Tahche v Abboud (No 1)
[2002] VSC 36
•1 March 2002
e
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
COMMON LAW DIVISION
No. 6041 of 1997
| TAHCHE | Plaintiff |
| v | |
| ABBOUD AND OTHERS | Defendants |
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JUDGE: | SMITH J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 18 October 2001 | |
DATE OF JUDGMENT: | 1 March 2002 | |
CASE MAY BE CITED AS: | Tache v Abboud No.1 | |
MEDIUM NEUTRAL CITATION: | [2002] VSC 36 | |
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Practice – joinder of parties – amendment of pleadings – statute barred claims – Enever v R – Tort – negligence –misfeasance in public office – duty owed by police to convicted persons to disclose information
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr. J. Gorton | Law Partners |
| For the 4th Defendant | Mr. J. Ruskin QC | Kenna Croxford & Co |
| For the 5 – 6 Defendants | Mr. M. Wheelahan | Phillips Fox |
| For the 2, 3, 9, 10th, 11 and 14th Defendants | Mr. J. Philbrick | Victorian Government Solicitor |
HIS HONOUR:
The applications
There are three applications before the Court:
Plaintiff’s summons
(a)By summons dated 13 July 2001 the plaintiff seeks leave to add eight defendants to the proceedings and seeks consequential orders for leave to amend the statement of claim. The proposed defendants are police officers; Detective Inspector Waterman, Detective Sergeant Pettet, Detective Senior Sergeant McKenzie, Senior Sergeant Blackwell, Detective Senior Constable Berry, Senior Detective Hutton, Inspector Willis and Superintendent Pritchard (the other police officers). This application was, as a result of directions, served on several of the proposed defendants. They oppose the application. They do so on the grounds that the proposed causes of action are statute barred by s5 (1) of the Limitation of Actions Act 1958(Vic) and that the proposed pleadings do not disclose a cause of action in negligence or for misfeasance in a public office as alleged.
Summons of the fifth and sixth defendants
(b)By summons dated 17 August 2001 the fifth and sixth defendants seek summary judgment against the plaintiff on the basis that the proceedings brought against them were brought more than six years after the cause of action alleged against them accrued.
Summons of fourth defendant
(c)Finally by summons dated 3 September 2001, the fourth defendant seeks leave to amend its defence to rely upon the decision in Enever v R (1906) 3 CLR 969 in relation to each person for whose conduct it is alleged to be liable. The persons concerned are the second and third defendants, the fifth and sixth defendants, Dr Young, a forensic physician with the Office of Forensic Medicine and the above mentioned other police officers.
In each instance, the fourth defendant now wishes to plead that the persons named for whose conduct it is alleged to be liable, were
“charged with a discretion and responsibility in the execution of independent duties”
and that it is therefore not liable for their acts and omissions in carrying out such duties.
Tests to be applied in the applications
As to the joinder application the plaintiff must establish that the joinder
“is necessary to ensure that all questions in the proceeding are effectually and completely determined and adjudicated upon” [1]
or that the proposed defendants are persons
“between whom and any party to the proceeding there may exist a question arising out of or relating to or connected with any claim in the proceeding which it is just and convenient to determine as between the person and that party, as well as between the parties to the proceeding”.[2]
[1]Rule 9.06(b)(i)
[2]Rule 9.06(b)(ii)
It was common ground that in relation to the plaintiff’s application to join the additional defendants and the application for summary judgment by the fifth and sixth defendants, the test to be applied is essentially the same – that is, whether the plaintiff’s case is arguable.
So far as the fourth defendant’s application is concerned, that application is presumably made under Rule 36.01 which provides
“36.01(1) For the purpose of determining the real question and controversy between the parties to any proceeding, … , the court may at any stage order that any document in the proceeding be amended or that any party have leave to amend any document in the proceeding.”
Background to the Applications
It is common ground that on 22 August 1991 the first defendant, Sammia Abboud, reported that she had been raped three days earlier in a revenge rape by a cousin, the plaintiff, Robert Tahche. Charges were laid against the plaintiff. He was committed to trial in committal proceedings commencing on 10 December 1991. On 23 March 1992 the trial commenced. On 30 March 1992 the plaintiff was convicted.
It appears to be common ground that, during the trial, Ms Abboud told the second defendant and fifth and sixth defendants and the proposed thirteenth defendant that another cousin, Charlie, had also raped her. The plaintiff alleges that that information was not conveyed to him or his legal representatives. The defendants, however, allege that the fifth and sixth defendants conveyed the information to the plaintiff’s counsel.
On 13 April 1992 the plaintiff was sentenced to a term of imprisonment of 14 years with a minimum term of 11 years. This sentence was increased by the Court of Criminal Appeal on 11 August 1992 to a maximum sentence of 16 years with a minimum term of 13 years.
It appears to be common ground, and there is evidence, that subsequently the plaintiff, with the assistance of his family, sought to have the investigation re-opened. In addition, the police received a number of complaints from Ms Abboud about being raped by Charlie after the plaintiff’s conviction. Issues arose whether the injuries complained of in relation to those alleged rapes were deliberately self-inflicted and whether the allegations of rape were true. There was also an issue as to whether the wounds were similar to those attributed to the plaintiff.
It also appears to be common ground, and there is evidence, that on 10 May 1994 there was a meeting at Broadmeadows (the Broadmeadows meeting) of a number of people including police, doctors, a psychologist and a representative of the Ombudsman to consider what action should be taken. It was chaired by the proposed seventh defendant, Waterman. The other proposed defendants are also alleged to have been present. The evidence suggests that some only were present.
The plaintiff alleges that on 23 May 1994 the proposed seventh defendant, Waterman sent a memo[3] to Sergeant McKenzie referring to the above issues and also to an issue as to whether the condition of Abboud’s vagina and her alleged continuous rapes were at variance. The memo, which is in evidence, stated
“I require you personally to fully investigate the facts of these sets of allegations and to make comparisons into the allegations as raised by Abboud to the various medical centres, doctors, social workers etc. To do this you will be required to read all the relevant files already in existence, speak to medical staff in particular Dr Sutherland and Dr Jappie. In short I expect you to carry out a thorough and in depth investigation of all matters raised. At the conclusion I require you to make recommendations as to whether or not there is sufficient similarity between the two sets of allegations that may enable the department to approach the Director of Public of Prosecutions in order to ask for a review of the trial relating to Robert Tahche”.
McKenzie was asked to report the results of his enquiry “within three months. (20/08/94)”. No evidence has been produced to suggest such a report exists.
[3]JW 3.
It appears to be common ground, and there is evidence, that in January 1995 the plaintiff engaged his present solicitor, Mr Willets, to act for him in his correspondence with the Ombudsman. Mr Willets wrote to the Ombudsman on 24 January 1995 informing him that he was acting. On 27 January 1995 the Ombudsman advised him that he was investigating the conviction of the plaintiff, that a person (unidentified) had made false allegations against another person (who also was unidentified) that there may be an implication that police officers (also unidentified) may have acted improperly or incompetently and that he was awaiting a report from the Victoria Police. In March 1995 Mr Willets was informed by the Ombudsman that the matter was being referred to the Director of Public Prosecutions for further investigations and that the Ombudsman was forwarding all his documents to the Director of Public Prosecutions.
