Blissett v The State of New South Wales; Blissett v The State of New South Wales; Blissett v Fullagar; Blissett v The State of New South Wales; Blissett v The State of New South Wales; Blissett v The State of New South Wales; Blissett v The State of New South Wales

Defendants: First Defendant: Christopher Fullagar Second Defendant: The State of New South Wales Third Defendant: B Van Zuylen Fourth Defendant: DSC A Hardy Fifth Defendant: SC Cole

2022/00104858 Plaintiff: Mr Dione Trevor Blissett

Defendants: First Defendant: The State of New South Wales Second Defendant: Angela Hardy Third Defendant: Emma Cole

2022/00104924: Plaintiff: Mr Dione Trevor Blissett

Defendants: First Defendant: The State of New South Wales Second Defendant: DSC Hardy Third Defendant: SC Cole Fourth Defendant: SC Leach Fifth Defendant: Det Hughes Sixth Defendant: SC McAlister Seventh Defendant: Insp Maharaj

2022/00104992: Plaintiff: Mr Dione Trevor Blissett

Defendants: First Defendant: The State of New South Wales Second Defendant: Patrick Breaden Third Defendant: DSC A Hard Fourth Defendant: SC Cole

2022/00105039 Plaintiff: Mr Dione Trevor Blissett

Defendants: First Defendant: The State of New South Wales Second Defendant: Corrective Services (NSW) Representation: Counsel: Defendant: Mr R Coffey

Solicitor: Defendant: McCabe Curwood File Number(s): 2020/00044181 2020/00044429 2022/00104671 2022/00104858 2022/00104924 2022/00104992 2022/00105039

The background to these proceedings

1. The plaintiff, who represents himself in all these proceedings, commenced two sets of proceedings against the State of New South Wales ("SNSW") on 5 December 2019. The first claim related to the seizure of a removalist truck operated by a company of which the plaintiff is a director and is (as far as can be ascertained from the generalised pleading) a form of claim for trespass to property. The second is a claim for malicious prosecution arising out of charges laid against the plaintiff in the Local Court (2020/4429) for which he was acquitted. Somewhat confusingly, these claims also include references to detinue, negligence, "personal harm" and deceit.
2. These two proceedings ("the hearing claims") are set down for hearing for seven days commencing on 18 July 2022.
3. In 2022 the plaintiff commenced a further five sets of proceedings against individuals not named as defendants in the hearing claims referred to above, but who are police officers and/or other parties for whom SNSW also appears. These proceedings ("the five 2022 claims") are before the court as part of the case management of these proceedings, as the subject matter is identical.

