First Plaintiff v Defendant

1 The trial of this matter, originally scheduled for 31 August 2020 has been delayed by the Stage 4 Covid-19 restrictions. While the parties were able to accommodate a remote hearing under the Stage 3 restrictions with witness and practitioner access to professional addresses, the increase to Stage 4 led to a number of practical difficulties. The trial therefore was relisted for 12 October, anticipating a return to Stage 3 by that time. However, the difficulties that led to the vacation of the August trial date remain for a trial now commencing on 12 October 2020.

2 At directions on 11 August 2020 the defendant made an application to split the trial so that liability be determined in one hearing and there be a later hearing if required to determine damages. At that time, given the vacation of the trial date, it was not necessary to rule on the application. It was pressed again before me at the directions hearing on 21 September 2020. For the reasons that follow, I will not order that the liability issues in the trial be heard and determined separately.

3 The first plaintiff Mr Midson was a serving police officer. The second plaintiff is his wife. They seek damages for psychiatric injuries. Their proceeding alleges unlawful arrest and detention. In the case of the first plaintiff arrests were made on 7 September 2016 and 5 May 2017, and the second plaintiff was arrested on 24 November 2016. They also allege trespass to land and goods arising from the execution of a warrant at their home on 5 May 2017 and for malicious prosecution in respect of criminal charges brought in respect of events occurring on various dates in April and May 2017 in respect of each plaintiff. Additionally the first plaintiff alleges that disciplinary charges brought against him in January 2017 were brought for an improper purpose and constitute the tort of collateral abuse of the legal process.

4 The defendant submits that on the pleadings it believes that only the plaintiffs would give liability evidence as part of their case and there is a clear demarcation between the issues and the witnesses who would give evidence on liability and damages.

5 The plaintiffs resist the splitting of the trial. They submit that it will require the plaintiffs to give evidence twice, that there are a number of other potential lay witnesses from whom it is intended to lead evidence both as to liability and quantum who would also be called twice as well as a number of medical witnesses, so that there will be no real saving of court time by splitting the issues for determination.

6 The Court has power to order that any question in a proceeding be tried in any manner, including the time or place as directed. In addition to the inherent power of the Court to control the conduct of proceedings before it, Rule 47.04 gives specific power to deal with the manner of trial. This rule provides:

47.04 Separate trial of question

The Court may order that -

(a) any question in a proceeding be tried before, at or after the trial of the proceeding, and may state the question or give directions as to the manner in which it shall be stated;

(b) different questions be tried at different times or places or by different modes of trial.

7 Making an order for separating the trial of liability issues from the assessment of any damages is informed by the following principles as set out in Murphy v Victoria & Anor:[1]

1. A separate trial should be ordered under r 47.04 only with great caution and only in a clear case.
2. The attraction of trials of issues rather than cases in their totality, "are often more chimerical than real", so that separate trials should "only be embarked upon where their utility, economy and fairness to the parties are beyond question".
3. The advantages of trying separate questions for one party may unfairly disadvantage another party, including because the questions will be determined without the benefit of all the evidence relevant to the proceeding.
4. There should be no trial of a separate question on the basis of assumed facts unless the facts are agreed or can readily be determined judicially. Otherwise, the parties remain free to dispute the relevant facts at any later trial.
5. As a general rule, it is inappropriate to order that a preliminary issue be isolated for determination unless the determination of the issue in favour of the plaintiff or of the defendant will put an end to the action, or where there is a clear line of demarcation between issues and the determination of one issue in isolation from the other issues in the case is likely to save inconvenience and expense.
6. Factors which tell against making order under r 47.04 include that the separate determination of the question:

1. may give rise to significant contested factual issues both at the time of hearing of the preliminary question and at the time of trial; 2. may result in significant overlap between the evidence adduced on the hearing of the separate question and at trial; possibly involving the calling of the same witnesses at both stages of the hearing of the proceeding; and

1. may prolong rather than shorten the litigation.[2]

8 The application of these principles were recently re-stated in Hoh v Ying Mui Pty Ltd.[3] There, what had been ordered by the trial judge was not a separate trial under r 47.04 but a procedure described as a 'sequential trial model'. The court said that 'given the credit issues involved in causation and loss, this was a case where all the issues, including causation, loss and the form of relief should have been tried at the one time and resulted in one judgment.'[4]

9 Similar comments were made by Callinan J in Perre v Apand Pty Ltd[5] as to the difficulties associated with separate trial hearings on separate issues where the credit of witnesses is in issue and where some or all of the witnesses will give evidence on both liability and quantum. It was said by Callinan J that:

Care does need to be taken in deciding whether to conduct separate trials of different issues. It sometimes happens that they may turn out to be productive of the disadvantages of delay, extra expense, appeals and uncertainty of outcome which they are intended to avoid. In tort cases in which damage is the gist of the action, it will generally be undesirable to accede to requests for them, or to order them, unless all parties accept that compensable damage has been sustained by the plaintiffs or applicants as the case may be.[6]

10 Senior Counsel for the plaintiffs tells the Court that in addition to the plaintiffs, five of their potential lay witnesses may give evidence on factual matters going to liability. He describes them as witnesses present on occasions predating the arrests of the plaintiffs in September and November 2016, which events are relevant to the question of whether those arrests were unlawful. Senior Counsel for the Defendant submits that the evidence of persons other than the plaintiffs could not be admissible and that questions of liability would be confined to admissible evidence from the plaintiffs and the various defendant police witnesses.

