Haque v State of Victoria & Ors [2013] VSCA 316

2 Dr Zahidul Haque, the applicant, was the plaintiff in two County Court proceedings. In the first County Court proceeding, the applicant sued the State of Victoria. In the second County Court proceeding the applicant sued the State of Victoria and three police officers, Constable Natalie Bennett, Constable John Tsianakas and Constable Matthew Landy.

3 In the first proceeding, the applicant claimed damages from the State of Victoria in respect of three causes of action: false imprisonment, battery and defamation. The events giving rise to these alleged causes of action occurred when the plaintiff was arrested in La Trobe Street Melbourne on 9 August 2009 and placed in handcuffs.

4 In the second proceeding, the applicant claimed damages in respect of two causes of action: malicious prosecution and false imprisonment. The applicant alleged that the second defendant in that proceeding (Natalie Bennett) brought a malicious prosecution against him on 26 August 2008 relating to an alleged theft by him of two mobile telephones. This prosecution was maintained against the applicant until it was withdrawn in September 2010. The applicant's false imprisonment claim in the second County Court proceeding was brought in relation to an arrest of the applicant by third and fourth defendants (John Tsianakas and Matthew Landy) on 12 February 2010.

5 In both County Court proceedings, the applicant alleged that the State of Victoria was liable for the actions of the relevant police officers. Reference was made to s 123 of the Police Regulation Act 1958.

6 The two County Court proceedings were heard together by his Honour Judge Smith. The trial proceeded over some nine days in July and August of this year. On 27 August 2013, Judge Smith delivered a judgment in favour of the defendants in both proceedings.

7 By the operation of r 64A.02 of the County Court Civil Procedure Rules 2008 and r 64.03(1)(a) of the Supreme Court (General Civil Procedure) Rules 2005, the applicant was required to serve any notice of appeal within 14 days after the day of the decision of Judge Smith. The applicant did not do this. Instead, the applicant served a 45 page notice of appeal dated 30 September 2013 on the respondents on 4 October 2013. The notice of appeal was thus some 24 days out of time. The notice of appeal purported to cover both proceedings.

8 By summonses filed 25 September 2013, the applicant seeks an extension of time within which to serve a notice or notices of appeal. These applications were (at least initially) resisted by the respondents on the basis that the applicant has not provided any reasons for his delay in serving a notice of appeal. More significantly, the respondents contend that the applications should be refused because the applicant does not enjoy any reasonable prospects of success in overturning any part of the orders of Judge Smith. Essentially, it is contended by the respondents that it would be futile to extend time in respect of an appeal that has no reasonable prospects of success.

9 In his initial affidavits in support of his application to extend time to appeal, the applicant did not address squarely the reason why he did not file and serve notices of appeal within the time provided by the Rules. Specifically, in an affidavit affirmed on 14 October 2013, the applicant stated:

As the applicant was not a professional lawyer and representing his case by himself, the applicant make an application to the court for the extension of time for filing Notice of Appeal and the honourable court extend the time. There should be no question in relation to this matter.

10 In an affidavit affirmed on 25 October 2013, the applicant gave further detail as to why he did not serve a notice of appeal within the 14 day time limit. The applicant stated:

When the appeal matters comes from the Magistrates Court to the County Court the parties get 28 days time to file on appeal. Also when appeal matters come from the Supreme Court to the High Court the parties get 28 days time to file an appeal. When any criminal appeal matters come from the County Court to the Supreme Court the parties also get 28 days of time to file an appeal. Only when any civil appeal matters come from the County Court to the Supreme Court the parties only get 14 days of time. The applicant was not a professional lawyer and he was not aware about the time. And he thought that, summons with Notice of Appeal must be launched within 28 days of time.[1]

11 The applicant then deposes that he attended the Supreme Court Registry on 18 September 2013. I accept from the applicant's affidavit material that he attempted to commence an appeal to this Court within what he thought (wrongly) was the relevant time frame. I am prepared to accept that this is so, notwithstanding the applicant's previous experience in respect of appeals to this Court.[2]

12 One thing is clear from the material in this case, the applicant is a person who lacks relevant legal expertise and experience. The history of this proceeding is an unfortunate one - brought about in large part by the applicant's inability to understand and/or comply with relevant rules. That said, I am prepared on the material filed by the applicant to infer, on this occasion, that the applicant's tardiness was not deliberate - but the product of a general inability on his part to prosecute legal proceedings competently.

