Skrijel v Mengler [1998] VSC 71

Supreme Court of Victoria|1998-10-05|Before: Eames, J.

Joinder of defendant - Limitation of Actions Act 1958 s. 27(b) - Actions for misfeasance in public office and conspiracy - Whether right of action was concealed by fraud of defendant.

This is an appeal from a decision of Master Evans made on 29 July 1998 whereby, upon application by the plaintiff, Master Evans made orders joining Gary Western Cook as the thirdnamed defendant and State of Victoria as the fourthnamed defendant. The third and fourthnamed defendants now appeal against those orders joining them as parties to the action.

The plaintiff/respondent was unrepresented before me in the appeal which I heard sitting in the Practice Court, and has been unrepresented throughout the course of these proceedings. As one might expect, his pleadings betrayed many of the failings to be expected when the draftsperson is not a lawyer. The absence of a legal representative did not render it easier to follow the submissions which the plaintiff addressed to me. The proceedings have a long history, having commenced in April 1993 and it is necessary to give some background to the proceedings so that the issues considered by me on the appeal may be properly understood.

On 15 October 1985, 37 armed police officers raided the premises of the plaintiff at Digby. Present during the raid was the thirdnamed defendant, a police officer to the fingerprint section of the Victorian Police. The police seized a number of items and removed the plaintiff to the Casterton Police Station where he was charged with the offences of cultivation of cannabis, possession of cannabis and possession of a shortened firearm. At a later stage he was charged with further offences, namely, trafficking in a drug of dependence and possession of explosives. On 11 March 1987 a County Court trial commenced and on 1 April 1987 the plaintiff was convicted of the offences of cultivation of a drug of dependence, trafficking in a drug of dependence, possession of explosives under suspicious circumstances and, possession of a pistol without a licence. The last mentioned offence was a summary offence.

The plaintiff appealed against his convictions and appeared unrepresented on his appeal. On 6 May 1988 the Court of Criminal Appeal set aside all convictions and granted a re-trial with respect to the three indictable offences. As to the summary offence of possession of a pistol without a licence, it appears that a plea of guilty had been recorded on behalf of the plaintiff, but he asserted before me that such a plea was entered, without his instructions, by his counsel at trial. The plaintiff alleged that by virtue of his prosecution he had served some six months' imprisonment prior to being released upon the overturning of his conviction.

On 30 June 1989 the Director of Public Prosecutions entered a nolle prosequi in respect of the three indictable offences.

On 1 April 1993 the plaintiff issued a writ against the first defendant and against the National Crime Authority. An order made by Master Evans substituted the Commonwealth of Australia for the National Crime Authority and there is no appeal before me with respect to that order. In the original statement of claim, which was endorsed on the writ, the causes of action are not made clear but subsequent amendments to the pleadings indicate that the cause of action at that time was one of malicious prosecution.

It is difficult to know precisely what statement of claim is presently that upon which the plaintiff relies. In his reasons for decision Master Evans identified what he called "the proposed statement of claim", which appears to be an undated document of some 84 paragraphs, titled "Amended Statement of Claim". During the course of the hearing before Master Evans the Master made various comments and suggestions (as he did in his reasons for decision, also) as to amendments and corrections which could be made to the amended statement of claim. Master Evans suggested that the defendants should be slow to take pleading objections to any further amended pleading. Filed in court subsequently, and dated 28 August 1998, was a document titled, "Amended Statement of Claim Delivered Pursuant to the Order of Master Evans made on 29 July 1998". Counsel for the third and fourthnamed defendants took no exception to this document being treated as the plaintiff's statement of claim. Although it is not at all clear, it appears not to be disputed that Master Evans did in fact make an order approving delivery of a document, in those terms, or similar, as the plaintiff's further amended statement of claim.

This latest document, once again, reflects the deficiencies of pleadings being drawn by a non-lawyer, and contains a good deal of argument, comment on evidence and discussion of law within its terms.

The claim against the fourthnamed defendant is solely a vicarious liability claim based on the fact that the thirdnamed defendant was the servant or agent of the fourthnamed defendant. The first head of claim in the action against the third and fourthnamed defendant relates to misfeasance in public office. The second claim relates to an allegation of conspiracy, in which it is alleged that the first and thirdnamed defendants in or between 1985 and 1997 "wrongfully and maliciously conspired and combined amongst themselves to bring about the laying of the charges and otherwise to injure the plaintiff in his reputation and business". The penultimate statement of claim had pleaded numerous other causes of action including negligence, abuse of process and malicious prosecution. All of those claims were either struck out by Master Evans or have been abandoned.

The summons in which the plaintiff applied for leave to join the third and fourthnamed defendants was in fact served on the thirdnamed defendant. Counsel, for both third and fourthnamed defendants, therefore, appeared on their behalf to oppose the application for joinder.

The cause of action for misfeasance in public office is a tort, as is the cause of action based in conspiracy: Farrington v Thompson [1959] VicRp 49; (1959) VR 286; Little v Law Institute of Victoria [1990] VicRp 25; [1990] VR 257. Before the Master it was argued by counsel for the third and fourthnamed defendants (and was also argued before me) that the causes of action as against the third and fourthnamed defendants were statute barred and, accordingly, no order should have been made joining them as defendants.