The applications before the court

1. SNSW has filed Notices of Motion in each of the hearing claims seeking summary dismissal of all causes of action or, alternatively, security for costs.
2. The first Notice of Motion, filed on 17 June 2022, seeks orders dismissing both the hearing claims. The form of orders in 2020/00044429 is as follows: "1. In respect to proceedings 2020/00044429, the Court dismiss the proceedings pursuant to rule 13.4 of the Uniform Civil Procedure Rules 2005. 2. In the alternative to Order 1, that Amended Statement of Claim filed on 8 April 2020 be struck out pursuant to rule 14.28 of the Uniform Civil Procedure Rules 2005. 3. The plaintiff the defendant's costs."
3. An earlier Notice of Motion, filed on 31 May 2022, seeks the following orders: "1. The plaintiff is not given leave to appear remotely from New Zealand in the hearing before the District Court of New South Wales on 18 July 2022 pursuant to section 48 of the TransTasman Proceedings Act 2010 (Cth). 2. The plaintiff is not given leave to give evidence, examine a person giving evidence and make submissions relating to the giving of evidence from New Zealand in the hearing before the District Court of New South Wales on 18 July 2022 pursuant to section 50 of the Trans-Tasman Proceedings Act 2010 (Cth). 3. The plaintiff be ordered to provide security for the defendant's costs of an incidental to the proceedings pursuant to rule 42.21 of the Uniform Civil Procedure Rules 2005 (NSW). 4. The proceedings be stayed until such security is given pursuant to rule 42.21 of the Uniform Civil Procedure Rules 2005 (NSW). 5. That the plaintiff pay the defendant's costs of and incidental to this motion."
4. Judge Wilson SC made orders for the hearing of these motions today with the following additional notations which starkly illustrate some of the problems the court has had in terms of case management: "NOTATIONS: 1. tried to call Mr Blissett using phone number on Statement of Claim/ number provided on a number of occasions. When called from the polycom the system said that the number was not in service; 2. the court phone would not connect to an international number; 3. the links provided to both 16A and 16B did not work for Mr Blissett. Mr Blisset sent 3x screenshots which demonstrate that the system appears unavailable; 4. all emails about the issues connecting to the courtroom between my Associate and Mr Blissett were printed for the court file and scanned and sent to the defence; 5. at 2:00pm the matter was returned to and Mr Blissett made an appearance via AVL; 6. my preliminary view is that the amended Statement of Claim filed 8 April 2020 does not disclose an arguable cause of action. ORDERS: 1. leave granted for Mr Blissett to file Notice of Motion for Default Judgment in Court on the condition that the filing fee is paid within 7 days; 2. I give the Defendant leave to file a Notice of Motion and Affidavits in support to have these proceedings stuck out, no later than 4pm on 17 June 2022; 3. in the event the Plaintiff intends to rely on any evidence, he is to file and serve such evidence no later than 4pm on 21 June 2022; 4. the Defendant's Notice of Motion is returnable on 23 June 2022 at 9.30am; 5. Mr Blissett is required to appear at that time via AVL, if he does not, orders may be made in his absence; 6. Solicitor for Defendant to notify Plaintiff of orders made today."
5. In addition, there are also outstanding court-related case management issues arising from the plaintiff's failure to honour his undertaking to pay the filing fee for two default judgment applications, or to pay the hearing fee.
6. The plaintiff has also brought a Notice of Motion, which he sought to file in Court on 16 June 2022 before Judge Wilson SC. The text of each motion is as follows: "Judgment for the Plaintiff against the defendant for damages as referred to in the statement of claim to be assessed. The defendant pay the plaintiff's costs"
7. It is unknown what matters the plaintiff proposed to bring before the court today in relation to any of these motions because, when I telephoned him at the commencement of the AVL hearing, he said to me (after I identified myself and this court) that he did not want to speak to me, and hung up. He has not responded to messages I left on his phone or to emails from my associate providing dial-in details. He did, however, respond to a text message from counsel for SNSW, Mr Coffey, by sending him a text message to "fuck off -rat-" [sic].
8. Where a party refuses to attend court, or walks out of the courtroom, or (in an AVL court) hangs up, the court is entitled to proceed in their absence: Michail v Mount Druitt and Area Community Legal Centre Inc [2015] NSWCA 396. There must, however, be careful compliance by the court with its obligations under the Uniform Civil Procedure Rules 2005 (NSW)("UCPR") r 29.7 to protect the interests of the absent party. In addition, the court must not be too precipitate in the dismissal of claims which are poorly pleaded, particularly if the pleader is a litigant in person, as was noted in Marino v Bello [2022] NSWCA 73.I have borne all these precepts carefully in mind.
9. The repeated attempts made to contact the plaintiff are set out in the Transcript, and the text messages sent by Mr Coffey are marked as an Exhibit.
10. I particularly note that, as part of my communication with the plaintiff, I left a phone message repeating the words set out in Judge Wilson SC DCJ's associate's email to the plaintiff of 16 June 2022, namely: "Mr Blissett if you continue not to attend the listings his Honour will consider striking out the proceedings due to lack of attendance and want of prosecution under rule 13.6 UCPR."
11. The plaintiff's failure to participate meaningfully (and, at times such as today, at all) in case management has been a major impediment to the efficient case management of these proceedings. His conduct warrants the epithet of "reluctant gladiator", a description given by Young JA in Bi v Mourad [2010] NSWCA 17 to another litigant whose choice of Fabian tactics resulted in the dismissal of his claim. Such conduct adds to the burden of a court already impacted by the pandemic of the past two years. The plaintiff's rudeness and unpleasantness to his opponents and the court is also regrettable.
12. Nevertheless, mindful of the warnings of the Court of Appeal in Marino v Bello, I am conscious that the plaintiff should be given a last opportunity to get his house in order and to make his claim ready for hearing on 18 July 2022. It would be a very serious step to take to strike out a cause of action on the first occasion when a challenge is brought, and where the hearing of the claim is only three weeks away. While one of the claims brought by the plaintiff (the trespass to goods claim) is clearly hopeless, the plaintiff should be given an opportunity to answer requests for particulars in relation to the remainder, and I have set out a timetable to enable the plaintiff to do so.
13. I have also granted the plaintiff a short extension to enable him to comply with his undertaking to the court to pay the filing fees for his applications for default judgment, and also to order him to pay the hearing fee. As he has not prosecuted these applications before me today, I have dismissed both Notices of Motion. That does not mean, however, that he is no longer obliged to pay the hearing fee.
14. Additionally, I have required the plaintiff to comply with UCPR rr 7.2 and 7.3 in relation to his representation of the company.

