Fregnan v Stanizzo

Court of Appeal (NSW)|2016-08-29|Before: Beazley P, Macfarlan JA, Leeming JA, Lawyers J

Solicitors: Self-represented (Appellant) Justice Lawyers (Respondent) File Number(s): 2016/99299 Decision under appeal Court or tribunal: District Court Jurisdiction: Civil Date of Decision: 11 December 2015 Before: Olsson DCJ File Number(s): 2012/129649

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Judgment

BEAZLEY P: I have had the advantage of reading in draft the reasons of Macfarlan JA. I agree with his reasons and with the orders proposed.
MACFARLAN JA: This is an application for leave to appeal (and, if leave is granted, an appeal) against a decision of Olsson DCJ dated 3 December 2015 dismissing District Court proceedings brought by the applicant, Ms Karina Fregnan, against the respondent, Mr Vincent Stanizzo.

The proceedings at first instance

Ms Fregnan commenced the proceedings on 24 April 2012. Her Statement of Claim alleged that, whilst Mr Stanizzo was retained to act as her solicitor on the sale of a property in Wollongong, he sexually assaulted her on two occasions and, on the second, also falsely imprisoned her. In addition to these central allegations, the Statement of Claim referred, by way of background and context, to a number of other occasions upon which Ms Fregnan attended Mr Stanizzo's office in connection with his solicitor's retainer. It alleged that Ms Fregnan suffered humiliation and physical injuries as well as psychological and emotional damage as a result of the alleged assaults.
The papers before this Court do not reveal any detail of what occurred in the proceedings between their commencement and May 2015. After that period there were numerous communications between the solicitors for the parties and court appearances, principally concerned with discovery and particulars.
These dealings culminated in Mr Stanizzo filing a Notice of Motion on 19 October 2015 seeking an order for the supply of particulars requested in his solicitors' letters of 26 May, 10, 21 and 29 September and 12 October 2015 and, failing their provision, dismissal of the proceedings.
The Motion came before Olsson DCJ on 20 November 2015. By her judgment of that date, and her subsequent judgment of 3 December 2015, her Honour disposed of a number of issues between the parties which are not of relevance to the application before this Court. First, her Honour noted that Ms Fregnan had "finally" provided a verified list of documents. Secondly, her Honour noted that Ms Fregnan had served an Amended Statement of Particulars concerning damages pursuant to the Uniform Civil Procedure Rules 2005 (NSW) (UCPR), r 15.12 without leave. Her Honour directed that if Ms Fregnan wished to rely upon the Statement, leave for her to do so was to be sought by Notice of Motion returnable on 7 December 2015. No such Notice of Motion was filed. A similar direction in respect of an Amended Statement of Claim served by Ms Fregnan was made by her Honour. Again, no relevant Notice of Motion was filed.
So far as liability particulars were concerned, this being the matter of present relevance, her Honour referred to a letter from Mr Stanizzo's solicitors dated 10 September 2015 requesting particulars in addition to other correspondence preceding that letter. Her Honour said that she was satisfied that the letter constituted an appropriate request for particulars and rejected arguments to the contrary, including that the requests made in the letter were effectively interrogatories. Having obtained the concession of Mr Stanizzo's counsel that the letter of 10 September 2015 sufficiently incorporated earlier unanswered requests, her Honour directed Ms Fregnan to supply the particulars sought in that letter by 3 December 2015. Her Honour observed that in this context she was "prepared to give the plaintiff one last chance to get her case in order".
On 2 December 2015 Ms Fregnan replied to the letter of 10 September but her Honour found, by her judgment of 3 December which followed a hearing on that date, that the reply was inadequate. In consequence, her Honour dismissed Ms Fregan's proceedings for non-compliance with the direction that she supply the particulars sought in it.
On Ms Fregnan's application for leave to appeal to this Court against the dismissal of her proceedings, the issues are whether the requests for particulars made in the letter of 10 September 2015 were proper requests and, to the extent that they were, whether they were properly answered.
Before dealing with these issues, I make the following observations on the purpose and function of particulars so far as those topics are relevant to this case.

The Purpose and Function of Particulars

A party's obligation to provide particulars of a pleading is stated in UCPR, r 15.1(1) as follows: "15.1 Pleadings must give all necessary particulars (1) Subject to this Part, a pleading must give such particulars of any claim, defence or other matter pleaded by the party as are necessary to enable the opposite party to identify the case that the pleading requires him or her to meet."
This provision is consistent with the High Court's description in Dare v Pulham (1982) 148 CLR 658; [1982] HCA 70 of the function of pleadings and particulars (at 664): "Pleadings and particulars have a number of functions: they furnish a statement of the case sufficiently clear to allow the other party a fair opportunity to meet it; they define the issues for decision in the litigation and thereby enable the relevance and admissibility of evidence to be determined at the trial; and they give a defendant an understanding of a plaintiff's claim in aid of the defendant's right to make a payment into court." [Citations omitted.]
To similar effect were the following observations of Hunt J in Sims v Wran [1984] 1 NSWLR 317 at 321: "The fundamental principle in relation to particulars in defamation, as in any other case, is that a party must be made aware of the nature of the case he is called upon to meet. The object of particulars is to save expense in preparing to meet a case which may never be put and to make the party's case plain so that each side may know what are the issues of fact to be investigated at the hearing. It is not a question of whether one party has adequate knowledge of the actual facts; it is a question of whether he has adequate knowledge of what the other party alleges are the facts, for that is the case which he must meet." [Citations omitted.]
Since the enactment of the Civil Procedure Act 2005 (NSW), it has been necessary when applying these principles to have in mind the overriding purpose of the Act and UCPR "to facilitate the just, quick and cheap resolution of the real issues in the proceedings" (s 56(1)) and that in making procedural orders regard is to be had, inter alia, to "the timely disposal of the proceedings, and all other proceedings in the court, at a cost affordable by the respective parties" (s 57(1)(d)).
In light of these considerations, it is not appropriate for a court to order a plaintiff to provide detailed particulars of allegations that are plainly made merely to provide background or context to the central allegations in a statement of claim. Furthermore, whether the allegations are central or not, a high degree of specificity in allegations is not necessarily warranted. The extent to which it is required in any particular case is to be determined by the relevant legal practitioners and the court by reference to the circumstances of the case and having regard to the real issues between the parties. The "just, quick and cheap resolution of the real issues in the proceedings" is not advanced by permitting defendants to seek unnecessarily detailed particulars.
A number of the requests contained in the letter of 10 September 2015, the subject of the direction in the present case, failed to conform with these principles. I proceed now to consider those requests that were the subject of argument in this Court.