By s. 5 of the Limitation of Actions Act 1958 proceedings in tort shall not be brought after the expiration of six years from the date on which the cause of action accrued. It was submitted on behalf of the defendants that the cause of action in tort accrued when the cause of action was complete, and that the cause of action in tort is complete when damage occurs by virtue of the tortious act: Hawkins v Clayton (1988) 164 CLR 539 at 561, 587 and 599.

On behalf of the defendants it was submitted that both the cause of action with respect to conspiracy and the misfeasance in public office action were, therefore, complete at the date of conviction on 1 April 1987. (There is some uncertainty in the material before me as to the precise date on which the plaintiff was convicted of offences, by verdict of the jury. I am assuming, without deciding, that 1 April 1987 is the correct date, as some of the material seems to indicate).

Where a party is joined as a defendant the proceeding against that defendant commences upon the amendment of the filed originating process to reflect that joinder (see RSC Order 9.11(3)(a)). Accordingly, the third and fourthnamed defendants submitted, through their counsel, that they should not have been joined as defendants where the plaintiff's claim was clearly statute barred: see Ketteman v Hansel Properties Ltd [1987] AC 189; Fernance v Nominal Defendant (1989) 17 NSWLR 710 at 731.

The Master appears to have accepted the defendants' contention that the proceedings were statute barred, and, therefore, considered that if the plaintiff was to be permitted to join the third and fourthnamed defendants he needed to demonstrate that by virtue of s. 27(b) of the Limitation of Actions Act 1958 it was arguable that the period of limitation would be deemed as not having run so as to debar his action. In the hearing before me the plaintiff/respondent did not seek to contend that were it not for the operation of s 27(b) his action would, indeed, be statute barred. I have considered the appeal on the assumption that that is so, but I am not called upon to decide whether, as a matter of fact or law, the writ was issued outside the limitation period. It may well be arguable that if the cause of action was complete on 1 April 1987 then a writ issued on 1 April 1993 was not out of time. Furthermore, even if the cause of action is complete upon the occurrence of damage it might well be thought that the damage suffered by the plaintiff was of a continuing nature which ended only with his release from prison on 6 May 1988. It is to be noted, however, that in Hawkins v Clayton, supra, Brennan J, at 561, held that a cause of action in tort accrued when the plaintiff first suffers damage (see, too, Deane J at 587).

On raising these latter issues I stress that I have not researched them, and I make no comment as to whether there is any substance in them.

Section 27 of the Limitations of Actions Act 1958 provides that where:

"(a) The action is based upon the fraud of the defendant or his agent or of any person through whom he claims or his agent; or (b) the right of action is concealed by the fraud of any such person as aforesaid; or (c) the action is for relief from the consequences of a mistake - the period of limitation shall not begin to run until the plaintiff has discovered the fraud or the mistake, as the case may be, or could with reasonable diligence have discovered it..."

The plaintiff submitted before the Master, and repeated before me, that the right of action against the third and fourthnamed defendants was concealed by the fraud of the thirdnamed defendant.

To understand the allegations of fraudulent concealment it is necessary to return to the pleadings and, there being no objection to my so doing, I will refer to those pleadings as they purport to have been amended pursuant to the order of Master Evans on 29 July 1998.

The plaintiff's allegations against the third and fourthnamed defendants in support of the pleaded torts are that Cook, a sergeant of police stationed at the Fingerprint Bureau at Russell Street, Melbourne, at the relevant time, was a fingerprint expert, and had fabricated evidence as part of a conspiracy with other police officers, and the National Crime Authority, in order to "frame" the plaintiff.

I will detail the allegations of fact as they were made by the plaintiff/respondent on the return of the appeal before me in the Practice Court. As I have noted, the plaintiff/respondent made many assertions of fact from the Bar table, not all of which had been supported by affidavit evidence. After hearing argument for most of a day the appeal was adjourned for mention, at a later date, but I indicated to the parties that I would permit the plaintiff to provide some additional written argument in response to the submissions of counsel for the appellants. Prior to the mention date, the plaintiff/respondent forwarded substantial written argument and this led to an application, which I granted, for the thirdnamed defendant to file an additional affidavit. Many of the plaintiff's allegations of fact, made during the course of the hearing on the first day were challenged in that later affidavit. I will deal with the responses made in that affidavit in a separate section, later, in these reasons for decision. For the moment, I will identify the assertions of the plaintiff as they were advanced before me prior to receipt of the later affidavit from Cook. The assertions which I state in the following passages may be taken to reflect the assertions of fact at their highest made by the plaintiff.

Cook attended in the raid on 15 October 1985 and apparently gave evidence in the trial that in a shed at the premises he found a .22 calibre sawn-off rifle, serial number 022019 (the maker of which was Cooey). Cook's statement in the depositions stated that he developed a latent fingerprint "on the barrel housing" of the rifle, and photographed it. Cook further stated that he entered a separate room of the shed and there applied fingerprint powder to a green plastic drum. His statement continued that he "developed latent fingerprints on the black plastic lid of the drum and photographed them".