Through the early months of 1995, Mr Willets unsuccessfully sought documents from the Ombudsman and from the Director of Public Prosecutions. On 16 May 1995, however, Mr Willets met with Mr Danos and was permitted to peruse three documents. The first was an interview with Ms Abboud in which she admitted to lying about being raped by Charlie. The other documents comprised reports from two doctors: Dr Jappie (dated 10 February 1995) and Dr Sutherland (dated 7 February 1995) who had examined Ms Abboud on several occasions.
Between 16 May 1995 and 30 June 1995, Mr Willets sought the release of documents which he suggested were in the possession of the DPP.
On 30 June 1995 Mr Willets received from the DPP a seven page list of documents held by the DPP. In early July 1995 he received copy documents from the DPP including a transcript of the Abboud interview on 19 April 1994 in which she admitted that the accusations she had made against Charlie were false. The list did not include, and Mr Willets did not then receive, copies of the transcript of the Broadmeadows meeting or the memorandum from Waterman to McKenzie.
On 27 July 1995 the plaintiff was granted bail. On 27 September 1995 his conviction was quashed. On 13 October 1995, a nolle prosequi was filed by the Director of Public Prosecutions.
By writ dated 27 June 1997, the Plaintiff commenced proceedings against Ms Abboud, the two police officers associated in the original investigation, Stephen Azarnikow and Stephen Payne, and the State of Victoria (the fourth defendant). In the course of obtaining discovery the plaintiff received two affidavits of documents from the fourth defendant. The first, dated 17 June 1998, gave discovery of documents in the possession of the Victoria Police. The second affidavit, dated 31 July 1998, gave discovery of documents in the possession of the Department of Justice of the State of Victoria. It covered documents held by the Director of Public Prosecutions, the Crimes Compensation Tribunal, the Ombudsman and the Internal Investigation Department. In a number of instances privilege was claimed - in particular, the documents held by the Ombudsman and the Internal Investigations Department. Both affidavits, however, listed the transcript of the meeting of 10 May 1994 and the first affidavit listed the memorandum of 23 May 1994 from Waterman to McKenzie. The list of documents in the affidavit filed by the Secretary of the Department of Justice, including DPP files for which privilege was not claimed, included statements by several police officers, doctors, a psychologist, forensic scientists, a counsellor and by Ms Abboud and in particular, a transcript of the Broadmeadows meeting.
The plaintiff’s application to join defendants
The plaintiff seeks to join the following people on the basis of roles played by them at the Broadmeadows meeting held on 10 May 1994 and other actions:
(a)Detective Inspector Waterman on the basis that he chaired the meeting and, as noted above, by memorandum of 23 May 1994, sought a report from Detective Senior Sergeant McKenzie on whether the police department should approach the DPP to seek a review of the plaintiff’s trial.
(b)Superintendent Pritchard on the basis that he provided a report dated 24 January 1994 to the Chief Superintendent “I” District.
(c)Detective Senior Constable Berry on the basis that he was present at the meeting and provided a report on 19 December 1994.
(d)Inspector Willis on the basis that he reviewed Berry’s report and wrote his own report on 18 January 1995 to the Superintendent “I” District.
(e)Senior Sergeant Mackenzie on the basis that he was present at the meeting and was asked by Waterman to report (see above).
(f)Senior Sergeant Blackwell on the basis that he was present at the meeting and conducted the interview of the first defendant in which she admitted that she had made up the allegations against Charlie.
(g)Detective Sergeant Pettet on the basis, inter alia, that he became aware of allegations made during the trial by the first defendant that she had also been raped by Charlie and was aware of Dr Jappie’s scepticism of the first defendant’s claim made in 1993 that she had been raped by Charlie.
(h)Senior Detective Hutton on the basis that he was present at the meeting.
Thus Waterman, Berry, MacKenzie, Blackwell and Hutton are said to have been present at the Broadmeadows meeting. This appears to be borne out by the transcript of that meeting. In addition, as noted above, there is evidence that Waterman sought a report from MacKenzie subsequent to the meeting about whether the DPP should be approached to review the plaintiff’s trial. There is, however, no evidence that MacKenzie supplied such a report. There is evidence that Pritchard, Berry and Willis supplied reports.[4] They are exhibited to the affidavit material and appear to concern primarily the issue of whether the first defendant, Ms Abboud, should face criminal proceedings over her allegedly false reports of rape by Charlie. It should be noted, however, that Willis in a report to Pritchard, as Superintendent “I” District No. 2 Division Broadmeadows, noted that
“The conflicting evidence of (sic) given by doctors is at the core of concerns regarding ABBOUD’s complaint. It challenges the veracity of her evidence and there is a suggestion that it may effect the evidence of the previous trial involving Robert TAHCHE.”
[4]Berry, 14/12/94, JW5; Willis, 18/1/95, JW6; Pritchard, 24/1/95, JW4.
The report then referred to the conflicting evidence, the legal opinion of Sergeant Lithgow of Broadmeadows Prosecutions Office advising against prosecution on the basis that to proceed with the prosecution would highlight impropriety and breach of s464 Crimes Act 1958 in the obtaining of admissions from Abboud. In its conclusions, the report indicated that he did not propose to authorise prosecution of Abboud for making false allegations. It noted concerns as to the “voluntariness” of the original report and breaches of s464 Crimes Act 1958. It also listed a lack of other evidence to support or corroborate the charge and the “differing medical opinion” about alleged “self inflicted injuries”. It immediately thereafter stated, however, –
“16.I do not believe that the matters canvassed in this file in any way affect the outcome of the Crown vs TAHCHE, Robert. The only issues that could be said to be in any conflict is the varying medical opinion.”
According to the exhibited documents, Superintendent Pritchard, in reporting to the Chief Superintendent, “I” District Broadmeadows[5] attached the brief of evidence against Sammia Abboud for a false report to police charge and indicated he was in accord with the findings of Willis, Berry and Lithgow. In noting the main issues, the report included the reference to “Conflict of medical opinion”. It concluded that there were I.I.D. inquiries proceeding and directed the file be referred to I.I.D. It did not specifically address the view expressed in the Willis report that nothing, in his opinion, in any way affected the outcome of the case against Robert Tahche the plaintiff.
[5]JW 4
The Allegations Against The Proposed Defendants
It is proposed to allege against each of the above officers that they were under a duty[6]
[6]para 25A
“promptly to disclose to the plaintiff, alternatively to the DPP, information of which they were aware that;
(a)was or would have been relevant to the defence of the alleged revenge rape or otherwise was or would have been required to be disclosed for the plaintiff to have had a fair trial; or
(b)was relevant to any application by the plaintiff to have his conviction set aside or that indicated that the plaintiffs conviction was or might have been unsafe or a miscarriage of justice or otherwise liable to be set aside on the application of the plaintiff.”
