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[2010] VSC 200
Supreme Court of Victoria
2010-05-19
KYROU J
Original judgment source is linked above.
APPLICATION FOR LEAVE TO AMEND STATEMENT OF CLAIM TO ALLEGE TAMPERING WITH EVIDENCE.
Mrs Slaveska, as Litigation Guardian, appeared on behalf of the Plaintiff
1 On 29 April 2010, Mrs Slaveska applied to amend the statement of claim - which has already been amended six times - to add the following paragraph ('proposed paragraph'):
Subsequently, the fourth, fifth, sixth, seventh, twentieth, twenty-second, twenty-third and twenty-fourth Defendants, acting jointly or one or all of them engaged in editing/cutting and tampering with the recorded video footage on 13 December 2005 at 10 May Road, Lalor in the State of Victoria including removing parts of the video footage.
**2 Mrs Slaveska made the application in her capacity as litigation guardian and lay advocate for Mr Slaveski.[1]
3 For the reasons that follow, I have decided to refuse the application.**
**4 The twenty-ninth of April 2010 was the seventy-fifth day of the trial. Mr Slaveski's case closed on 10 March 2010, save for three matters which were unrelated to the proposed paragraph. As at 29 April 2010, 16 witnesses for the defendants had completed their evidence.
5 The proposed paragraph relates to the fifth of 13 incidents that form the subject matter of this proceeding. That incident involved the arrest of Mr Slaveski outside his shop at 10 May Road, Lalor ('shop') on 13 December 2005 and the execution of a search warrant inside the shop immediately after the arrest. The arrest and the execution of the search warrant were videotaped by the twenty-second defendant who, together with six other detectives, attended the shop on that day. All of these detectives are defendants.
6 The defendants were not obliged to videotape the arrest or the execution of the search warrant. Ironically, the video footage was taken in order to minimise the potential for complaints by Mr Slaveski about the police conduct in relation to the arrest and the execution of the search warrant.
7 As at 29 April 2010, the statement of claim, as amended,[2] pleaded the following causes of action against the fourth, fifth, sixth, seventh, twentieth, twenty-second, twenty-third and twenty-fourth defendants ('relevant defendants'):**
(a) assault, battery and false imprisonment arising from the allegedly unlawful arrest and handcuffing of Mr Slaveski;
(b) trespass to land arising from the allegedly unlawful execution of the search warrant at the shop, including unlawful filming and photographing inside the shop;
(c) trespass to goods arising from the alleged inspection of documents which were not listed in the search warrant; and
(d) conversion, constituted by the alleged theft of documents, evidence and recording equipment from the shop.
**8 When Mr and Mrs Slaveski gave evidence, they asserted that the video footage had been tampered with in various ways. As at 29 April 2010, Mrs Slaveska had completed her cross-examination of the twenty-second defendant and was in the course of cross-examining the sixth defendant. It is these two defendants that are the most directly affected by the proposed paragraph. Both defendants were extensively cross-examined over many hours about the alleged tampering of the video footage.
9 After 29 April 2010, the fourth, fifth, twentieth and twenty-fourth defendants were also extensively cross-examined about the alleged tampering of the video footage.
10 The defendants did not object to the cross-examination. All allegations of tampering were strenuously denied during the cross-examination.
11 I had understood that Mrs Slaveska was seeking to rely on evidence about the alleged tampering of the video footage to attack the credit of the relevant defendants and to support proposed submissions that I should draw adverse inferences against the relevant defendants. In these proposed submissions, the adverse inferences would arise from the allegation that the relevant defendants had destroyed parts of the video footage. I had not understood that the proposed paragraph was seeking to allege an additional cause of action.
12 On 29 April 2010, I refused leave for the proposed paragraph to be included in the statement of claim on the basis that it did not set out any fact that was material to any of the pleaded causes of action. At Mrs Slaveska's request, I gave her an opportunity to reapply for leave after receiving legal advice.
13 On 11 May 2010, following receipt of legal advice, Mrs Slaveska reapplied for leave. She read out a statement in support of the application. That statement is set out and discussed below.**
**14 Rule 13.02(1)(a) of the Supreme Court (General Civil Procedure) Rules 2005 (Vic) provides that every pleading must 'contain in a summary form a statement of all the material facts on which the party relies, but not the evidence by which those facts are to be proved'.
15 The proposed paragraph does not set out any facts that are material to the causes of action listed at [7] above. Nor does it specify particulars of any material fact. As such, it does not qualify for inclusion in the statement of claim.
16 The position may be contrasted with paragraph 60 of the statement of claim, which pleads the cause of action of malicious prosecution against the eleventh defendant. One of the particulars of malice is that the eleventh defendant 'altered' unrelated video footage that was critical evidence in the relevant prosecution.
17 The allegations in the proposed paragraph are relevant to the credit of the relevant defendants and to support submissions that might be made about adverse inferences that could be drawn against the relevant defendants if the allegations are found to be true. For these reasons, Mr and Mrs Slaveski were permitted to give evidence about the alleged tampering and to cross-examine the relevant defendants on that subject. The absence of the proposed paragraph from the statement of claim has not affected the giving of this evidence and it will have no bearing on whether any further evidence can be given in relation to the alleged tampering.
18 Given the seriousness of the allegations of tampering with the video footage, and their evidentiary relevance to the pleaded causes of action as set out at [17] above, I will make findings on the allegations when my reasons for judgment are published. The absence of the proposed paragraph will not prevent me from doing so.
