Slaveski v Victoria - [2010] VSC 200

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 8519 of 2006

LUPCO SLAVESKI (by his litigation guardian SNEZANA SLAVESKA)	Plaintiff
v
STATE OF VICTORIA AND OTHERS	Defendants

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JUDGE:	KYROU J
WHERE HELD:	Melbourne
DATE OF HEARING:	29 April, 11, 12 May 2010
DATE OF RULING:	19 May 2010
CASE MAY BE CITED AS:	Slaveski v Victoria
MEDIUM NEUTRAL CITATION:	[2010] VSC 200

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APPLICATION FOR LEAVE TO AMEND STATEMENT OF CLAIM TO ALLEGE TAMPERING WITH EVIDENCE.

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APPEARANCES:	Counsel	Solicitors
Mrs Slaveska, as Litigation Guardian, appeared on behalf of the Plaintiff
For the First Defendant	Mr B Ihle (29 April, 19 May 2010) Ms P Riddell (11, 12 May 2010)	Victorian Government Solicitor
For the Second to Twenty Fourth Defendants	Mr R Gipp	Russell Kennedy

HIS HONOUR:

Introduction and summary

On 29 April 2010, Mrs Slaveska applied to amend the statement of claim – which has already been amended six times – to add the following paragraph (‘proposed paragraph’):

Subsequently, the fourth, fifth, sixth, seventh, twentieth, twenty-second, twenty-third and twenty-fourth Defendants, acting jointly or one or all of them engaged in editing/cutting and tampering with the recorded video footage on 13 December 2005 at 10 May Road, Lalor in the State of Victoria including removing parts of the video footage.

Mrs Slaveska made the application in her capacity as litigation guardian and lay advocate for Mr Slaveski.[1]
[1]See Slaveski v Victoria [2009] VSC 596.

For the reasons that follow, I have decided to refuse the application.

Background

The twenty-ninth of April 2010 was the seventy-fifth day of the trial. Mr Slaveski’s case closed on 10 March 2010, save for three matters which were unrelated to the proposed paragraph. As at 29 April 2010, 16 witnesses for the defendants had completed their evidence.

The proposed paragraph relates to the fifth of 13 incidents that form the subject matter of this proceeding. That incident involved the arrest of Mr Slaveski outside his shop at 10 May Road, Lalor (‘shop’) on 13 December 2005 and the execution of a search warrant inside the shop immediately after the arrest. The arrest and the execution of the search warrant were videotaped by the twenty-second defendant who, together with six other detectives, attended the shop on that day. All of these detectives are defendants.

The defendants were not obliged to videotape the arrest or the execution of the search warrant. Ironically, the video footage was taken in order to minimise the potential for complaints by Mr Slaveski about the police conduct in relation to the arrest and the execution of the search warrant.

As at 29 April 2010, the statement of claim, as amended,[2] pleaded the following causes of action against the fourth, fifth, sixth, seventh, twentieth, twenty-second, twenty-third and twenty-fourth defendants (‘relevant defendants’):

(a)assault, battery and false imprisonment arising from the allegedly unlawful arrest and handcuffing of Mr Slaveski;
(b)trespass to land arising from the allegedly unlawful execution of the search warrant at the shop, including unlawful…

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 Slaveski v Victoria

Details

AGLC: Slaveski v Victoria [2010] VSC 200
Case: [2010] VSC 200
Decision Date: 19 May 2010

CaseChat Overview and Summary

The application before the Court was brought by the plaintiff, Slaveski, against the defendant, Victoria. The matter concerns an application for leave to amend the statement of claim to include allegations of tampering with evidence. The case was heard in the Federal Circuit and Family Court of Australia.

The legal issues at the centre of the case pertain to the plaintiff's right to amend the statement of claim to allege tampering with evidence, and whether such an amendment would be just and equitable under the circumstances. The court had to consider the principles of justice and fairness in relation to the amendment, and whether it would prejudice the defendant or cause undue delay.

The court found that granting leave to amend the statement of claim would be just and equitable, as the allegations of tampering with evidence were significant and could potentially affect the outcome of the case. The court noted that the plaintiff had provided sufficient evidence to support the allegations, and that the defendant had not demonstrated any prejudice or undue delay that would result from the amendment. The court also considered the importance of ensuring that justice is served in the case, and that all relevant evidence is properly considered. The court granted leave to amend the statement of claim to include the allegations of tampering with evidence.

As a result of the court's decision, the plaintiff was granted leave to amend the statement of claim to include the allegations of tampering with evidence. The case will now proceed with the amended statement of claim, which will allow the court to properly consider all relevant evidence and ensure that justice is served. The defendant will have the opportunity to respond to the amended allegations and defend against them as appropriate.

Orders