In the particulars it is alleged that the duties were imposed by the law.
The alleged obligation to disclose appears to be one alleged to continue so long as the plaintiff remained in gaol.
In the proposed pleading it is further alleged[7] that they, along with other defendants, knew or ought to have known that if they did not comply with that duty, the plaintiff might remain convicted and in gaol when he might otherwise have been able to have his convictions set aside and to be released from gaol and that the plaintiff thereby suffered loss and damage.
[7]para 25B
On the basis of the above allegations it is alleged[8] that the proposed defendants owed to the plaintiff
“a duty to take reasonable care to ensure that they promptly disclosed such information to him or his legal representatives or, alternatively, to the DPP and that they breached that duty.”
[8]para 26
Again the duty appears to be one alleged to exist as long as the plaintiff remained in gaol.
In proposed particulars of the alleged breaches of duty[9] it is alleged that all were present at the meeting chaired by Inspector Waterman in May 1994 where the issues were considered, inter alia, of the unreliability of the evidence of the first defendant, the conflicting medical opinions then existing and the “unsafety” of the plaintiffs conviction. Consideration was given, it is alleged, as to whether or not to inform the DPP. It is alleged that the proposed defendants did not promptly inform the plaintiff or his representatives or the DPP of that information. It is also alleged that it was decided at that meeting to inform the DPP of the disparity in the doctors’ stories but an intention was otherwise evinced to actively conceal from the plaintiff and the DPP information available that suggested that the first defendant was an unreliable witness, that she had made false reports containing allegations against Charlie Tahche similar to those made against the plaintiff, that she had later retracted those allegations, that she had engaged in self-mutilation to cause wounds similar to those said to have been caused by the plaintiff and that she suffered from Munchausen’s syndrome or generally that the plaintiffs’ conviction might be unsafe.
[9]para 27
It is also proposed to plead that Waterman requested a report from MacKenzie on about 23 May 1994 as to whether or not the DPP should be informed of the first defendant’s unreliability and that no such report was obtained or provided. As noted above, at present there is no evidence of any such report even though discovery has occurred of documents in the possession of the Police and the DPP. The proposed pleading alleges that the DPP was not informed of the above matters until 1995.
As to the proposed thirteenth defendant, Pettet, the plaintiff proposes to allege that he became aware prior to or during the trial that the first defendant claimed to have been raped by her other cousin Charlie as well as by the plaintiff and that he did not inform the plaintiff or his family or legal representatives of this fact or ensure that the plaintiff or his family or legal representatives were so informed. It would also be put that the proposed seventh to fourteenth defendants were aware of the matters within the knowledge of the second defendant and failed to inform the plaintiff or his lawyers or his family or the DPP of those matters.
The plaintiff, relying on similar allegations, seeks to make a claim against the proposed defendants for misfeasance in a public office.
Plaintiff’s reasons for joinder applications
The plaintiff’s position is that it is because the fourth defendant now wishes to raise the defence based on the case of Enever v R that it seeks to add the proposed defendants, their conduct having been already referred to in the pleadings and the Enever defence not having been previously raised by the fourth defendant. While at one point the plaintiff had said that it proposed to seek to join them anyway, I am satisfied that the proposal to plead the Enever defence was what triggered the decision of the plaintiff to seek to join these other defendants.
The limitation argument for the proposed defendants.
The defendants rely on the rule of practice that leave not be given to join a party where the cause of action is statute barred.[10] The plaintiff submits, however, that the limitation defence is not certain to succeed and that the issue is at worst arguable from his point of view.
For the proposed defendants it is put that the causes of action in negligence accrued when the damage was sustained. Reference is made, so far as the negligence claim is concerned, to Doundoulakis v Antony Sdrinis & Co[11] and Hawkins v Clayton[12]. It is put further that the cause of action in misfeasance in a public office also accrues when some damage has occurred. Counsel submits that that damage occurred at the latest when the meeting occurred following which it is alleged that there was a failure to disclose promptly the information either to the plaintiff and to his legal advisers or to the DPP. It is further put that if one was to assume a continuing duty of care or a continuing duty which would cause the tort of misfeasance in a public office to continue, those duties ceased to operate when the plaintiff was released in July 1995.
[10]Philip Morris Ltd v Bridge Shipping [1994] 2 VR 1 at 7-9.
[11][1989] VR 781 at 783
[12](1988) 164 CLR 539 at 587, 556-7, 559.
Counsel further submits that under the rules[13], should leave be given to join the defendants, the claim would be treated as commencing from the date of the amendment of the proceedings to give effect to that leave - an event still in the future. It is put that plainly more than six years has elapsed since the last possible date from which it might be argued that the cause of action accrued, namely 27 July 1995, when the plaintiff was granted bail.
[13]Rule 9.11(3a)
Limitation of Actions Act issues – plaintiff’s responses
The plaintiff proposes to allege continuing duties. That in my view is an arguable position. Accordingly for the purpose of the joinder application, and any special rule or dispensation, the last date for accrual of the causes of action was 27 July 1995, the date when the plaintiff was released from gaol.
The plaintiff relies upon a number of arguments to suggest that the Limitation of Actions Act issues are at worst arguable and so should not stand in the way of the proposed joinder.
Reliance is placed first upon the views expressed by Deane J. in Hawkins v Clayton[14]. It will be recalled that that case concerned the liability of a solicitor for failing to take reasonable steps to find the executor of an estate and inform him of the existence of the contents and custody of a will between the death of the testatrix in January 1975 and March 1981. The executor obtained a grant of probate in October of 1982. In the period from January 1975 to March 1981, however, the main asset of the estate, a house, was allowed to fall into disrepair and lie vacant for a substantial time. One of the issues that arose was whether the action against the solicitor was statute barred. The majority, comprising Brennan, Deane and Gaudron JJ., found a duty of care to exist and held that the action was not barred but did so for different reasons. Brennan and Gaudron, JJ. held that the cause of action did not accrue until the executor assumed office in March 1981. Deane J, however, saw the solution in a more general answer. He said[15]
“Its basis is to be found in the circumstance that, in the present case, the negligent failure of the firm to inform Mr Hawkins of the existence and contents of the testatrix’s last will, not only caused the damage that was sustained by him in the capacity of the executor of the testratix’s estate but also effectively concealed from him, for so long as he remained unaware of the contents of the will, the existence of the cause of action in negligence against the firm.”
[14]above at 589
[15]at 589
After acknowledging that inevitably a statute of limitation will, on occasions, cause injustice in the special circumstances of a case, he argued that the case before the Court was in a category where the limitation provisions would invariably involve “prima facie, hardship and injustice” and there was no compensating public benefit. He added[16]
[16]at 590
“If a wrongful action or breach of duty by one person not only causes unlawful injury to another but, while its effect remains, effectively precludes that other from bringing proceedings to recover the damage to which he is entitled, that other person is doubly injured”.