The circumstances leading to this claim

1. In March 2016, the plaintiff set up a company named Rise Transport and Logistics Pty Ltd, for which he was the sole director, shareholder and company officer. The company took out finance for the purchase of a truck and it was a condition of the finance agreement that the plaintiff's company would not allow access to the truck by persons not employed in the business.
2. Members of the NSW Police service, acting on information in the form of complaints from members of the public who had entered into contracts for transport of goods, seized the truck and its contents on 4 March 2018. Police described the manner in which the truck had been located as being suggestive that the truck was abandoned and noted that the registration had been cancelled on 22 October 2017. Police attended the plaintiff's home that day (which was across the road from the truck's location) and, after no one answered, attended the following day to execute a search warrant, seizing a number of items. The plaintiff was stopped in his car in circumstances unrelated to these events on 7 March 2018. He participated in a recorded interview and was arrested and entered into police custody. A further four charges were laid on 31 May 2018. The truck was released to the finance company by police.
3. The criminal proceedings against the plaintiff were heard in the Local Court on various dates between 29 January 2019 and 24 September 2019, when the plaintiff was found guilty of five of the seven counts of larceny as a bailee and sentenced to imprisonment. An appeal was dismissed.
4. The plaintiff currently resides in New Zealand, having been deported after serving his sentence of imprisonment.
5. The following issues have been the subject of consideration: 1. The plaintiff's failure to comply with UCPR r 7.2. 2. The hopelessness of the trespass to property/goods/chattels, where the property in question clearly arises only in relation to the plaintiff's former company and not for him personally. 3. The absence of particulars for the malicious prosecution claim and, in particular, the failure to particularise absence of reasonable and probable cause and malice. 4. The failure to provide a schedule of liquidated damages for any of the claims and in particular to serve the appropriate particulars for personal injury. 5. Failure to comply with undertakings to pay filing fees. 6. Inadequate particulars of the negligence, deceit and detinue claims. 7. The plaintiff's entitlement to give evidence at the trial and otherwise conduct the proceedings by AVL. 8. The plaintiff's application for default judgment against the defendant. 9. The future conduct of the five 2022 claims. 10. The defendant's application for security for costs.
6. For ease of convenience, I set out my reasons for making each of the relevant orders, in numerical orders.

