Trkulja v State of Victoria [2001] VSC 63

"On or about 9 July 1986 the defendants maliciously and without probable cause accused the plaintiff of theft or obtaining property by deception in relation to the work carried out ... and caused an information or informations in respect of charges of theft or obtaining property by deception to be issued against the plaintiff."

13. I accept that that is all the defendants have heard in respect of the malicious prosecution charge and I do so because an unserved statement of claim dated 22 July 1993 was prepared for and on behalf of the plaintiff by experienced counsel and that writ, although it lies in the registry, does not contain any claim for malicious prosecution.

16. In support of an application under order 14, rule 3, to add or substitute a new cause of action, the plaintiff himself swore an affidavit of 7 July 1993. That affidavit sought to raise a claim in negligence against the State of Victoria and one of its building inspectors, Mr Pattison. In that affidavit, Mr Trkulja swore as follows:

"The advice that I was given was that I did not have a cause of action which should probably be brought by way of a claim for malicious prosecution. I had accepted that advice."

Accordingly, I have the unequivocal and plain statement by the plaintiff himself that he did not wish to pursue the claim for malicious prosecution. And the rest of the affidavit goes to support the substitution and deletion of the claim for malicious prosecution by inserting the claim in negligence.

21. From that time forward the matter has proceeded as a negligence action. And so much is manifest by the amended statement of claim, amended pursuant to order 36 and dated 30 September 1993. For the last eight years in which this claim has been extensively litigated by way of interlocutory process, it has proceeded on the basis of negligence and negligence alone. I now consider that it would be a manifest injustice to the defendants to require them on the day of trial to meet an entirely fresh cause of action and one which the plaintiff himself has specifically disavowed. The claim of malicious prosecution is a serious one indeed, because it is the equivalent of claiming that a person has been dishonest, but more so, maliciously, one might say, almost evilly dishonest. That is the substance of the allegation which is raised against the defendant, Mr Pattison. It would require very clear particularisation of such a claim and Mr Pattison would be entitled to the time and consideration necessary to meet it. I consider that some 16 years after the alleged events, to face unexpectedly and as a novel matter such as claim in this court would be manifestly and grossly unfair to Mr Pattison.

24. Similarly, I consider it would be manifestly unfair to the State of Victoria to have it meet a cause of action in which it could have comfortably concluded, had been abandoned, or extinguished. Therefore, despite the leniency and consideration which I must extend to a plaintiff in person, I consider that my discretion would miscarry if I were to require the defendants to now prepare an entirely new defence to what would be a novel and difficult cause of action. Accordingly, I shall not grant the application of the plaintiff to include a claim for malicious prosecution. The matter will proceed as pleaded as a negligence action.