In his statement of claim the plaintiff asserts that Cook "forged a photograph which the thirdnamed defendant purported to be a photograph of the fingerprint from the plaintiff on the barrel of the rifle". In paragraph 16 of his statement of claim (pleading particulars of malice against the firstnamed defendant) the plaintiff alleged that the Cooey rifle had been broken into two parts, and had been placed on the workbench in the plaintiff's shed by the firstnamed defendant, in pursuance of the conspiracy against the plaintiff. Notwithstanding the plea of guilty as to its possession, entered on his behalf by his counsel, the plaintiff denies knowledge or ownership of the Cooey gun. As to the green plastic drum, the plaintiff alleges against the thirdnamed defendant that he gave false evidence that a latent palm-print had been found on the lid of the drum at the premises of the plaintiff. In particulars of malice directed against the firstnamed defendant the plaintiff alleges that the firstnamed defendant had removed or caused to be removed the green plastic drum and the black lid from a shed on the premises of the plaintiff, and having done so, replaced the contents of the drum with explosive substances and cannabis so as to falsely implicate or "frame" the plaintiff. It is alleged against the firstnamed defendant that he also falsified evidence concerning the finding of the palm-print of the plaintiffs on the lid of the green plastic drum.

It is to be noted that, at all times, the plaintiff says that he knew he was the victim of a conspiracy and that the evidence of finding his finger print on the Cooey rifle and his palm-print on the lid of the plastic container was false evidence which had been fabricated by the police. He says, however, that he did not know which police officer or officers were responsible for fabricating that evidence, nor did he know precisely how the falsification of the evidence was achieved. In support of his application for joinder of the third and fourthnamed defendants he argues that by virtue of the facts of which he has only recently become aware (and which had been concealed by fraud) he has now discovered that the person responsible for the fabrication of those items of evidence was Cook and, therefore, the right of action against Cook was only discovered this year, by virtue of information obtained in a report prepared by an independent fingerprint expert, Mr Butcher. Accordingly, the period of limitation with respect to his claims against Cook and the fourthnamed defendant did not commence to run until he discovered the fraud of Cook who, until that time, had concealed his identity as the person who had actually been responsible for fabricating that evidence against him. Cook, therefore, had been guilty of misfeasance in public office and/or of conspiracy with the firstnamed defendant.

On behalf of the third and fourthnamed defendants it was submitted to the Master, and was submitted to me, that the plaintiff's right of action (if any) against Cook was not concealed by any fraud but that the matters to which the plaintiff refers as having come to his attention only this year are no more than pieces of evidence on which the plaintiff might rely in proof of his claims for the torts of misfeasance in public office and conspiracy. The new information which he has obtained does not constitute disclosure of a cause of action, or right of action, which had been concealed by fraud, so it is submitted. Master Evans, however, accepted the argument advanced by the plaintiff, and in his reasons for decision held:

"It is, in my view, at the very least arguable that dishonest concealment of the means by which the cause of action may be proved constitutes concealment of the cause of action within the meaning of these words as used in s. 27."

As my reasons will demonstrate, I do not, with respect, agree with the Master as to that proposition, although the conclusion which I reach, for different reasons, is the same as that reached by the Master.

To understand what new information is identified by the plaintiff as having been concealed by fraud, it is necessary to explore some of the history of the plaintiff's pursuit of redress in this matter.

In pursuit of his allegations of conspiracy the plaintiff made complaints to State and Federal governments and, as a result, the Commonwealth Attorney-General appointed Mr David Quick QC to report to him on circumstances surrounding the proceedings against the plaintiff. Mr Quick reported on 4 April 1995. Only a short extract from that report was tendered before me by the plaintiff/respondent in opposition to the appeal. The Commonwealth Minister for Justice, having received that report, then referred the matter to the Victorian Deputy Ombudsman (Police Complaints), Mr Perry. The Ombudsman, in turn, sought a report from a fingerprint expert, Mr Keith Murdoch, because the plaintiff had made an allegation that the fingerprint evidence with respect to the Cooey rifle was fabricated. The plaintiff told the Ombudsman that he had wanted to examine the photograph of the fingerprint which the police claimed had been obtained, but his enquiries to police in that regard were met by the response that the photograph no longer existed. In a letter to him the Ombudsman said that that advice from the police had been wrong. The Ombudsman continued:

"A black and white Polaroid photograph of a fingerprint which police claim to have found on the barrel of the shortened Cooey firearm on the day of the raid at your property at Digby is retained by the Victoria Police Fingerprint branch. This is one of the issues I am investigating in connection with the complaint received from the Minister for Justice. I have arranged for an Interstate fingerprint expert to come to Melbourne to examine the photograph. The results of that examination will be included in my report to the Minister."

On 12 February 1997 the expert, Mr Keith Murdoch, wrote the first of the two reports which are relevant in this case. His task was to examine the photograph, which purported to be a photograph of the fingerprint on the Cooey gun, to determine whether there was any evidence that it was a forgery insofar as it purported to be evidence of the plaintiff's fingerprint on that gun. The Ombudsman did not himself have a copy of the photograph in order to conduct his investigation and Murdoch attended the fingerprint section at Victoria Police Department on 11 February 1997, in order to view a copy of the photograph. When he attended there he was met by two police officers, one of whom was the thirdnamed defendant, Gary Cook. Murdoch was provided with some comparison fingerprints, taken from the plaintiff, and with what was called "a Polaroid photograph showing portion of a wooden rifle stock upon which a fingerprint in white powder has been developed". It was represented to Murdoch that this was the fingerprint evidence which had been tendered in the trial, and which was in dispute. On carefully examining that photograph of the fingerprint - "for evidence of the print having been transposed to the rifle stock, as alleged" - he concluded that there was no evidence to support the allegation of forgery. Murdoch concluded that there was no evidence from the photograph that there had been any transference of the fingerprint (which was undoubtedly that of the plaintiff) by means of an adhesive tape so as to transfer it onto the rifle stock shown in the photograph which he examined.