13 The delay in this case is not excessively long. The State concedes the delay has not caused it any prejudice. The material filed on behalf of the other respondents does not assert the delay has caused any prejudice. In the circumstances, it seems to me that the matter falls to be resolved by reference to whether or not it can be shown at this stage that the proposed appeal is so lacking in merit as to justify the refusal of an extension of time on the grounds of futility.

14 The notice of appeal that the applicant has served is some 45 pages in length. It is discursive. It is prolix. It is difficult to understand. It lacks a coherent structure. It does not comply with the Rules. The notice of appeal does not enable a reader of it to know with any sort of reasonable precision precisely what the applicant's complaints are in respect of Judge Smith's judgment.

15 Rule 64.05 of the Supreme Court (General Civil Procedure) Rules 2005 requires a notice of appeal to:

(a) state whether the whole or part only and which part of the decision of the court of first instance is complained of;

(b) state specifically and concisely the grounds of complaint; and

(c) state the judgment or order sought in place of that from which the appeal is brought.[3]

16 The applicant's current notice of appeal does not state specifically or concisely the grounds upon which he makes complaint. There are many authorities concerning the proper way in which notices of appeal should be drawn. Phillips JA referred to the principal authorities in this area in State of Victoria v Bacon.[4] In criticising uninformative notices of appeal, his Honour said:

More specifically ... to allege error in the drawing of some particular conclusion ... will often simply cloak what it is sought to put in issue. That the judge erred in making some particular finding, if of fact, may mean, inter alia, that there was no evidence at all to support that finding, or that the primary facts were not proved from which an inference was drawn, or that though there was evidence of those primary facts that evidence ought to have been rejected, or that the inference, though open, ought not to have been drawn. When the finding under attack is in truth of mixed fact and law, the allegation of error in arriving at the stated conclusion may conceal a contention that the judge misunderstood the law or, though properly understanding the principles, misapplied them; and where as here a statute is involved, the possibilities are often multiplied. This notice of appeal did nothing at all to resolve those difficulties.

17 As defective as the notice of appeal was in State of Victoria v Bacon, the notice of appeal in the present case is manifestly more problematic. It does not even descend to the level of specificity in respect of which criticism was made by Phillips JA. If this appeal is ever to proceed, the applicant's notice (or notices) of appeal must be put in proper form so that the various criticisms of the judgment below made by the applicant can be properly understood.

18 I should interpolate here that the applicant had a like difficulty formulating statements of claim in the County Court. There were multiple strike-out applications. When the trial commenced, the plaintiff's pleadings were still not in an intelligible and proper form. As his Honour described it:

At the commencement of the hearing, in order to properly determine the nature of the claims being brought in each of the pleadings, I clarified with Dr Haque the claims that he desired to bring against each of the defendants, and later reduced them to writing in a document entitled "Causes of Action". On the second day of the hearing and before the commencement of the evidence, I confirmed with Dr Haque that these were the claims that he desired to bring. Dr Haque signed that document and it was tendered. The defendants delivered a written response to those claims. [5]

19 With respect, in my view the trial judge is to be commended for taking such a sensible approach to the management of what was undoubtedly difficult litigation, which litigation would likely have been more difficult but for this approach. That said, lest there be any doubt, this Court is not in a position to formulate grounds of appeal for the applicant.

20 Central to the respondents' resistance of the plaintiff's application for an extension of time is their submission that any appeal from Judge Smith's orders would be bound to fail and therefore, it is said, it would be futile to extend time. However, a difficulty with the respondents' futility submissions is neatly encapsulated in a written submission made on behalf of the State:

It is impossible to discern the basis of the applicant's challenge to the trial judge's decision in both proceedings in his proposed notice of appeal ... . The notice of appeal fails to comply with r 64.05(1) ... as it does not state which part of the decision of the Court at first instance he complains of or specifically and concisely the grounds of complaint.[6]

21 Notwithstanding this difficulty, the respondents submit:

An objective analysis of the judgment establishes there is no real prospect of success on an appeal, especially when the primary challenge appears to be against the findings of fact by way of merits review.

22 The short answer to this submission is that, while the judgment appears to be logical, coherent and well reasoned, it is not possible to reach the degree of satisfaction necessary to say that any appeal from it is so devoid of merit as to justify refusing the applicant the extension of time he seeks. It is to be remembered that any appeal is an appeal by way of rehearing in accordance with the principles set out in Fox v Percy.[7] Merely because the appeal might be characterised as a challenge against findings of fact by way of merits review does not mean that the appeal cannot have substance.

