Towie v Foster
[2005] VSC 11
•19 January 2005
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
PRACTICE COURT
No. 7194 of 1997
| CHRISTOPHER REES TOWIE | Plaintiff |
| v | |
| SENIOR CONSTABLE CHRISTOPHER FOSTER AND OTHERS | Defendants |
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JUDGE: | HABERSBERGER J | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 19 JANUARY 2005 | |
DATE OF JUDGMENT: | 19 JANUARY 2005 | |
CASE MAY BE CITED AS: | TOWIE v FOSTER | |
MEDIUM NEUTRAL CITATION: | [2005] VSC 11 | |
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Practice and Procedure – Self-executing order in respect of the filing and service of an amended statement of claim – Appeal against the Master's refusal to extend the time for compliance with the self-executing order – Amended statement of claim filed and served purportedly within the time required by the self-executing order – Appeal dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr M.S.R. Clarke | Access Law |
| For the 1st to 4th, 7th and 8th Defendants | Mr B.M. Dennis | Victorian Government Solicitor |
| For the 5th and 6th Defendants | Mr R.J. McInnes | Russell Kennedy |
HIS HONOUR:
This application arises out of an incident which occurred at a doctor's surgery in Epping in April 1994. The plaintiff, a medical practitioner, complains about the conduct of the first four defendants, who are all police officers, in forcefully removing him from the premises and assaulting him in the course of doing so.
In his original writ, which was issued on 24 September 1997, the plaintiff also alleged an agreement between the first four defendants and the fifth and sixth defendants, that the first four defendants would maliciously and/or under colour of office, and/or by the threat of force and arms, remove the plaintiff from the medical centre. The fifth defendant is a corporation, apparently related to the sixth defendant, who was also a medical practitioner. The sixth defendant would seem to have been acting in partnership with the plaintiff, or in some relationship with the plaintiff at the time.
The seventh defendant is the then Chief Commissioner of Police, and the eighth defendant is the State of Victoria.
On 30 April 1999 Master Kings ordered, in paragraph 3, that:
"The claims by the Plaintiff appearing in his statement of claim filed 24 September 1997 in respect of:
(a)any breach of agreement;
(b)misfeasance of office;
(c)breach of section 53A of the Trade Practices Act; and
(d)breach of statutory duty;
be stayed until such time as the Plaintiff's trustees [sic] in bankruptcy becomes a party to this proceeding."
As I understand the material, the plaintiff had become bankrupt in 1995. Nevertheless, the plaintiff was represented by his solicitor at the hearing before Master Kings on 30 April 1999. No appeal was brought from that order of Master Kings.
Various other interlocutory steps followed, including an application by the plaintiff on 19 May 2003 which was heard by Master Wheeler. The summons that was before the court on that occasion sought an order that the relevant part of Master Kings' order made on 30 April 1999 be "set aside". It is suggested that that application before Master Wheeler was conducted as though it were an application to lift the stay.
Master Wheeler ordered that the allegations in the statement of claim relating to s.53A of the Trade Practices Act be struck out, and dismissed the plaintiff's application to set aside paragraph 3 of the order made by Master Kings on 30 April 1999. No appeal was brought from that order of Master Wheeler.
On 18 August 2004 Master Kings ordered that on or before 30 September 2004 the plaintiff file an amended statement of claim which reflected the orders made on 30 April 1999 and 19 May 2003. That order was not complied with, and on 15 October 2004 Master Kings ordered that unless the plaintiff file and serve an amended statement of claim by 3 December 2004, the plaintiff's proceeding stand dismissed.
A summons issued by the plaintiff and dated 2 December 2004, but filed on 3 December 2004, read as follows:
"You are summoned to attend before the Court on the hearing of an application by the Plaintiff for the following orders:
Interim Orders
A.That paragraph 1 of Master Kings made [sic] 15 October 2004 be varied to:
'1.Unless the Plaintiff file and serve an amended statement of claim by 8 December 2004 the Plaintiff's proceeding stand dismissed.'
B.That this summons be adjourned to 8 December 2004 for hearing and determination.
Further orders sought at hearing on 8 December 2004
C.That the Court vacate paragraph 3 of its Order made on 30 April 1999 wherein the Court ordered … [and then paragraph 3 of Master Kings' order, which I previously read, was set out. The summons continued:]
"D.Any further or ancillary Orders as the Court deems fit.
E.Costs."
The summons was heard by Master Kings on 3 December 2004. On that occasion the plaintiff was represented by counsel, the first to fourth, seventh and eighth defendants were also represented by counsel and the fifth and sixth defendants by their solicitor. Master Kings refused to extend the time for the filing of the amended statement of claim pursuant to her self-executing order. She dismissed the plaintiff's summons dated 2 December 2004, and ordered the plaintiff to pay the defendant's costs.
By notice of appeal dated 6 December 2004 the plaintiff has appealed against the Master's order of 3 December 2004. The orders sought, as set out in the notice of appeal, are as follows:
"The appellant seeks:
A.An order that Paragraph 3 of the Order made by Master Kings on 30 April 1999 be quashed.
B. Any further or ancillary Orders as the Court deems fit.
C. Costs."
Mr Clarke of counsel, who appeared on behalf of the plaintiff, indicated to me at the outset of his argument that the plaintiff indeed sought that paragraph 3 of the order of Master Kings be vacated or quashed or set aside, whatever the terminology one wanted to adopt.
It seems to me, however, that the appeal is misconceived in that the issue of whether or not paragraph 3 of the order made by Master Kings on 30 April 1999 should be vacated or quashed or set aside was not dealt with by the Master at the hearing on 3 December 2004. She was not asked to deal with that question. The only matter that she dealt with was the application to extend the time in the self-executing order. Nevertheless an appeal can be brought from that order.
However, the plaintiff does not now seek to have that time extended because, the application before Master Kings having been lost, an amended statement of claim was prepared and was filed before the Prothonotary's office closed on 3 December. It was apparently served shortly after four o'clock on the two sets of defendants, but neither set of defendants takes the point about whether or not service after four o'clock was a failure to comply with the self-executing order.
There is an issue raised by the first to fourth and seventh and eighth defendants as to whether or not the amended statement of claim which was filed was in fact in compliance with the self-executing order. But that is not an issue before me today and was therefore not pressed.
The fifth and sixth defendants have also raised a matter disputing the validity of the statement of claim, but that is to be dealt with when their forthcoming application to strike out the claim as against them is heard. Their argument is that there is no cause of action against them disclosed in the amended statement of claim.
Subject to resolution of these issues, the amended statement of claim having been delivered, the self-executing order has come to an end. There is no need to extend the time for delivery of the amended statement of claim. It seems to me, therefore, that there is no basis on which I can allow any appeal from Master Kings' order dismissing the application to extend the time.
The matter is complicated in that the substantive point that the plaintiff wants to raise is that the order made by Master Kings in April 1999 staying parts of the plaintiff's claim, or various causes of action by the plaintiff, because of his bankruptcy, was incorrect. As I have said, the plaintiff did not appeal that order within the time provided, which would have meant that the appeal would have come on before the middle of 1999. It may be possible for the plaintiff, on proper material, to seek to have extended the time within which to appeal from that order, but that is not this application.
Further, both of the sets of defendants have put in outlines of submissions which raise the problem that the plaintiff otherwise has in overcoming the effect of Master Kings' order which was authenticated many years ago. The same applies with respect to Master Wheeler's order which was also authenticated a long time ago. In the circumstances I do not need to deal with the issue of whether the Court has any power to set aside or vary or vacate part or all of those orders.
For the reasons I have given the appeal will be dismissed with costs.
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