On 31 March 1998 Murdoch returned to the issue by swearing a statutory declaration relating to new information which had come to his attention. In effect, a third person had informed Murdoch that he had been misled some 12 months earlier, when he had attended at the Fingerprint Section on 11 February 1997. Murdoch said that when he had attended the Fingerprint Section and had spoken to Gary Cook he was "given to understand that the only fingerprint related documents available were a Polaroid photograph of a thumb print (actual size), and two sets of fingerprints". He said he had asked at the time whether he could see the weapon on which the fingerprint had been found, but he was given to understand that the fingerprint was developed on a shortened firearm which had subsequently been destroyed by court order.

Murdoch said that subsequently, through the third party, he had obtained a series of other relevant materials, none of which had been provided to him before. In particular, he had obtained a photographic enlargement of a fingerprint which purportedly had been found on a cylindrical object. The photograph showed a label which was photographed close to the fingerprint. On the label were recorded details which included the serial number of the Cooey rifle. Also written were the words "casing of gun". Among many other items which he now received, he obtained photographs of a large plastic drum with a black screw lid and a photograph of a palm print purportedly found on the lid of the large plastic drum. Having considered all this additional material Murdoch then wrote, in a statutory declaration dated 31 March 1998: "I now have reason to believe that additional documentary information which was in existence, had not been made available to me at the time. Accordingly, I believe that my examination concerning the question of a fingerprint forgery was compromised. For example, there was no mention of the fingerprint purportedly developed on the cylindrical object, either verbally at the time, or by means of the photograph enlargement."

The material placed before the Master, and then initially before me on the appeal, arguably demonstrated, when taken together with the deposition statement of Cook, that Cook, knowing that Murdoch was conducting an investigation into allegations that fabricated evidence had been provided by Cook at the trial of the plaintiff (whether knowingly on his part, or not), had sought to mislead Murdoch by providing a photograph to him which did, indeed, show a fingerprint of the plaintiff, which falsely purported to be the fingerprint photograph which had been presented in the trial, and falsely purported, too, to be the photograph which the Ombudsman had asked to be examined for the purpose of testing the complaint made by the plaintiff.

As to the photograph of the cylindrical object, the label which was photographed alongside the fingerprint supports the suggestion that this was indeed the photograph which was tendered at the trial and which, according to Cook's deposition, was a fingerprint found "on the barrel housing of the rifle". In his statutory declaration Murdoch said it was not possible for there to have been a barrel housing on the Cooey rifle, because, having now received from the third party, and examined, photographs of the Cooey rifle, it did not possess a barrel housing (which was a description of a wooden stock, forward of the breech mechanism and extending under the barrel). Accordingly, it was, again, arguable that if the photograph of the cylindrical object was the photograph which was tendered at the trial then it could not have been a photograph of a fingerprint on the barrel housing, or the casing, of the Cooey rifle. It may well have been a photograph of a fingerprint of the plaintiff, but one which appeared innocently on a second rifle which had been at the scene, one which the plaintiff admitted he owned and had been at his premises, but which was not an illegal weapon. The second rifle is actually shown in the tendered photograph of the Cooey rifle, in pieces, which was in a position close by, and on the workbench on the plaintiff's premises.

The plaintiff argues that this information provided by Murdoch is not merely additional evidence which adds strength to the proof of his already existing causes of action, but constitutes proof that his right of action had been concealed by the fraud of Cook. He had only discovered the fraud once Murdoch's report disclosed to him that the photograph referred to in the statement of Cook in his depositions could not have been a photograph of a fingerprint found on the Cooey rifle.

I note, again, that these contentions of the plaintiff were all substantially challenged in the further affidavit of Cook, to which I will later refer. I note that the report of the Ombudsman which was tendered before me concluded that there was no evidence to sustain the conclusion that the plaintiff had been the victim of a conspiracy.

Additionally, the plaintiff refers to comments made by Murdoch in his report concerning the palm print on the lid of the plastic container. Murdoch commented that the lid upon which the portion of the palm print was developed was clearly of a type different to the lid attached to the large plastic drum. The plaintiff asserts in his amended statement of claim that the green plastic drum and its black lid were returned to him on 5 March 1990. He does not suggest that Murdoch has proffered any scientific evidence relating to the drum. Murdoch merely observed that the lid of the drum on which the palm print appeared did not appear to belong to the drum, even though it appeared to fit the drum.