23 Additionally, it seems to me there is at least one point capable of sensible argument on appeal. In relation to the application of handcuffs in La Trobe Street on 9 August 2009, the respondents conceded at trial that police officers were not entitled to use handcuffs merely because a person had been arrested. As the learned trial judge put it:

All of the circumstances must be examined to determine whether there were reasonable grounds for their use. If the Court considers that the use of handcuffs was unreasonable, this may constitute a battery.[8]

24 After analysing the evidence in respect of the reasonableness of using handcuffs, his Honour said:

In all the circumstances, although I am not convinced that Dr Haque constituted a danger to police officers, members of the public or to himself, I am not satisfied that Dr Haque has discharged the onus of showing that the actions of the police officers involved was [sic] unreasonable in all of the circumstances.

Accordingly, Dr Haque's claim in respect of battery is not made out.[9]

25 In my view, the question of whether the onus was upon Dr Haque to establish lack of reasonableness, or upon the respondents to establish reasonableness, in relation to the handcuffs is well arguable. Support for the respondents' position can be found in the analysis of Scholl J in McClelland v Symons.[10] However, support for the proposition that it was the respondents who bore the onus in respect of reasonableness can be found in the New South Wales Court of Appeal's decision of Underhill v Sherwell,[11] where the Court declined to follow the analysis of Scholl J in McClelland v Symons. Further, the relevant reasoning in Underhill v Sherwell on this issue has most recently been followed in this Court's decision of Watkins v State of Victoria.[12]

26 If Dr Haque was wrongly held to have an onus in respect of the reasonableness issue in relation to the handcuffs, then it remains possible that his claim for battery was wrongly dismissed. If Dr Hacque's claim for battery was wrongly dismissed, then it may be that his claim for defamation needs to be looked at again. One thing that can be said about the cause of action in defamation is that the meaning of any allegedly defamatory publication is rarely a matter so free from doubt as to make an appeal in relation to meaning unarguable (or at least so unarguable as to deny a party a hearing).

27 While the matters to which I have just referred relate only to the first County Court proceeding, the facts and issues in both County Court proceedings are so intertwined as to make it unrealistic to determine that any appeal in relation to the second County Court proceeding is so lacking in merit as to be futile.

28 It follows that I would, but for the improper form of his current notice of

appeal, grant the applicant the extension of time he seeks within which to file and serve notices of appeal. I would not grant this extension in respect of the current notice of appeal. In my view, if the applicant wishes a favourable exercise of discretion so as to permit him to appeal out of time, he must file and serve a notice which is intelligible, coherent, not prolix and not discursive. Such a notice (or notices) should set out in short form the precise complaints the applicant makes in respect of the judgment below. It should also comply with the rules and authorities to which I have referred. Ideally, I would not expect it to be more than four pages in length.

29 It follows that in my view the application for an extension of time should be adjourned to a date in two or three weeks time. In the interim, the applicant should file and serve a proposed notice of appeal or notices of appeal which are clear, concise and conform with the Rules.

30 When the matter next comes before the Court, I would envisage that if the applicant has filed and served a proposed notice of appeal or notices of appeal which comply with the Rules and make clear the precise complaints he makes then, subject to any futility submission that might then be made, his application for an extension of time would likely be granted. On the other hand, failure to serve a proper notice of appeal would likely place the applicant at risk of the dismissal of his applications.

[1] Affidavit of the applicant affirmed 25 October 2013.

[2] Haque v Victorian Police [2010] VSCA 219 (Redlich JA and Beach AJA).

[3] See also s 74(2B) of the County Court Act 1958.

[4] [1998] 4 VR 269, 285.

[5] Haque v State of Victoria [2013] VCC 1035 ('Reasons') [6].

[6] See [7] of the State's written submissions dated 16 October 2013.

[7] [2003] HCA 22; (2003) 214 CLR 118.

[8] Haque v State of Victoria & Ors [2013] VCC 1035 ('Reasons') [98].

[10] [1951] VicLawRp 21; [1951] VLR 157, 169-73. The decision of Scholl J was affirmed on appeal, but the Full Court dealt with the appeal in a way that rendered it unnecessary to 'enter upon the field so elaborately covered by the learned trial judge' (Ibid 174).

[11] [1997] NSWCA 325.

[12] (2010) 27 VR 543, 561[74].