Order 1: UCPR r 7.2

1. UCPR r 7.2 provides: "7.2 Affid avit as to authority to commence and carry on proceedings in Supreme Court or District Court … (2) The affidavit made by the director of a company within the meaning of the Corporations Act 2001 of the Commonwealth must contain - (a) a statement to the effect that - (i) the director is a director of the company, and (ii) the director has been authorised by a resolution of the directors duly passed at a meeting of directors held on a specified date (which must not be earlier than 21 days before the date of the affidavit) to commence and carry on the proceedings, as the case requires, and (iii) the authority has not been revoked, and (iv) the director is aware that he or she may be liable to pay some or all of the costs of the proceedings, or (b) a statement to the effect that - (i) the director is the managing or governing director of the company and has authority to exercise the powers of the directors, and (ii) the director is aware that he or she may be liable to pay some or all of the costs of the proceedings. (3) The affidavit made by the authorised officer of a corporation (other than a company within the meaning of the Corporations Act 2001 of the Commonwealth) must contain a statement to the effect that - (a) the officer is the holder of a specified office within the corporation, and (b) the officer has been authorised by the corporation to commence and carry on the proceedings, and (c) the authority has not been revoked, and (d) the officer is aware that he or she may be liable to pay some or all of the costs of the proceedings."
2. As Mr Coffey sets out in his submissions, a company can only conduct proceedings by a director in such circumstances. The requirements for appearance in this Court is that in any case of corporate representation, an affidavit fulfilling the requirements of these provisions be filed. I have accordingly directed the plaintiff to do so by Friday 1 July 2022.
3. It will be a matter for the Trial Judge to determine what further orders, if any, need to be made to regularise the company's position.

Order 2: the claim for trespass to property/goods/chattels

1. As Mr Coffey has set out in his submissions at paragraphs 107 - 117, the only person who can sue for trespass is the person in actual possession of the chattel at the time of the interference: Penfolds Wines Pty Ltd v Elliott (1946) 74 CLR 204.
2. The Pantech truck seized by police was the property of a company that was deregistered on 8 February 2020: see Exhibit AK-9 to the 17 June 2022 Kmetyk affidavit. The lease or hire arrangement was entered into between another company and the now deregistered company (Rise Transport and Logistics Pty Ltd) and not to the plaintiff in his personal capacity.
3. This factor alone is sufficient for the claim to be struck out.
4. Even if the plaintiff were to file an affidavit pursuant to UCPR r 7.2, if the company has been deregistered, it would need to be restored to the Register by an application to the Supreme Court of New South Wales.
5. The plaintiff's claim for trespass to property/goods/chattels (insofar as any such claim can be gleaned from the opaque wording of paragraphs 5 - 10 of the amended statement of claim) must accordingly be struck out.

Order 3: malicious prosecution claim

1. The elements of a claim for malicious prosecution are set out in Beckett v New South Wales (2013) 248 CLR 432 at [4] and are: 1. The prosecution was initiated by the defendant. 2. The prosecution terminated favourably for the plaintiff. 3. The defendant acted with malice in bringing and/or maintaining the prosecution. 4. The prosecution was brought and/or maintained without reasonable or probable cause.
2. It is trite law that particulars of each of these elements must be properly particularised. The plaintiff's failure to provide particulars of malice and absence of reasonable or probable cause must be rectified immediately. In view of the central nature of such particulars, it is appropriate that a self-executing order is made, as failure to provide these particulars means that SNSW cannot know the case it is to meet.
3. For the benefit of the plaintiff, a self-executing order is one which, if not complied with, may result in the court determining that the evidence concerning which there was a default cannot be led at trial. While this often relates to the striking out of part only of a claim (as occurred in Douglas v John Fairfax & Sons Ltd [1983] 3 NSWLR 126, where the failure in question was a failure to provide particulars of a special damages claim), it can also lead to the loss of the whole of the proceedings (Armin v Harbour Radio Pty Ltd [2018] NSWDC 321). In view of the essential nature of these particulars, the plaintiff must accept that, if these are not provided by the due date, an application to strike out the whole of the malicious prosecution claim will be brought.

Order 4: Particulars of liquidated damages

1. In his pleadings, the plaintiff makes references to claims of liquidated as well as unliquidated damages, presumably for loss of particular possessions or some other form of definable financial loss. There is no list provided of what these items are. SNSW is entitled to know the case it has to meet and accordingly the plaintiff must provide a schedule setting out the items, their value and any relevant documentation (such as valuations).
2. Once again, this order is self-executing in nature, and the plaintiff is warned that, if he does not provide such a schedule, not only will he not be permitted to lead such evidence at the trial, but SNSW will be entitled to seek summary dismissal of all claims for which any such liquidated claim is made (which appears to be all of the claims).
3. There is no need to provide such particulars for the trespass to property/goods/chattels as this claim has already been struck out (see above). There must, however, be appropriate particulars provided for the personal injury claim, as I have noted at paragraph 41 below.

