 should be dismissed.
[31][1902] A.C. 465 at 470, 473.
[32][1919] 1 K.B. 474.
[33][1976] 2 N.Z.L.R. 338.
[34][1982] 1 Ch. 374.
The summons filed on 8 March 2002
By the second summons, that of 8 March 2002, the applicant seeks to cast back for the purposes of appeal to the orders of 9 May 2001, but there is no basis for us to grant an extension of time for seeking leave to appeal or indeed to grant leave to appeal from the earlier orders. Of course the extension of time for seeking leave to appeal is vigorously opposed, as coming far too late in the piece to be allowed. If, as the applicant claims[35], he was in court on 9 May 2001, then he must have heard what was said and should have pursued promptly any claim he had that what was done was done without his consent or authority. Alternatively if, as at least one deponent asserts, the applicant was not in court on that day, none the less he became aware of what had happened well before[36] 16 November when he served the first summons; and yet nothing is said there of any wish to appeal against the orders of 9 May, as distinct from the orders of 2 November.
[35]Affidavit of 26 February 2002 paragraphs 88 to 91.
[36]According to his affidavit of 8 October 2001 the applicant was unable to obtain a copy of order of 9 May 2001 "until about 23 May 2001"; see also the affidavit of 26 February 2002, paragraph 92. According to his affidavit of 26 February, paragraphs 97 to 99, the applicant filed the amended pleading on 20 June 2001, and dated his note on the copy he delivered to the Victorian Government Solicitor, 19 June 2001.
In answer, Mr Corrigan submitted that it was only on 2 November 2001 that it became apparent that the applicant might have to appeal against the orders of 9 May, in as much as the judge appeared to regard those orders as precluding his granting the application before him for leave to amend the pleading in order to restore the abandoned cause of action. As already indicated, I am not yet clear that it was those orders of 9 May that stood in the way of the applicant on 2 November, especially as the application on 9 May was purely interlocutory and the directions given were procedural; arguably it was the underlying agreement of 9 May that stood against the applicant, rather than any order then made for repleading. If that is correct, the applicant might have had no need to appeal against the orders of 9 May: it might well have been sufficient to apply, as he did, for leave to file and serve a further amended pleading and at that point to establish, if he could, that the agreement made between counsel on 9 May should not be regarded as standing in his way.
Whether this last step must have been taken by means of a separate proceeding (as perhaps was desirable) or could have been done by the trial of an issue within the application for leave to replead (perhaps at the direction of the judge on 2 November 2001), I do not pause to consider - although, if I might add this, it seems to me that it was very desirable for any significant issue of fact to be determined in the Trial Division rather than brought unresolved before this court on appeal. But I do not consider the question of procedure further, simply because it is apparent from what has been said already in relation to the summons of 23 November 2001 that there is other reason anyway why the applicant must fail in his application for leave to appeal against the orders of 9 May. I refer to his failure, even on all of the material now filed, to establish a case on the facts, that counsel acted on 9 May contrary to express instructions given him by the applicant not to abandon the cause of action for misfeasance in a public office.
There is perhaps less objection in the case of this second summons (of 8 March 2002) to the applicant's relying upon all of the material filed; for it is obvious that the applicant is not seeking here to make out any case of error below. Mr. Corrigan accepts, as he must, that the judge did not err on 9 May 2001, faced, as his Honour was, with consent orders signed by all counsel. Instead the case now to be made depends upon the applicant's establishing, first, that the agreement underlying the consent orders was made contrary to counsel's express instructions and, secondly, that on that account the court can relieve against the consequences of the agreement reached between counsel by permitting the applicant now to replead in order to restore what was removed on 9 May. There are two steps in this, and in my opinion the applicant fails at the first, so that not only is it unnecessary to resolve the question of the court's power to relieve against the consequences of the agreement apparently reached on 9 May, it is also unnecessary for us to resolve the question whether, if the applicant was right on the facts, an appeal was required against the orders of 9 May or only against the orders of 2 November. Like the question of the court's power, the procedural question is best left to a case in which it must be decided.
Accordingly, I would dismiss the summons of 8 March 2002, as I would the earlier.
Conclusion
Before leaving the matter, I mention the draft pleading dated 25 March 2002 which, somewhat irregularly, was put before the court on behalf of the applicant, independently of any affidavit. After the hearing on 1 March 2002, and some criticism then of the proposed notice of appeal, it appears that fresh notices of appeal were prepared, one in relation to the orders of 2 November 2001 and the other in relation to the orders of 9 May 2001. In both, the orders sought, should the appeal succeed, included an order that the plaintiff have leave to re-plead according to a draft pleading “dated 25 March 2002”. The respondents made inquiry of the applicant's solicitor about this new pleading, and hence the pleading which has now been placed before the court.
In the new draft pleading, paragraph 2 of the April pleading is restored: it is again said that “the first defendant was a member of the Victoria police force”. More importantly, in paragraph 3 it is alleged that the first defendant “at all material times held public office” and the like allegation is made of the third defendant in paragraph 5. The heading “Malicious prosecution” has become once more “Malicious prosecution/Misfeasance in public office”, first in relation to “the initial charges” and then in relation to “the further charges”: see the headings preceding paragraphs 7 and 15. There are other changes too, but they are not presently relevant; for I mention the pleading dated 25 March 2002 only for the sake of making the following two comments on it.
First, if this pleading is intended to raise a case of misfeasance in a public office against the first defendant, the applicant has been denied the right to plead such a case against that defendant more than once in the course of the interlocutory proceedings over the past years – a point convincingly demonstrated in the written outline of submissions prepared on behalf of the first respondent. Nor is there any contest about it; for Mr. Corrigan frankly accepted that the applicant could not now plead such a case against the first defendant. Let that be an end to it.
Secondly, the relevance of the pleading dated 25 March 2002 is not immediately apparent. It seems to me that, whether or not error on 2 November 2001 had to be established in order to obtain leave to appeal, there was no reason to suppose that the applicant would not be held, at least at first, to the pleading being
proposed on 2 November (Exhibit MS7 to the affidavit of 8 October 2001). When asked to explain the significance of the new draft pleading, Mr. Corrigan said that it would become relevant if and when an appeal was allowed, the orders made below were set aside and this Court came to consider what order should be made in substitution. In short, the fresh pleading would become relevant only if and when this Court came to deciding in what form to authorise an amended pleading on behalf of the applicant. Obviously, then, the pleading of 25 March 2002 is not relevant at this stage when we are considering only whether the applicant should, in effect, be permitted to appeal out of time from the orders of 2 November 2001 and further or alternatively from the orders of 9 May 2001.
As I have said, I would dismiss both the summons filed on 23 November 2001 and the summons filed on 8 March 2002.
BUCHANAN, J.A.:
I agree that each application should be dismissed for the reasons stated by Phillips, J.A.
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