11 While it is clear that there is likely to be challenge to the admissibility of some evidence that the plaintiff wishes to lead on liability, it is not appropriate in determining whether to order separate trial listings on issues to act upon the competing submissions as to the admissibility of the proposed evidence. If a split trial was ordered, each witness the plaintiff seeks to call would still need to be called on liability and a determination made of what evidence on that question, if any, is to be admitted. They would then be called again for any evidence on quantum. In such circumstances the duplication of witnesses would be likely to lengthen rather than shorten the trial estimate.

12 Further, the plaintiffs submit that they will seek evidence from a number of police witnesses called for their evidence as to liability but who may be questioned by the plaintiffs also as to damages on career prospects and the like. Splitting the trial issues as proposed would prevent such questioning and work an unfairness to a party.

13 Finally, on any view the plaintiffs themselves would each be required to give evidence and be cross-examined on two separate occasions. In circumstances where the injury sustained by each is in the nature of a psychiatric injury I accept that it is undesirable that they be required to give evidence and be subject to cross-examination on two separate occasions. From the perspective of their evidence, the events about which they will give evidence and their reaction or response to those events are likely to be difficult to quarantine from each other. Although the defendant did not submit that the plaintiffs' credit was in issue, the detail of the pleaded disciplinary charges and the nature of the criminal charges as can be gleaned from the pleadings would suggest that credit of all witnesses in a general sense is likely to be in issue.

14 The defendant denies that the plaintiffs have suffered injury.[7] If liability is established, the plaintiff will have to establish any entitlement to damages, not simply seek an assessment of those damages. The plaintiffs have also sought aggravated and exemplary damages which is also denied. The availability of aggravated and exemplary damages is in part dependent upon findings as to conduct of police and the response of each plaintiff to that conduct. For this reason alone it would be difficult to separately determine questions of liability without needing to revisit issues if it becomes necessary to determine whether aggravated or exemplary damages ought be assessed.

15 All of these matters indicate that this is not a case where there is a clear line of demarcation between the issues.

16 The defendant is rightly concerned to avoid delay and the degradation of memory associated with delay. However, the splitting of issues to avoid delay in this case is likely to result in a false economy and does not address the practicalities of running the trial under the present restrictions. The liability issues are likely to take up the lion's share of the trial time, presently estimated to be 20 days. Both Counsel express concern that this estimate may be insufficient. The plaintiffs' counsel estimated that the damages component might sustain two or three days hearing time. The defendant also anticipates that this aspect of the trial would be of relatively short compass, isolating the damages claim to only one psychiatric expert, Dr Epstein, being the only medical report served in accordance with the Rules and some lay evidence. If in fact the damages component overall is of relatively short compass, this would also tell against listing it separately for determination.

17 The trial can be accommodated by a listing early in the new year thus avoiding any lengthy delay.

18 There was a further issue ventilated before me as to the discovery of the first plaintiff's police diary. I understand it to be a diary kept by him setting out the nature of the work that he did and the time devoted to various tasks. The defendant objects on the basis of relevance submitting that it could have no relevance to the pleaded issues as its contents go to no fact in issue.

19 The test for discoverability requires identification of documents that relate to any question raised by the pleadings. Presently Rule 29 provides four categories of documents to be discovered:

29.01.1 Scope of Discovery

...

(3) Without limiting Rules 29.05 and 29.07, for the purposes of this Order, the documents required to be discovered are any of the following documents of which the party giving discovery is, after a reasonable search, aware at the time discovery is given -

(a) documents on which the party relies;

(b) documents that adversely affect the party's own case;

(c) documents that adversely affect another party's case;

(d) documents that support another party's case.

20 Mr Hay SC for the Defendant tells the Court that the diary contains no entries beyond the date the first plaintiff was suspended.[8] It may well be that the diary contains nothing of relevance to the charges and events that underlie the malicious prosecution claims. However, the pleadings disclose that the arrest of the first plaintiff on 7 September 2016 and the commencement of disciplinary charges apparently arose out of a police investigation which included investigation of his conduct from at least February 2016.[9] The defence alleges the arrest of the first plaintiff was as result of a Professional Standards Investigation involving the North Melbourne CIU. The particular matters that are or might be relied on prior to 7 September 2016 to establish the lawfulness of the arrest and detention of the plaintiff at that time is not clear on the pleadings. However, there appears a connection between the arrest, the disciplinary charges and the work of the first plaintiff. If as is pleaded, the plaintiff was the subject of investigation in relation to his work, and this gave rise to the arrest, then his work diary over that period of time would be relevant to the issues of the arrest and the institution of disciplinary charges.

21 I conclude that the plaintiff's diary is discoverable.

[1] [2014] VSCA 238; (2014) 45 VR 119 (Nettle AP, Santamaria and Beach JJA).

[2] Ibid 126 [28] (citations omitted).

[3] [2019] VSCA 203 (Beach, Hargrave JJA and Sifris AJA).

[5] [1999] HCA 36; [1999] 198 CLR 180.

[7] Defendant's Amended Defence, 20 July 2020 [32].

[8] The first plaintiff was suspended on 7 September 2016.

[9] See Defendant's Amended Defence (n 7) [30A(c)] and Plaintiffs' Amended Statement of Claim paragraph 15 with reference to events in August 2016 and Plaintiffs' Further and Better Particulars, 28 May 2020, [A1], [A5].