Amongst material which the plaintiff said he obtained under freedom of information legislation (having been obtained only in 1998) is a minute by Gary Cook written to the officer in charge of the fingerprint bureau on 25 October 1985. That document, the plaintiff says, has never previously been disclosed to him, either during his trial or at any other time. In that report Cook referred to his attendance at a cannabis plantation in a state forest some hours before the raid which took place on the plaintiff's property. During that search at the forest a number of items were seized, and he said he developed three unidentified latent fingerprints on pieces of masking tape. The plaintiff refers to that, also, as being evidence which would have assisted him in his trial to demonstrate that he had nothing to do with the cannabis trafficking and that there must have been other persons, whose identities were not known, who were involved. It is the plaintiff's contention that the raid was conducted because he was in the process of exposing a drug syndicate which had powerful connections to police officers and law enforcement agencies.

As to the plastic drum, the plaintiff says that upon recovery of the items it was apparent that the lid of the plastic container was not the lid which would properly belong to that container, but was in fact the lid of a coffee canister which had been placed on the plastic container. In other words, his allegation is that an innocent item, the coffee container lid, on which his palm print had appeared, had been removed from his residence and had been used as the lid on the plastic container into which drugs and explosives had been placed by the police. He said that once he learned, from Murdoch's report, that Cook had been responsible for fabricating fingerprint evidence concerning the gun, it therefore followed that Cook was the person who had been responsible (if not alone, then at least, as a knowing participant, himself) in conspiring to have evidence led that the lid of the plastic container with his palm print was in fact found on the plastic container rather than from it being placed there by police. Cook, therefore, knew that it had been transferred from the house of the plaintiff, and came from a coffee container.

I will now refer to the additional material which was placed before me in a supplementary affidavit of Cook.

The hearing of this appeal could not be concluded on the day I sat in the Practice Court. Both counsel for the third and fourth defendants and also the appellant advised that they wished to make further written submissions to me, and I listed the matter for mention at a later date, and made orders for the filing of further submissions by counsel, and for a written response by Mr Skrijel. At the mention I gave leave, which was not opposed, for the thirdnamed defendant to file a further affidavit. I further adjourned the matter so that the plaintiff could consider and respond to that affidavit. I gave leave to file the additional affidavit in part because a good many contentious assertions had been made from the bar table by Mr Skrijel and in the written material which he had filed at the return of the matter for the mention.

The new affidavit from Mr Cook constitutes a substantial challenge to the entirety of the contentions which were made by the plaintiff on the material presented before me. Mr Cook asserted in his affidavit that Mr Skrijel had created an edifice of supposedly newly discovered, and previously suppressed, facts by seizing on what he knows to have been an innocent misdescription by Cook, in his deposition, of that part of the gun which was the location of the fingerprint on the Cooey rifle. Then Skrijel expanded his case by merely asserting that it was in fact a photograph of his thumbprint on the stock of another rifle which had been tendered at the trial (which was at the scene). Cook asserts that the entire conspiracy theory depends on there having been fingerprints found and photographed on the other rifle and he denies that that occurred. Far from Cook having in any way misled Murdoch, Mr Cook deposes that Murdoch had been misled by Mr Skrijel who had presented material to Murdoch, through an agent, falsely pretending that it had been produced from the police by way of a freedom of information request and pretending that it demonstrated that the photograph which Murdoch had originally been given to examine was not the exhibit presented in court. To further mislead Murdoch, the "new" photograph had been "doctored" by Skrijel or his agent to hide the court exhibit references which appeared on the original.

Apart from challenging, in great detail, the assertions made by Mr Skrijel as to the provenance of the material provided to Murdoch, Mr Cook asserted that Mr Skrijel has fabricated additional evidence upon which he relies; in particular, Mr Skrijel has produced a photograph of what he claims is the Cooey rifle but which is also faked, because the rifle was destroyed after he pleaded guilty to being its owner. Mr Cook also provided additional information which challenged the credibility of Mr Skrijel, in particular, noting that his credibility was doubted in the report of the Deputy Ombudsman, and the claims of conspiracy were entirely rejected.

In my view, this new material (which goes well beyond the scope of the leave which I granted for the filing of additional evidence), as powerful as it seems, and as compelling as it may prove to be, is incapable of being evaluated on an interlocutory application. The disputed questions of fact are appropriately to be dealt with at trial.

Having detailed all of this material, the issue before me comes to this. Assuming, at its highest, that the information which has been obtained under freedom of information, and by virtue of the investigations of Mr Murdoch, had all been concealed from the plaintiff until this year, did that constitute "the right of action (being) concealed by the fraud..." of the thirdnamed defendant or his agent?

I am not persuaded that the defence to the statute of limitations defence, at this stage, has been shown to be so untenable that the plaintiff should be denied the right to bring the proceedings.

"Fraud", in this context, involves a consciousness that what is being done is wrong or that to take advantage of a relevant situation involves wrongdoing. The section is not confined to simple common law fraud, but extends to conduct beyond that, which involves some form of dishonesty or moral turpitude: see Hamilton v Kaljo (1989) 17 NSWLR 381 at 386; Seymour v Seymour (1996) 40 NSWLR 358, at 371-2.