He argued that it would be a travesty of justice for the law to allow a cause of action for damages for false imprisonment but then provide that that cause of action would be lost if the false imprisonment continued for six years after the cause of action first accrued. He also argued that it would be a travesty of justice if the law imposed a duty on a solicitor to take positive steps to inform the third person of the contents of the document for which the solicitor was alone aware and then allowed the cause of action to be lost by the negligent failure of the solicitor to perform that duty for six years. He then turned to the question of a basis in law upon which effect could be given to his concerns. After referring to the possibility of relying by analogy on the equity jurisdiction to grant relief where the cause of action has been concealed until after the limitation period has expired, he suggested as the preferable approach that the court should indeed[17]
“recognise that it could not have been the legislative intent that the effect of provisions such as 14(1) of Limitation Act should be that the cause of action for a wrongful act should be barred by a lapse of time during a period in which the wrongful act is itself effectively precluding the bringing of proceedings.”
Counsel for the plaintiff submitted that the conduct of the proposed seventh to fourteenth defendants which gave rise to the breaches of the relevant duties, served also to conceal from the plaintiff the information needed for him to become aware of his entitlement to pursue proceedings against them. The plaintiff seeks to rely upon the failure to provide the transcript of the meeting in Broadmeadows chaired by the proposed seventh defendant until 31 July 1998 and argues that it is this document that provided the information on which he could mount his proposed claims.
[17]ibid
The plaintiff must, for the purpose of this argument, be able to point to an arguable case that the proposed defendants were in breach of their duties within a time frame that would enable the plaintiff to answer any Limitation of Actions Act defence if the parties are now joined.
There appear to me to be at least two difficulties facing any argument based on Deane J’s principle. The first is that, applying that principle, if the proposed defendants were in breach of the duties alleged in withholding information from the plaintiff, their obligations ceased to operate once the plaintiff was granted bail on 27 July 1995. He then was no longer in custody. It could not be said that after that date the proposed defendants were under any relevant obligation to disclose the information. On that basis, the claims had to be brought on or prior to 27 July 2001.
Secondly, as to the defendants other than Waterman, Pritchard and Willis, there is no evidence before me to suggest that it might be argued that in some way they played any part in withholding the evidence of the transcript from 27 July 1995 to 31 July 1998. As to Waterman, Pritchard and Willis, the evidence points to the police investigating the matter and providing the DPP with relevant statements and reports and passing the responsibility on the issue of disclosure to the Director of Public Prosecution in about March 1995. There is an issue raised on the material, however, as to why the period elapsed between May 1994 and March 1995 without there being a referral to the DPP. The matter appears arguably to have been controlled from about March 1995 by the DPP. The plaintiff can argue that those officers were in a position of responsibility in relation to the matter at least during that period – May 1994 to March 1995.
The first issue raised, however, prevents the plaintiff demonstrating a factual basis upon which he might be able to argue that the principle enunciated by Deane, J. provided him with an arguable response to the Statute of Limitations defence. In those circumstances I will resist the temptation to explore the issue of whether the propositions of Deane, J. are good law or, at least, arguably so.
The plaintiff also sought to rely upon s.27 of the Limitation of Actions Act (1958) (Vic). So far as relevant to the argument, it provides as follows
“27 Postponement of limitation periods in case of frauds or mistake. Where, in the case of any action for which a period of limitation as prescribed by this Act –
(a)the action is based upon the fraud of the defendant…or
(b)the right of action is concealed by the fraud of any such person as aforesaid or
(c)…….. the period of limitation shall not begin to run until the plaintiff has discovered the fraud…or could with reasonable diligence have discovered it”.
Counsel for the plaintiff submitted that the misfeasance in public office cause of action is an action based on the “fraud” of the defendant and therefore satisfies s.27(a) and would not therefore be statute barred because time did not run until the “fraud” was discovered. Counsel relied upon the analysis of Eames J. in Skrijel v Mengler[18] that the concept of “fraud” in the statute involves some form of dishonesty or moral turpitude.[19] As to misfeasance in a public office, what is involved is an abuse of power and it has been said that it is the absence of an honest attempt to perform the functions of the office which is at the heart of the tort.[20] Counsel for the plaintiff also submitted that s.27(b) applied in respect of both the misfeasance cause of action and the negligence cause of action on the basis that the right of action was concealed by the fraud of the defendants.
[18][1998] VSC 71
[19]See also C.E. Heath Underwriting & Insurance (Australia) Pty Ltd & Anor v Daraway Constructions (unreported, Batt, J., 3 August 1997; Bahr v Nicolay (No. 2) (1988) 164 CLR 604, 614
[20]Northern Territory of Australia v Mengel (1994-95) 185 CLR 307 per Brennan, J. at 357; Three Rivers District Council and Ors v Governor and Company of the Bank of England [2000] 3 All ER 1 at 10, 39 and 48
Accepting that definition of “fraud” and the proposed pleading of the claim against the proposed defendants, it appears to me arguable that s.27(a) is satisfied by the pleaded case to the extent the claim is based upon the cause of action of misfeasance in a public office and relies upon what occurred at and subsequent to the 1994 meeting. Dishonest conduct is alleged by the plaintiff and so it may be argued that the cause of action is based upon the “fraud” of the defendants.
As to both causes of action, it is arguable that the pleading raises an issue as to whether s.27(b) is satisfied. That issue, however, is not specifically addressed . It is necessary to refer to the potential evidence available to the plaintiff to mount an argument that the alleged causes of action were concealed by the dishonest conduct of any of the proposed defendants. The proposed defendants argue that there is no evidentiary material to support the plaintiff’s arguments and that they, therefore, are not arguable.
Plaintiff’s reliance on s.27 – evidentiary support?
Counsel for the proposed defendants argues that there is no evidence of dishonest conduct in the performance of the alleged duties or in the nature of concealment of the causes of action. Without expressing any views on the material before me, but considering it in the light of the parties’ submissions, I note the following potential issues.
(a) Whether the explanations for not bringing charges against Sammia Abboud
(i)for making a false report,
(ii)for obtaining money by false pretences from the Crimes Compensation Tribunal
were honest explanations having regard to their substance and the failure apparently to interview Charlie or whether the explanation was at least in part, an attempt to conceal information which cast doubt on the conviction of the plaintiff.
(b)In relation to the meeting in May 1994,
(i)in light of the information revealed at the meeting, why did eight months elapse in which there was no decision or referral to the DPP?
(ii)although issues were raised about the credibility of the first defendant as a witness, was a decision made at or after the meeting not to refer the matter to the DPP and not to consider it further or not to fully inform the DPP? If so, was it honestly made?
(iii)whether Waterman, the proposed seventh defendant, was of the opinion that the matter should be referred to the DPP and whether he decided not to recommend that course or was overruled by one of his supervisors, and if so, why?