Order 5: Undertaking

1. The plaintiff gave an undertaking to Judge Wilson SC DCJ with which he has not complied, namely to pay filing fees for the applications for default judgment filed in court on 16 June 2022. I have extended time for compliance to 5 pm on Friday 1 July 2022 and added the hearing fee of $758 which I notice is also outstanding.
2. It is no answer for the plaintiff to say that these applications were dismissed. The filing fee must still be paid.

Order 6: Negligence, "personal harm", deceit and detinue claims

1. These claims are very poorly pleaded. SNSW proposes to seek further and better particulars and, if the answers to this request does not result in clarity, to bring an application for summary dismissal on 13 July 2022 when these proceedings return to the List Judge for further orders.
2. In particular, if the plaintiff is bringing a personal injury claim, he must provide UCPR r 15.2 particulars which include particulars of injury and disabilities, past and future out of pocket expenses, past and future economic loss and details of medical expenses. It is, however, too late for him to serve any medical reports.

Order 7: Conduct of the hearing

1. Whether or not AVL should be permitted is a matter which should be determined after the precise parameters of the plaintiff's claims are clear. I have accordingly deferred that question to the date of the trial. However, if the List Judge strikes out some or all of the remaining claims on 13 July 2022, that will have a significant impact on the manner of conduct of the trial (including whether there will be a trial at all).

Order 8: The plaintiff's application for default judgment

1. According to the plaintiff's affidavit, the defendant (SNSW) has not paid any money to him, and this entitles him to default judgment. He additionally points out that the defence has not been verified.
2. Defences to claims for malicious prosecution, trespass to goods and defamation (Daniels v State of New South Wales (No 2) [2014] NSWSC 1934), being intentional torts, are commonly not verified. For the reasons explained by McCallum J in Daniels v State of New South Wales (No 2), I do not consider verification necessary. Even if it were, such a complaint would not be sufficient to warrant the entry of judgment against a defendant.
3. Accordingly, the plaintiff's applications for default judgment are dismissed. Costs have been reserved.

Order 9: The five 2022 proceedings

1. These proceedings are identical in content to the two proceedings listed for hearing in July 2022. Only the names of the defendants are different.
2. SNSW proposes to bring an application for these claims to be summarily dismissed as an abuse of process. As no prior notification of this step has been given to the plaintiff, I have listed this application before the List Judge on 13 July 2022.

An order sought by the defendant: Security for costs

1. Applications for security for costs should be brought at the commencement of proceedings, not three weeks before the trial. While delay is not necessarily fatal (Li v State of New South Wales [2013] NSWCA 165 at [37] - [42]), the application is brought so close to the trial that any timetable for the ordering of payment would be frustrated.
2. I understand the difficulties lying in the path of SNSW in terms of conducting these proceedings, but the application is simply made too late. The application is dismissed (again, with costs reserved).

Other case management issues

1. I have set out, in orders 10 - 14 below, case management orders for the conduct of the balance of this application when these claims come before the List Judge on 13 July 2022.
2. I have taken every opportunity available to assist the plaintiff to prepare his case for hearing. I have endeavoured to understand his case and to help him put his best foot forward in terms of presentation of evidence. However, the court's patience is not infinite, and the plaintiff is warned that if he does not attend, orders are very likely to be made in his absence, and if he does not comply with the orders, the result is very likely to be the dismissal of part or all of the remainder of his claim.