On behalf of the third and fourthnamed defendants it is submitted that the "right of action" was complete when the damage was suffered by the plaintiff upon his conviction and imprisonment. Furthermore, it is submitted, the plaintiff knew, then, that he had a right of action against Cook for misfeasance in public office and conspiracy. The "right of action" was not concealed by any fraud with respect to the evidence concerning the gun or the plastic container. At its highest, the defendants submit, the information which has been discovered by the plaintiff this year would, had it been disclosed earlier, have assisted him both in his decision as to whether to prosecute the claim and as to his prospects of success if he did pursue any rights of action which he had. As to there having been a right of action, the plaintiff, at all times, knew and asserted that he had been the victim of a conspiracy and of misfeasance in public office, the defendants submit. The new information (even if, for the sake of argument, it was accepted as not having, itself, been the product of fraud and deception on the part of the plaintiff) merely improves his prospects of success in prosecuting those actions, had they not been statute barred.

In C v. Mirror Group Newspapers [1997] 1 WLR 131 the Court of Appeal considered s. 32(1)(b) of the Limitation Act 1980 , which provided for the postponement of the limitation period where "any fact relevant to the plaintiff's right of action has been deliberately concealed from him by the defendant", a more favourable provision for a plaintiff than s. 27(b) of the Victorian Act. The Court of Appeal referred with approval to a decision of the Court of Appeal (Civil Division) (Rose, Russell and Neill JJ, in Johnson v Chief Constable of Surrey, The Times, 23 November 1992. The action in Johnson was a claim for damages for false imprisonment which had been brought after six years from the accrual of the cause of action. The plaintiff had contended that the police concealed material from him which demonstrated that they did not have reasonable grounds to suspect the relevant offence had been committed at the time of his arrest. In that case Rose LJ stated:

"For my part I accept the submission that, in construing the section, there is no middle ground between facts and evidence . . . Facts which improve prospects of success are not, as it seems to me, facts relevant to the right of action . . . I accept that the construction proposed . . . is a narrow one, but unless it is correct it is difficult to see what purpose is served by the special provisions with regard to personal injury actions which are contained in section 33 of the Act."

In commenting on that passage Neill LJ in C v Mirror Group Newspapers held, at 137, that it was clear that Rose LJ "accepted what in this court has been described as the statement of claim test, that is, knowledge of the facts which should be pleaded in the statement of claim". In quoting from the decision of Johnson Neill LJ next referred to the statement of Russell LJ, in which his Lordship stated:

"In order to give relief to the plaintiff any new fact must be relevant to the plaintiff's `right of action' and is to be contrasted with the facts relevant, for example, to `the plaintiff's action' or `his case' or `his right to damages'. The right of action in this case was complete at the moment of arrest. No other ingredient was necessary to complete the right of action. Accordingly, whilst I acknowledge that new facts might make the plaintiff's case stronger or his right to damages more readily capable of proof they do not in my view bite upon the `right of action' itself. They do not affect the `right of action', which was already complete, and consequently in my judgement are not relevant to it."

In C v Mirror Group Newspapers the Court of Appeal also referred to a decision of the Court of Appeal (Civil Division) in Frisby v Theodore Goddard & Co, The Times, 7 March 1984 and quoted Sir John Donaldson MR, (with whom Rose LJ and Stephen Brown LJ agreed) as having stated that it was to be remembered that a right of action arose out of a basic set of essential facts. That right could be concealed by the hiding of one or more of those facts, but concealment of evidence was wholly different, and related to the proving of the case, rather than the existence of the right of action. The Master of the Rolls cited with approval a passage in the judgment of Lord Denning MR in Applegate v Moss [1971] 1 QB 406 where it was said that: "The section applies whenever the conduct of the defendant or his agent has been such as to hide from the plaintiff the existence of his right of action". The section with which Lord Denning was concerned was in identical terms to s. 27(b).

In Frisby the court noted as to the facts which were said by the plaintiff to have been suppressed by his solicitor, against whom he brought the proceedings:

"On those facts the plaintiff held, and knew at the time that he had, a good cause of right of action against the defendants as his solicitors. However his case was that it was impracticable to sue them at that time for it would have been his word against theirs."

Sir John Donaldson observed that the right of action for professional negligence arises out of a basic set of essential facts, being the solicitor/client relationship, the giving of negligent advice, and consequential damage. His Honour continued:

"A right of action may be concealed by hiding one or more of these essential facts from the potential plaintiff. But that did not occur and the plaintiff did not suggest that it did. His complaint is that certain evidence was concealed which, he says, would have supported his right of action. This is something wholly different. Having a right of action and knowing you have it is one thing. Being able to prove it is another. Bridging that gap, when all or an important part of the evidence is or may be in the hands of the defendants, is the function of discovery."

The defendants submit that relevant facts are those which must be proved to establish a cause or right of action in the absence of a defence. In C. v Mirror Group Newspapers Neill LJ, in referring to Johnson, held that the views expressed in Johnson were relevant to the terms of the 1980 Act as well as to the earlier Act. Neill LJ held at 138 "the relevant facts are those which the plaintiff has to prove to establish a prima facie case".

In C v Mirror Group Newspapers Neill LJ held at 138:

"In my judgement the decision in Johnson, which is of course binding upon this Court, must be applied to the relevant expression in section 32A as it applies to the expression in 32(1)(b). The relevant facts are those which plaintiff has to prove to establish a prima facie case. That being so, the fact alleged to have come known to the plaintiff only in August 1993, that drug smuggling had not been mentioned in court, is not a relevant fact within the meaning of s. 32A. As well as being bound by it, I respectfully agree with the decision in Johnson."