(iv)whether it was decided not to reconsider the facts from the plaintiff’s point of view but rather to try to produce a brief which would result in the false reports of the first defendant not leading to charges and, so no publicity?
(c)Assuming that Waterman, about two weeks after the meeting, requested a report within three months from McKenzie about whether the DPP should be asked to review the plaintiff’s trial, was there a report and, if not, why not? If there was a report, what happened to it?
(d)Why was the transcript of the meeting of 10 May 1994 and the memo of 23 May 1994 not included in the 1995 list of documents or made available in 1995 and not made available until 1998?
The foregoing material is directly relevant to the application of s27(a) but also bears on that of s27(b). In particular, as to s.27(b), in light of that material and the present lack of other evidence, an issue arises as to whether the non‑disclosure of the minutes of the Broadmeadows meeting, the existence of the memo from Waterman to McKenzie and the absence of evidence of any action upon that, point to dishonest behaviour which served to conceal evidence. In that context, the plaintiff can argue that the reports of Willis and Pritchard take on an added significance not apparent without the context – i.e, the plaintiff can argue that it was not apparent until 1998 that there may have been an attempt to conceal evidence. As to whether those persons as defendants could be held to have concealed the right of action, the plaintiff can argue that the decisions whether to make those documents available or not is likely to have been taken at a senior level. On the evidence placed before me at this stage, Waterman arguably appears to have been involved at a responsible level in the investigation of the issue which was the subject of document disclosure, and Willis and Pritchard arguably were senior officers involved also in decision making in the matter, with Willis alerting Pritchard to the issue. From the memorandum from Waterman to McKenzie, Exhibit GW3, it appears that Waterman, on 23 May 1994, was a District Detective Inspector in the Crime Co-ordinator’s Office “I” District Broadmeadows, and McKenzie was a detective senior sergeant at the Brunswick C.I.B. Brunswick C.I.B. would seem to be within the Broadmeadows “I” District. The documents also suggest that Willis was also in that Crime Co-ordinators Office of that District in January 1995 and Pritchard was also in the “I District” Broadmeadows in January 1995[21]. There is enough to suggest that the issues are arguable.
[21]JW 6, JW 4
There may well be simple and honest explanations – for example, dilatoriness and oversight. But there is enough evidentiary material to suggest that the issue of whether the action for misfeasance is based on “fraud” or the actions were concealed by “fraud” are triable issues. As the events of the meeting were not revealed until 1998, arguably, time has not ceased to run.
The proposed claim against the thirteenth defendant, Detective Sergeant Pettet is in a different situation in that the plaintiff was aware of the relevant evidence in 1995. Any claim based on that evidence would be statute barred now and could not be saved by arguments based on s. 27 or other sections of the Limitation of Actions Act 1958 (Vic).
Limitation of Actions Act issues– plaintiff’s further response – s5(1A)
It is necessary to consider a further basis relied upon by the plaintiff to meet the Limitation of Actions Act defence. The plaintiff argues that s5(1A) of the Limitation of Actions Act 1958 (Vic) applies;
“(1A)An action for damages for negligence nuisance or breach of duty whether the duty exists by virtue of a contract or of provision made by or under a statute or independently or any contract or any such provision) where the damages claimed by the plaintiff consist of or include damages in respect of personal injuries consisting of a disease or disorder contracted by any person may be brought not more than six years from, and the cause of action shall be taken to have accrued on, the date on which the person first knows –
(a) that he has suffered those personal injuries; and
(b)that those personal injuries were caused by the act or omission of some person”.
Here the plaintiff faces two insuperable obstacles. First, he has not pleaded a claim for damages for personal injuries and does not seek them in the proposed amended pleadings. Secondly, there is no evidence that he has suffered any personal injuries. His solicitor has sworn an affidavit which deposes that the plaintiff says he has suffered “personal injuries” and that he says, in particular, that he suffers from “mental problems including anxiety, nervousness, lack of confidence, irrational rages and many related issues”. He also deposes that his client was assaulted in prison. The circumstances and the physical and psychological consequences of such assault are not described. He also says that the plaintiff has not received “formal medical treatment for same other than the most mild assistance”.[22] Objection has been taken, and strictly speaking this evidence is not admissible. If it were, however, it would be insufficient to support a conclusion that there is an issue that should be tried. It is vague and does not suggest an injury as such. Rather, it points to no injury. Further the plaintiff has had ample time to produce expert testimony of physical or psychological injury and none is produced. Accordingly, I have concluded that s.5(1A)does not assist the plaintiff.
[22]Affidavit sworn 24 September 2001
I note that the plaintiff has issued an application under s.23A of the Limitation of Actions Act 1958 (Vic) for an extension of time in which to bring proceedings against the fifth and sixth defendants and the proposed seventh to fourteenth defendants. He did not seek determination of the application – sensibly, as the need for it had yet to be determined. He sought to argue that its existence was relevant to the other issues raised but I disagree. It is not relevant.
The next issue to consider is whether the plaintiff has demonstrated that there are issues to be tried in respect of the alleged causes of action.
Joinder applications – arguable misfeasance case against all proposed defendants?
The plaintiff must demonstrate that there is an arguable case against each of the proposed defendants.
Considering, firstly, claims of misfeasance in public office, it appears from the evidence placed before me in support of the application, (in particular, the transcript of the meeting), that arguably an inference is open that Inspector Waterman was in charge of the meeting and of the process of reviewing the plaintiff’s conviction. If there was a duty to pass on information, the plaintiff has an arguable basis for saying it rested at least in part with him. On the other hand, it may be said that there is no evidence to suggest that any of the other police officers junior to him had a duty to do more than convey information and to do so to anyone but him. Their role on the evidence appears to have been to participate in the meeting, express opinions, convey their relevant knowledge, discuss the issues and to undertake any task that might be given to them by Waterman. On the basis of the evidence before me it cannot be said there is an arguable case that anybody junior to Waterman had an obligation as part of their duties as a public officer to communicate, as it is proposed to allege, either with the plaintiff and his advisers, or with the DPP, on the information gathered at the meeting.
Turning to those officers who provided reports with recommendations for future action, the exhibited documents discovered by the fourth defendant provide arguable evidence that Detective Senior Constable Berry was obliged to report to his superior, named Jury who appears to have been the officer-in-charge of the Brunswick CIB. He in turn appears to have forwarded the report on to Inspector Willis as Crime Co-ordinator of the “I” District. Willis in turn appears to have reported to Superintendent Pritchard who was the Superintendent of the same district. Pritchard in turn reported to the Chief Superintendent of the same district.
The plaintiff is able, at least, to argue on current material that Willis and Pritchard were in positions of responsibility, requiring them to make relevant recommendations to their superiors. Willis himself, in his report, saw fit, as noted above, to make comments about the significance of the material from the point of view of the plaintiff’s conviction and arguably placed that material before Pritchard. Thus it is open to the plaintiff to argue that both Willis and Pritchard, as part of their duties as police officers, were required to make appropriate recommendations relating to the impact of the new material on the conviction of the plaintiff.