Order: 1. The plaintiff is to comply with UCPR 7.2 by providing an affidavit and instrument evidencing his authority to enable the plaintiff to commence (retrospectively) and carry on proceedings on behalf of the company, such authority to be provided by Friday 1 July 2022. 2. Note: it will be a matter for the Trial Judge to determine what additional orders will be necessary in relation to joinder of the company as a result. 3. Strike out the claims in both 2020/44181 and 2020/44429 proceedings for trespass to property/goods/chattels as set out in paragraphs 5-10 of the amended statement of claim in each proceeding by reason of the claim arising only for the plaintiff's former company, in circumstances in which the plaintiff is not entitled to bring the claim in his own name. 4. As to the claim for malicious prosecution in proceedings 2020/44429, the plaintiff is to provide the following particulars by 5pm Friday 1 July 2022: 1. the identity of the prosecutor who initiated and/or maintained the criminal proceedings (albeit there is a reference to Detective Hardy and charging the plaintiff); 2. whether or not it is asserted that Ms Edwards is alleged to be prosecutor in any form; 3. particulars of the absence of reasonable and probable cause; 4. plead or particular the element of malice; 5. the correlation or basis for the liquidated damages; 1. Such order to be a self-executing order, in that if there is no compliance by 5pm Friday 1 July 2022, the plaintiff will not be entitled to lead such evidence at the trial and the defendant will be entitled to seek summary dismissal of the Claim either at trial or on 13 July 2022. 2. The plaintiff is to provide 1. UCPR r 15.12 particulars of personal injury re the "personal harm" claim; and 2. a schedule setting out precise particulars of each item in the claim for liquidated damages made in relation to each separate claim in these proceedings (apart from the claim for trespass to property/goods/chattels, which has been struck out) 1. by 5pm Friday 1 July 2022, such order to be a self-executing order with the same consequences as are set out in the previous order in the event of non-compliance. 2. Extend time for the plaintiff to comply with his undertaking to Judge Wilson given on 16 June 2022 to pay the filing fee of the two motions for default judgment to 5pm Friday 1 July 2022, and require the plaintiff to pay the hearing fee of $758 at the same date and time. 3. The negligence, "personal harm", deceit and detinue claims will go to Trial Judge for determination in their current form, subject to the plaintiff answering a request for particulars (which will be sent to them no later than 5pm Friday 24 June 2022) by Monday 11 July 2022, noting that if such particulars are not answered by that date the defendant may bring an application for one or all of causes of action to be struck out when the matter is listed before the Court on 17 July 2022. 4. The plaintiff's entitlement to give evidence, examine a person giving evidence and make submissions relating to the giving of evidence from New Zealand in the hearing before the District Court of New South Wales on 18 July 2022 pursuant to section 50 of the Trans-Tasman Proceedings Act 2010 (Cth) is stood over before the List Judge on Wednesday 13 July 2022. 5. Plaintiff's Notices of Motion for default judgment filed in Court on 16 June 2022 dismissed. 6. As to the following proceedings: 1. 2022/00104671; 2. 2022/00104858; 3. 2022/00104924; 4. 2022/00104992; 5. 2022/00105039; 1. The plaintiff is to show cause as to why each of these 5 actions shall not be struck out/stayed as an abuse of process on the basis that these actions each reflect a claim for the same subject matter as set out in proceedings 2020/44181 and 2020/44429, such issue to be determined by the Trial Judge in these two proceedings which are set down for hearing on Monday 18 July 2022. 2. Further to the order (9), all submissions and evidence to be relied upon in relation to any such application by 5pm Friday 1 July 2022, and the defendant is to file any submissions and evidence in reply by Monday 11 July 2022 at 5pm. 3. The defendant's application for security for costs is refused. 4. Stand the matter for further directions before the List Judge on Wednesday 13 July 2022 to monitor compliance, on which date defendant may bring any application for summary dismissal of the malicious prosecution claim if there has been no compliance with the self-executing orders set out above. 5. Reserve the issue of costs. 6. The plaintiff may appear by Video link or Telephone on Wednesday 13 July 2022 before the List Judge and is invited to inform the Court the best telephone number on which to contact him for these purposes.

Amendments 24 June 2022 - 22(i) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 24 June 2022