Misfeasance in public office is a tort which is completed upon damage being caused (see Farrington v Thompson, supra, at 293, per Smith J). Proof of damage is a necessary element of the cause of action (per Kaye and Beach JJ in Little v Law Institute, supra, at 270).

For conspiracy, the gist of the cause of action is damage suffered (per Kaye and Beach in Little, at 271).

To establish misfeasance in public office Smith J held in Farrington, at 293, that whilst malice was not essential to be proved it is necessary to prove that the public officer did an act which to his knowledge amounted to an abuse of his office and thereby caused damage to another person. That proposition was accepted by Kaye and Beach JJ in Little, at 270.

In Johnson v Chief Constable of Surrey the right of action was complete at the moment of arrest, the action being one for false imprisonment. It is submitted here, for the defendants, that the right of action by the plaintiff against Cook and the State of Victoria, if it arose at all, was completed, as to the offence of misfeasance in public office, upon damage being occasioned to the plaintiff, and that such damage occurred, and the cause of action was complete, upon the conviction and imprisonment of the plaintiff. Likewise, it is submitted that the offence of conspiracy was complete upon the occurrence of the same damage. It is said, therefore, that the only facts which have been discovered in 1998 are not facts which are necessary elements of either cause of action but amount to items of evidence which would assist the plaintiff's action against the third and fourthnamed defendants in proving either of those causes of action.

The question is not without its difficulty, but it seems to me that it is arguable that what the plaintiff learned in 1998, by virtue of Murdoch and his investigations, is that Cook had presented to the jury a photograph purporting to be that of a fingerprint obtained on the Cooey rifle when in fact the photograph was not a photograph of the Cooey rifle, at all, but of some other object on which the plaintiff's fingerprint, legitimately, was located. On one view, that is a discovery merely of evidence to supply an allegation of misfeasance of public office by Cook. On the other hand, the plaintiff argues that however great his suspicions were that Cook had given false evidence to the jury, it was only by virtue of Murdoch's evidence (and Cook's alleged role in misleading Murdoch) that the plaintiff established that Cook, and not someone else, had been responsible for the production of false evidence against him, by manufacturing a photograph purporting to be a photograph of the Cooey rifle, when it was not. That precise fact, if proved, would demonstrate that Cook was not merely an unwitting tool of some other person in presenting false evidence, but must have himself been involved in a deliberate action of concoction of a photograph.

That seems to me to be more than mere evidence, arguably, and to be capable of constituting an essential element of the offence of misfeasance in public office, namely, that Cook, as a public officer, had done an act which to his knowledge amounted to an abuse of his office. Likewise, in an action for the tort of conspiracy an essential element of the tort which must be pleaded is one or more overt acts done in furtherance of the agreement, and leading to the damage. In Lonhro Ltd v Shell Petroleum Co Ltd (No.2) [1982] AC 173 at 188-9 Lord Diplock, speaking for the court, held that the tort, unlike the crime, of conspiracy "consists not of agreement but of concerted action taken pursuant to agreement". This passage was cited with approval by Kaye and Beach JJ in Little v Law Institute at 271. Thus, it may be said that the evidence obtained from Murdoch arguably disclosed for the first time an overt act by Cook in producing and presenting to the jury a faked photograph which purported to be of a fingerprint on the barrel of the Cooey rifle.

The actions of Cook in his dealings with Murdoch arguably also disclosed, for the first time, that it was Cook, and not someone else, who was engaged in a conspiracy with others (in particular the firstnamed defendant) to present such evidence for the purpose of obtaining a conviction against the plaintiff. If, arguably, those facts had been suppressed by the fraud of Cook, as alleged, then they are facts relevant to the cause of action itself, and not merely items of evidence relevant to proof of the cause of action. The terms of s 27(b) refer to concealment by fraud of "the right of action". The legislation in New South Wales - s. 55 of the Limitation Act 1969 - which was discussed in Seymour v Seymour spoke of "a cause of action or the identity of a person against whom a cause of action lies". Notwithstanding the fact that the Victorian section does not distinctly refer to concealment of identify, in my view such concealment might well constitute concealment of "the right of action". The matter is plainly arguable.

In my view, although the matter is not free from doubt, by any means, it is certainly arguable that facts which were essential parts of the causes of action of conspiracy and misfeasance in public office had been suppressed by Cook and were only discovered in 1998 by the plaintiff, however much he suspected those facts earlier. That being so, the plaintiff, arguably, might be able to defeat the limitation defence by reference to s. 27(b).

The related question is whether the effect of s. 27(b) of the Limitation Act only operates where the facts are suppressed at the time of the accrual of the cause of action and not where concealment of those facts occurs at a time subsequent to the completion of the cause of action.

As to this second issue, it was submitted by counsel for the third and fourthnamed defendants that if there was suppression of facts that suppression only occurred in 1998, and, accordingly, the time limit having commenced to run upon the damage being suffered by the plaintiff, it expired six years from the date of the conviction and sentencing of the plaintiff and the limitation period had expired by the time any fraudulent concealment of facts took place. I was referred to some authority on this issue. Mr O'Bryan, counsel for the third and fourthnamed defendants, submitted that if time had begun to run then a supervening fraudulent concealment would not start time running once again: see Tito v Waddell (No.2) [1977] 1 Ch 106 at 245-246 per Megarry V-C. However, in Sheldon v Outhwaite Ltd [1996] 1 AC 102 the House of Lords took the view that fraudulent concealment which took place so as to hide facts from a plaintiff after time had commenced to run would in fact postpone the running of time. The House of Lords, however, was concerned with limitations provisions which had been amended after Tito v Waddell. The terms of the legislation with which Megarry V-C was concerned were those identical to s. 27(b) of the Victorian Limitation of Actions Act.