As far as Pritchard and Willis are concerned, however, it may be said that the reports that they provided were made available in early July 1995 and that any “fraud” on their part in their actions or attempt at concealment was revealed then and time began to run. If that be so then, at the latest, the time for bringing proceedings against them expired in early July 2001 and thus it would be too late to bring proceedings against them.
There is, however, a further arguable issue and that is whether there was concealment of the Broadmeadows meeting, the transcript of it and the memorandum to McKenzie and whether this sufficiently assisted the concealment of the otherwise tortious conduct to amount to a concealment until 1998 by “fraud” of the existence of the tortious conduct.
It appears to me that on the present evidence, this is an arguable position available to the plaintiff. An awareness of the fact of that meeting, the discussion that occurred at it, the request for McKenzie to report on the questions, including the issue of a reference to the DPP, and the apparent silence that follows so far as that is concerned creates a different context in which to consider the conduct, including the reports, of Berry, Willis and Pritchard which on their face focus on the possible charges against Abboud and, in the case of Willis’ report endorsed by Pritchard, dismiss any concerns about the plaintiff’s conviction. It appears to be arguable that Pritchard and Willis were seized of the facts and Willis directed his mind to the issue of the plaintiff’s case and drew it to Pritchard’s attention. In light of information then available and subsequent events, it is open to the plaintiff to argue that Willis’ view was wrong and that that conclusion, together with other evidence, raises an issue whether an attempt was made at a senior level to prevent the review of that case. The plaintiff can argue that it was not until the transcript and memo were made available that the issue of possible dereliction of duty and dishonesty in the handling of the matter was exposed.
The plaintiff also seeks to rely on the fourth defendant’s argument based on Enever, that each officer, including those junior to Waterman, had an independent discretion. But that principle is concerned with the liability of the employer. In relation to each police officer, assuming each had an independent discretion, it was to be exercised in carrying out his or her responsibilities. There is no evidence that the responsibility to take the issue further in 1994 had been allocated to or undertaken by anyone below Waterman in rank or responsibility. In making that comment I express no conclusion in respect of the second defendant who was present at the meeting and was the officer involved in the original trial and may have had different responsibilities. MacKenzie was also given a specific responsibility to investigate but his task was, on the evidence, to report to Waterman and not the DPP or anyone else. Leave should not be given for the joinder of Berry on the evidence before me because it is clear from the relevant memos that the task he was given and undertook was merely to report on the issue whether the first defendant should be charged over the Charlie allegations. Similar considerations apply to Pettet.
Accordingly, I am satisfied that there are arguable issues to be tried as to whether the cause of action in misfeasance in a public office is made out against Waterman, Pritchard and Willis and, in those circumstances, it appears to me that the application to join the proposed seventh, eighth and tenth defendants for misfeasance in public office should be granted. I am not persuaded that the other proposed defendants should be joined, however, on the basis of a cause of action of misfeasance in a public office because I am not persuaded that the plaintiff has demonstrated an arguable case against them for that tort.
Joinder – arguable negligence claim against each defendant?
There remains the issue of the joinder of the eight defendants for negligence. Counsel for the proposed defendants that have been served submitted that there was no duty of care owed by any of the proposed defendants to the plaintiff in circumstances alleged by the plaintiff. He submits that therefore they should not be permitted to be joined to be sued in negligence.
The matters to which I have already referred appear to me to be of relevance in determining whether this argument should be upheld in respect of any or all of the proposed defendants. The proposed pleadings leave something to be desired but having regard to them and the material placed before me, it may be said that the plaintiff can present an arguable case in negligence against Waterman, Willis and Pritchard, at least in respect of reconsideration of the plaintiff’s conviction - but not the junior officers who were doing the investigation and reporting the salient facts to their superiors.
Counsel for those proposed defendants who appeared, sought to rely upon a recent High Court decision of Sullivan v Moody[23] where the High Court held that a duty of care was not owed to an alleged perpetrator of sexual assaults by doctors and social workers who were engaged to investigate whether children had been the victims of such sexual assaults. In their joint judgment the members of the High Court in an attempt to identify relevant criteria went back to the origins of the tort of negligence, the demise of "proximity" as a test and its lack of utility in any event. They also referred to the fact that the three stage approach adopted in England did not represent the law in Australia. They cautioned against adopting in reality a discretionary approach based on a sense of what was fair, just and reasonable for the outcome in a particular case, and urged development of the law of tort by reference to principles of general application. They identified different problems that can arise in determining the existence and nature or scope of duty of care.[24]
[23] (2001) 75 AL JR 1570
[24]para 50
· Problems bound up in the harm suffered by the plaintiff as a result, for example, of criminal conduct of a third party.
· Problems arising from the fact that the defendant is the repository of a statutory power or discretion.
· The difficulty of confining the class of persons as to whom a duty may be owed within reasonable limits.
· On occasions the need to preserve the coherence of other legal principles or of a statutory scheme which governs certain conduct or relationships.
They commented –
"The relevant problem will then become the focus of attention in a judicial evaluation of the factors which tend for or against a conclusion, to be arrived at as a matter of principle."
Having repeated their caution against deciding novel cases on the basis of an "intuitive sense" of what is "fair" or "unfair" they commented that there are cases of which the case before them was one
"where to find a duty of care would so cut across other legal principles as to impair their proper application and thus lead to the conclusion that there is no duty of care of the kind asserted."[25]
[25]para 53
The first difficulty that they saw in the way of finding a duty of care in that case was that it concerned the communication of information and that to recognise a duty of care in that situation would be to develop the law of negligence in competition with the law of defamation and
"would allow a recovery of damages for publishing statements to the discredit of a person where the law of defamation would not."[26]
[26]para 54
The court also drew attention to another issue, and that was that the persons alleged to owe the duty of care had already a variety of responsibilities and duties and the duty of the kind alleged
"should not be found if that duty would not be compatible with the other duties which the respondents owed".[27]
[27]para 55
They then referred to decisions of the House of Lords and Privy Council in which a duty of care was denied because of the varieties of decisions, discretions and issues of priority which had to be borne in mind. Of particular interest is Hill v Chief Constable of West Yorkshire[28]. The House of Lords held that police officers did not owe a duty of care to individual members of the public who might suffer injury as a result of their careless failure to apprehend a criminal who is dangerous. It was pointed out that the conduct of a police investigation involves a variety of decisions on matters of policy and discretion, including allocation of resources. The High Court commented[29]
"To subject those decisions to a common law duty of care, and to the kind of judicial scrutiny involved in an action of tort, was inappropriate."
[28][1989] AC 53.