19 The position would have been the same in respect of any allegation that the relevant defendants had destroyed or tampered with hard copy documents. The legal position is not altered by the fact that the allegations of tampering relate to video footage rather than a hard copy document.**
**20 As stated above, on 11 May 2010, Mrs Slaveska read out a statement in support of her application for leave to include the proposed paragraph in the statement of claim. The statement refers to the proposed paragraph as 'clause 37E'. This clause appeared in a draft statement of claim that was provided to the Court. The reference to the striking out of clause 37E is erroneous because leave has never been given for the clause to be added to the statement of claim.
21 The statement that Mrs Slaveska read out was as follows:**
Clause 37E should not be struck out for the following reasons. The allegations that it makes are allegations of fact that are relevant for the purpose of sustaining the plaintiff's cause of action which is in trespass and breach of duty. That is to say that they are relevant to facts in issue that have been raised directly in the pleadings. The allegations are relevant because they identify the defendants who interfered with and destroyed film which the plaintiff says ... provided evidence of the wrong that is alleged against him, namely that the defendants named in it did an act or acts which were designed to destroy evidence of that wrong.
The clause as drafted does not go to credit of the defendants who are identified. To argue that it does [is] to misunderstand the nature of an objection as to credit because such objections are relevant only in criminal proceedings by reason of the serious consequences that can follow from an accused person being convicted. And the other one is to make out an objection as to credit, it is necessary to make a [comparison] between what was said or done on one occasion and compare that with what was said or done on another occasion and then draw a conclusion that because of the inconsistency, the witness is not to be believed. That is to say objections as to credit involve making [comparisons].
Clause 37E does not do this. It does not ask the court to make a [comparison] of statements or actions on one occasion and compare them with those made on another. It makes an allegation of fact relevant to the cause of action. It identifies the various defendants as wrongdoers and it also identifies action which the plaintiff says constitutes a civil wrong for which there is a cause of action at law. In any event, even if evidence of the matters alleged in Clause 37E does go to the credit of, that is, reflects on the evidence of the named defendants who have been identified, it is nevertheless admissible by reason of s.55 of the Victorian Uniform Evidence Act now in force and applicable to these proceedings.
That section, on any reading, is sufficiently wide in its terms to permit such evidence to be adduced. Further, if evidence of the fact alleged in Clause 37E is not led, there will a deficiency in the plaintiff's evidence and the plaintiff will be open to the criticism that evidence of destruction or interference of the film was not led.
22 For the reasons I have already given, the proposed paragraph does not set out any material facts in relation to any pleaded cause of action. The references to objections as to credit are misconceived, as no such objections were made. The Evidence Act 2008 (Vic) does not apply because the hearing of this proceeding commenced before 1 January 2010. In any event, as I have explained, evidence about the alleged tampering has been admitted and will continue to be admitted.
**23 Mr Gipp of counsel, who appeared on behalf of the second to twenty-fourth defendants, opposed Mrs Slaveska's application. He submitted that, if the proposed paragraph was not seeking to raise a new cause of action, it was relevant only to credit and therefore it was inappropriate to include it in the statement of claim. Mr Gipp said that, if the proposed paragraph sought to raise a new cause of action, the only conceivable cause of action was misfeasance in public office. He submitted that, if the Court permitted Mr Slaveski to plead such a serious cause of action so late in the trial, the relevant defendants would be substantially prejudiced. He said that Mr Slaveski would need to be recalled for further cross-examination and an independent expert - possibly from interstate - would need to be engaged to examine the videotapes and to give evidence in relation to the allegations of tampering. He submitted that this additional evidence would prejudice the defendants by increasing the delays that have already been experienced in the case.
24 Ms Riddell of counsel, who appeared for the first defendant, adopted Mr Gipp's submissions.
25 In my opinion, the proposed paragraph is inadequate to raise the cause of action of misfeasance in public office because the paragraph, read in conjunction with the other paragraphs of the statement of claim, does not plead all of the material facts that are necessary to establish that cause of action. In any event, even if the proposed paragraph does fairly raise misfeasance in public office as a new cause of action, I would refuse the plaintiff leave to include it in the statement of claim because of the prejudice that would be caused to the relevant defendants as described by Mr Gipp.
26 Further, if the proposed paragraph is permitted, there will be prejudice to the administration of justice. This proceeding has already extended over an inordinate number of days. It is not only in the interests of the defendants for the hearing to conclude as soon as it can fairly do so; it is also in the interests of taxpayers and other litigants waiting for their cases to be heard by the Court. The introduction of a new cause of action at this late stage of the hearing will prolong the trial in a manner that is not in the public interest.
27 In Aon Risk Services Australia Ltd v Australian National University,[3] French CJ said:**
In the proper exercise of the primary judge's discretion, the applications for adjournment and amendment were not to be considered solely by reference to whether any prejudice to Aon could be compensated by costs. Both the primary judge and the Court of Appeal should have taken into account that, whatever costs are ordered, there is an irreparable element of unfair prejudice in unnecessarily delaying proceedings. Moreover, the time of the court is a publicly funded resource. Inefficiencies in the use of that resource, arising from the vacation or adjournment of trials, are to be taken into account. So too is the need to maintain public confidence in the judicial system.[4]
28 Certainly, his Honour's observations about the trial judge's responsibility to consider inefficiencies in the use of a publicly funded resource and the need to maintain public confidence in the judicial system are apt in this case.
[1] See Slaveski v Victoria [2009] VSC 596.
[2] In this description, I include amendments in respect of which I had given leave to amend but which had not yet been formalised in a further amended statement of claim.
[4] [2009] HCA 27; (2009) 239 CLR 175, 182 [5].
# Slaveski
State of Victoria & Ors \[2010\] VSC 200
(2009) 239 CLR 175