In Sheldon v Outhwaite, however, the court considered the significant policy issues which are also raised in the present case. It is particularly relevant to note that the allegation of conspiracy, as now pleaded, alleges a conspiracy which continued until 1997. The conspiracy was said to be one "to bring about the laying of the charges and otherwise to injure the plaintiff in his reputation and business". The particulars of the conspiracy identify forging of the photograph of the fingerprint of the plaintiff on the barrel of the rifle, withholding expurgatory evidence, falsifying evidence of the palm print on the plastic drum lid and giving false evidence at the trial with respect to the lid of the drum. Thus, all of the particulars relating to the conspiracy relate to the trial and events leading up to his conviction and imprisonment. The pleading of the conspiracy so as to identify its scope as continuing from 1985 to 1997 was first so framed in the most recent amended statement of claim. Prior to that the allegation had referred only to events in 1985 and leading up to the trial in 1987.

In Tito v Waddell s. 26 of the 1939 Limitation Act was in precisely the same terms as s. 27(b) of the Victorian Act. Megarry V-C held that if time had begun to run then a supervening fraudulent concealment would not stop time running, and then have time recommence, or start again, as from the date of disclosure of the relevant fraud.

The decision in Johnson was considered by the House of Lords in Sheldon v Outhwaite Ltd but the House of Lords was then concerned with 1980 legislation which, by s. 32(1) related to the situation where: "any fact relevant to the plaintiff's right of action has been deliberately concealed from him by the defendant". The court did not conclude that the decision of Megarry V-C on the legislation as it had earlier stood was wrong, but noted that it was obiter.

The court held in Sheldon v Outhwaite that under the new legislation the fact that a concealment occurred subsequent to time commencing to run would, in fact, stop time running, and time would commence to run, anew, from the time of discovery of the fraud. In his judgment, as one of the majority, Lord Nichols of Birkenhead drew this distinction at p.152, that "if a plaintiff is aware of all facts relevant to his right of action, there cannot be subsequent `concealment' of them from the plaintiff. He already knows the position. But if he does not, and the defendant takes steps deliberately aimed at keeping the plaintiff in the dark, there is as much need to prevent that defendant from gaining a limitation advantage as the defendant who conceals the position from the outset". Lord Nichols held, at 154, that "the purpose of s. 32(1)(b) is clear; a defendant is not to obtain an advantage from deliberately concealing a fact relevant to the plaintiff's right of action".

Whilst the terms of s. 32(1)(b) are different from those in the Victorian Act, in particular by virtue of the fact that they refer to, expressly, "any fact relevant to the plaintiff's right of action" it seems to me that the purpose of s. 32(1)(b) as stated by Lord Nichols nonetheless appropriately identifies the purpose of s. 27(b) of the Victorian Act.

I do not consider that this issue really arises in the present case. It could not be said, here, that the facts which have been arguably subsequently disclosed (which had hitherto been suppressed by the fraud of Cook - as alleged) amounted to what Megarry V-C was concerned with, namely, "a subsequent fraudulent concealment", occurring only after time had begun to run. If there was concealment as alleged then, in my view, it was concealment which was running for the whole of the time up to and after the trial and conviction of the plaintiff, and it continued until the exposure of Cook's own role, as alleged, in producing false photographs which had been tendered at the trial.

It is, of course, arguable that Cook's role was always known to the plaintiff, and that he merely learned some details about that role in 1998. The photograph to which Murdoch referred, i.e., of the cylindrical object, was, it seems, that which was tendered at his trial, so it might be said that investigations at the time of the trial, had they been conducted, were capable of having exposed the alleged falsification of that evidence. That, however, is not clear cut, and seems to me to be arguably not so.

Order 9.06(b) provides for the joinder of a party whose presence before the court is necessary to ensure that all questions in the proceeding are effectually and completely determined and adjudicated upon. Arguably, that is so in the case of the third and fourthnamed defendants, and where it is also arguable that a limitations defence will not succeed in such circumstances, then, in my view, it would be quite appropriate to allow joinder of a defendant.

Mr O'Bryan, counsel for the defendants, agreed that if the matter was arguable, and could not be determined against the plaintiff without investigation of the facts or law, then leave to join the defendants should be granted, the relevant principle being similar to that applied in Wardley Australia Ltd v Western Australia [1992] HCA 55; (1992) 175 CLR 514, at 533-534, and Leicester Wholesale Fruit Market Ltd v. Grundy [1990] 1 WLR 107.

In my opinion, the orders made by Master Evans have not been shown to have been wrong and in considering the matter de novo I reach the same conclusion as did the Master. Accordingly, the appeal against the decision of the Master will be dismissed.

Limitations of Actions Act 1958

At a glance

Court

Decision date

Before

Source

Judgment (84 paragraphs)

Parties

Legislation Cited (3)

Cases Cited (5)