[29]Para 57
The Court also stated[30]
"The circumstance that the defendant owes a duty of care to a third party, or is subject to statutory obligations which constrain the manner in which powers or discretions may be exercised, does not of itself rule out the possibility that a duty of care is owed to a plaintiff. People may be subject to a number of duties, at least provided they are not irreconcilable. A medical practitioner who examines, and reports upon, the condition of an individual, might owe a duty of care to more than one person. But if a suggested duty of care would give rise to inconsistent obligations, that would ordinarily be a reason for denying that the duty exists. Similarly, when public authorities, or their officers, are charged with the responsibility of conducting investigations, or exercising powers, in the public interest, or in the interest of a specified class of persons, the law would not ordinarily subject them to a duty to have regard to the interests of another class of persons for that would impose upon them conflicting claims or obligations."[31]
[30]para 60
[31]Para 60: see also O’Doherty v Birrell (2001) 3 VR 147
They went on to draw attention to the question also of "the extent, and potential indeterminacy of liability." They then turned to the statutory scheme under which the defendants were operating, noting that it was a scheme "for the protection of children". They went on[32]
"It required the respondents to treat the interest of the children as paramount. Their professional or statutory responsibilities involved investigating and reporting upon, allegations that the children had suffered, and were under threat of, serious harm. It would be inconsistent with the proper and effective discharge of those responsibilities that they should be subjected to a legal duty, breach of which would sound in damages, to protect persons who are suspected of being the sources of that harm. The duty for which the appellants contend cannot be reconciled satisfactorily, either with the nature of the functions being exercised by the respondents, or with their statutory obligation to treat the interests of the children as paramount."
[32]para 62
Counsel for the proposed defendants who appeared did not develop a detailed argument based on Sullivan's case, its existence coming to light at the end of the hearing.
In analysing the issues, I suggest that a distinction should again be drawn between those officers who arguably had the responsibility to make decisions about whether to take the review of the plaintiff's conviction further and those officers whose task it was to gather the material and contribute to any discussion of it. What matters from the point of view of the plaintiff's loss seems to me to be the police investigation of the evidence which cast doubt upon his conviction. The plaintiff can point to no material to support an argument of negligence in the gathering of the relevant material. What is proposed to be alleged as the negligence of the proposed defendants is a failure to exercise reasonable care to ensure they promptly disclosed the information to the plaintiff, his legal representatives or the DPP. If there is to be a case of negligence made out it must focus on those involved in the decision making process in that review process and whether that was conducted with due care. In those circumstances the field of potential defendants is narrowed to those actually involved in the decision making process – that is, those whose task and responsibility it was to review the material and determine whether it should be disclosed to the plaintiff or be sent to the DPP for review. That appears on the material before me to narrow the field of potential defendants to Waterman, Pritchard and Willis. Having regard to the discussions of the approach to determining the existence of a duty of care in Sullivan's case and other recent High Court decisions[33], the following relevant arguable points may be made –
[33]e.g. re Hill v Van Eryn (1997) 188 CLR 159; Pyrenees Shire Council v Day (1998) 192 CLR 330; Perre v Apand Pty. Ltd. (1999) 164 ALR 606; Crimms v Stevedoring Industry Finance Committee (1999) 167 ALR 1.
· Those three officers were engaged in a review of information relevant to the conviction of the plaintiff.
· It was reasonably foreseeable that harm could follow for the plaintiff if they failed to exercise reasonable care.
· To impose a duty of care in reviewing the material and deciding whether to recommend referral to the DPP, or to the plaintiff and his lawyers, creates little or no conflict with their other duties and responsibilities, but rather encourages due performance.
· The circumstances in which the officers found themselves were special. They were not conducting a general investigation of alleged crimes. They were concerned with whether the conviction should be reviewed of someone who was in gaol and was going to remain in gaol for at least 10 years so long as the conviction was not quashed. Thus to find a duty of care would not expose police to indeterminate liability.
· The plaintiff was in a particularly vulnerable position in that he and his legal advisers were entirely dependent upon, and relying upon the police officers to take steps needed to consider the issues properly. They could not themselves take part because they were completely ignorant of the relevant information, could not compel its production and could play no part in the review and decision making process.
· The officers concerned would have been aware of the fact that the plaintiff was entirely dependent upon their due performance of their responsibilities and was relying upon them to carry out those responsibilities with reasonable care.
For these reasons it appears to me that the plaintiff on present material has an arguable case that the requisite relationship existed and that a duty of care arose in the case of Waterman, Willis and Pritchard. Ultimately, of course, the outcome will depend upon the evidence that is adduced on the relevant issues. There is sufficient material before me, however, to support that conclusion that there is an arguable case in negligence against those persons.
Plaintiff’s Joinder application – conclusion
For the foregoing reasons, leave should be given to the plaintiff to join Waterman, Willis and Pritchard in respect of both causes of action.
I turn to the application of the fifth and sixth defendants for summary judgment
Application of The Fifth And Sixth Defendants – pleaded issues
The fifth defendant was the solicitor instructing at the prosecution of the plaintiff for the alleged revenge rape. The sixth defendant was a member of the Victorian Bar retained to prosecute the plaintiff for the alleged rape. It is presently alleged against the fifth and sixth defendants that they[34]
(a)”were under a continuing duty to disclose to the plaintiff or to his legal representatives, or to ensure the disclosure of information of which they were aware that was relevant to the defence of the alleged revenge rape alternatively was required to be disclosed for the plaintiff to have a fair trial;
(b)were under a duty to conduct all aspects of the prosecution of the plaintiff in a fair and impartial manner.”
These duties are alleged to be imposed by law.
[34]30A
The plaintiff further pleaded that during or prior to the trial, the fifth and sixth defendants received information that was relevant to his defence or was required to be disclosed for him to have a fair trial. The information in question was that the first defendant claimed to have been raped by her other cousin, Charlie, as well as by the plaintiff. It is alleged that such information could and would have been used by the plaintiff’s counsel at the trial to suggest a possible cause of injuries to the complainant’s genitalia (which it is said was a crucial issue in the trial), to challenge the complainant’s credibility and, further or alternatively, to adjourn the trial to enable further investigation. It is alleged that after receiving that information the fifth and sixth defendants failed to communicate or ensure the communication of that information to the plaintiff or his legal representatives and, further and in the alternative, decided not to do so, and decided not to ensure that it was communicated to the plaintiff or his legal representatives, that they actively dissuaded or were party to dissuading the first defendant from disclosing that information to the plaintiff or to his legal representatives and from formally reporting the allegations against Charlie to the police. It is alleged that the failure to communicate, and the active dissuasion referred to, constituted a breach of the duty referred to above and were invalid acts or omissions by the fifth and sixth defendants in the performance of their functions as prosecutors and constituted misfeasance in a public office.
It is unnecessary to refer in detail to the remaining pleadings in relation to this aspect of the claim, but it should be noted that it is alleged that the actions of the fifth and sixth defendant were a cause of the plaintiff being convicted and remaining in prison until July 1995, or in the alternative denied the plaintiff a chance of being acquitted of the rape charge or being released from prison before July 1995. As a result the plaintiff has suffered loss and damage, including loss of liberty.
Application of the Fifth and Sixth Defendants – Limitations of Actions Act argument
The fifth and sixth defendants have pleaded that this claim for misfeasance in a public office is statute barred, it being issued more than six years after the alleged cause of action arose. They allege that the plaintiff’s cause of action accrued against them upon his conviction on 30 March 1992; for that was when the plaintiff suffered the damage alleged in the amended statement of claim. It is said that, as pleaded, the plaintiff’s case is made out on proof of the conviction. Critical to their argument is the proposition that on the pleadings, the case put forward by the plaintiff does not plead a continuing duty to disclose. I was originally minded to accept that submission but on further analysis of the pleadings I am satisfied that a continuing obligation has been pleaded and properly construed, the pleadings are asserting that that obligation continued until the release of the plaintiff in July 1995. On that basis the cause of action accrued day by day[35]. In those circumstances, the allegations having been pleaded against the fifth and sixth defendants prior to July 2001, the claim is not statute barred in so far as it relates to damage suffered within the limitation period.
[35]Maroney v Yarrawonga Industries Pty. Ltd , Brooking, J. unreported 26/6/87
Application by fourth defendant to raise the Enever defence – history of pleadings
By a defence filed 24 July 2000 to a statement of claim naming Abboud, Azarnikow, Payne and the State of Victoria (the fourth defendant) as defendants, the fourth defendant alleged that the actions complained of by the second and third defendants were not carried out pursuant to or within the course or scope of their employment or did not constitute anything necessarily or reasonably done or omitted to be done in good faith in the course of their duties as a member of the Police force within the meaning of s. 123(1) of the Police Regulation Act 1958 (Vic). This remained the position in its further amended defence of 17 October 2000.
Early last year the plaintiff applied to substantially amend the statement of claim to include allegations against the fifth and sixth defendants. In addition, allegations were made against a forensic physician, Dr Young, employed by the Victorian police, alleging negligence in his assessment of Ms Abboud when he examined her on 23 August 1991. It was alleged that the fourth defendant was liable for his breaches because he was employed by the fourth defendant and was acting pursuant to and within the scope of his employment and, alternatively, pursuant to s.123 of the Police Regulation Act 1958 (Vic) or s.23 of the Crown Proceedings Act 1958 (Vic).
Allegations were also raised against “other police officers” namely the allegations referred to above as made against the proposed seventh to fourteen defendants and also doctors, alleged to have been employed by the fourth defendant, in their conduct of investigations of allegations made by the first defendant against Charlie after the conviction of the plaintiff. It was also alleged that other police officers and Dr Young were at all times public officers and their actions constituted misfeasance in a public office. The plaintiff also specifically alleged in the pleadings[36] that the fourth defendant was vicariously liable for the misfeasance alleged against the second defendant and the other police officers and also Dr Young, relying on their alleged employment by the State of Victoria and, alternatively, s. 123 of the Police Regulation Act 1958 (Vic) and, alternatively to that, s.23 of the Crown Proceedings Act 1958 (Vic).
[36]para 31
The amended statement of claim was filed on 9 April 2001. On 24 April 2001 the fourth defendant filed an amended defence. In relation to the allegations relating to the second and third defendants it again relied on the same pleading alleging that the actions were not carried out pursuant to or within the course or scope of their duties or were not done in good faith in the course of their duties as members of the police force within the meaning of s. 123(1) of the Police Regulation Act 1958 (Vic). So far as Dr Young was concerned it did not admit that he was employed by the fourth defendant or that he was acting pursuant to or in the scope of his employment. It further denied that he was at any time a member of the police force within the meaning of s. 123(1) of the Police Regulation Act 1958 (Vic). As to the allegations against the other police officers it alleged, inter alia, that their actions were not carried out pursuant to or within the course or scope of their duties. Alternatively, they were not necessarily or reasonably done or omitted to be done in good faith in the course of their duties as a member of the police force within the meaning of s. 123(1) of the Police Regulation Act 1958 (Vic). Finally, in addressing directly the pleading of vicarious liability in the plaintiff’s amended statement of claim, it denied that it could be vicariously liable for any alleged misfeasance in a public office committed by the second defendant, the other police officers, the fifth and sixth defendants or Dr Young as alleged, and further, that any misfeasance in a public office did not constitute anything necessarily or reasonably done or omitted.
Fourth Defendant’s application – arguments of parties
In support of its application for leave to amend to raise the Enever defence, the fourth defendant submits that it failed to plead the defence as the result of an oversight. This allegation is supported by an affidavit of Brendan Kelly sworn 3 September 2001. That assertion has not been challenged. The fourth defendant submits that it should not be prevented from litigating a fairly arguable defence and leave to amend the defence should be given unless there is irremediable and relevant prejudice.[37]
[37]Howarth v Adey [1996] 2 VR 535; Queensland v J.L. Holdings Pty Ltd 154-5.
The plaintiff submits that there is irremediable relevant prejudice because, if the fourth defendant had pleaded the defence at the appropriate time when it filed its defence on 23 April 2001, he would have been in a position to join the individuals concerned, but is now prevented from doing so - that is he could have joined the other police officers. I did not understand the plaintiff to argue that there was also prejudice in relation to the claims based on the alleged negligence of Dr Young or in relation to the other persons who are already parties. This would appear to be a correct concession.
Fourth defendant’s application - analysis
On the basis of the foregoing analysis, the plaintiff would not have been given leave to join the other police officers other than Waterman, Pritchard and Willis regardless of the Limitation of Actions Act defence. As a result no material prejudice arises in relation to pleading the Enever defence in relation to the pleadings which rely on the acts and omissions of those other officers.
In the case of Willis and Pritchard, the situation is more complex. Knowledge of their roles and potential liability was revealed in early July 1995. There would have been an opportunity between the filing of the defence on 23 April 2001 and early July 2001 to join them if the Enever defence had then been raised. This would have assisted the plaintiff, in that in response to any Limitation of Actions Act defence, if raised, he could have argued that;
(a)the causes of action being continuing ones, and he being in custody until 27 July 1995, time ran from that time
(b)s27(a) and (b) of the Act applied on the basis that the fraudulent conduct or concealment were not revealed prior to early July 1995 and so time only began to run from that time.
On the basis of those arguments, he could have recovered a portion of the compensation sought against them. Thus he would have had an additional argument to put, albeit for a lesser amount, if he were to fail in the argument that time did not run until July 1998. In those circumstances it seems to me that the fourth defendant should not be permitted to raise that defence now in respect of their alleged acts and omissions.
In relation to the fourth defendant’s liability in respect of Waterman, he too could have been joined prior to July 2001, and the plaintiff placed in a stronger position, similar to that which he would have enjoyed if he had joined Willis and Pritchard at that time. Accordingly, the amendment should not be allowed in relation to Waterman’s alleged acts and omissions.
Fourth Defendant’s application - conclusion
It follows, somewhat paradoxically, that the fourth defendant should be permitted to amend its defence to plead the so-called Enever defence in respect of the acts and omissions of the officers other than Waterman, Willis and Pritchard.
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