Questions 1, 2 and 3

Prior to alleging that on 19 September 2008 and 25 May 2009 Mr Stanizzo sexually assaulted Ms Fregnan, the Statement of Claim pleaded: "5. The Plaintiff first attended the office of V.F Stanizzo Solicitor and Barrister, the legal practice operated by the Defendant, located at 62 King Street, WARRAWONG in or about January 2008 for the purpose of obtaining legal advice and to discuss the Plaintiff's financial circumstances. Particulars a) Sale of the property at 51 Auburn Street WOLLONGONG NSW ('Property'). 6. In the following months, the Plaintiff attended the Defendant's office to sign various documents and to discuss legal matters in relation to the Property."
In respect of paragraph 5 the Defence stated: "Paragraph 5 is denied. The Plaintiff attended the office of the Defendant in or about January 2008 and instructed him to act for her as vendor on the proposed sale by her of the Property."
The Defence admitted paragraph 6.
The 10 September 2015 letter sought the following particulars in relation to these paragraphs: "1. On what date in or about January 2008 did the Plaintiff first attend the Defendant's office as alleged in paragraph 5 of the [Statement of Claim]? 2. (i) On what matter(s) did the Plaintiff seek legal advice from the Defendant as alleged in paragraph 5? (ii) What were the financial circumstances of the Plaintiff that it is alleged were discussed with the Defendant? 3. (i) Please specify each of the occasions on which the Plaintiff attended the Defendant's office between January 2008 and 19 September 2008 as alleged in paragraph 6. (ii) Please provide in respect of each such occasion: (a) Date, time and duration of attendance; (b) Persons present; (c) The subject of the conversation; (d) The words spoken by each party to each conversation; (e) Each document that it is alleged the Plaintiff signed."
With the possible exception of the request to identify the date of the first attendance (which Ms Fregan's solicitor in fact identified as 8 January 2008 in his letter of 2 December 2015), these requests were inappropriate.
It was obvious from the Statement of Claim that the matter about which Ms Fregnan sought legal assistance was the sale of her property. The Defence admitted this and no further specification of it was required. The Defence implicitly denied that the assistance extended to Ms Fregnan's financial circumstances. Nevertheless there was no reason conveyed by the Statement of Claim, or suggested in argument, why the parties' different positions in relation to that matter had any relevance to the sexual assaults with which the proceedings were concerned. Even if it were relevant, there was no need for Ms Fregnan to do more than assert that the purpose of the meeting extended to a discussion of her financial circumstances. The nature of those circumstances and the discussion that occurred regarding them would (if found to be relevant) be a matter for evidence.
The allegation in paragraph 6 of the Statement of Claim was clearly prefatory. It was designed to provide the context in which the occasions upon which the alleged sexual assaults occurred. It was inappropriate to require Ms Fregnan to provide detailed particulars about these circumstances which were of no apparent relevance other than as background to the central allegations. This was particularly so, given the Defence admitted paragraph 6 of the Statement of Claim.
I add that by her solicitor's letter of 2 December 2015, Ms Fregnan furnished answers to questions 1, 2 and 3 which, with one minor exception, Mr Stanizzo accepted in argument before this Court were sufficient answers. Mr Stanizzo also conceded that of the 11 questions in the letter of 10 September 2015 questions 4, 5, 6 and 11 were also sufficiently answered.
That leaves questions 7, 8, 9 and 10 as requiring consideration.

Question 7

This question sought details of any complaint or other communication to a third party by Ms Fregnan regarding the alleged sexual assault on 19 September 2008. In her Statement of Claim Ms Fregnan did not plead the making of any such complaint, nor was it necessary for her to do so in order to plead a complete cause of action. Question 7 was therefore not a request for details of an allegation made by Ms Fregnan in the Statement of Claim. Rather, it concerned an evidentiary matter that might ultimately bear upon the acceptance or otherwise of her allegations of sexual assault. The request was in the nature of an interrogatory seeking admissions as to evidentiary matters and was therefore not a proper request for particulars of an allegation made by the plaintiff.

Question 8

This question related to the following paragraph of the Statement of Claim: "10. Following the incident [the first sexual assault] referred to in paragraph 8 and its subjoining paragraphs the Plaintiff maintained contact with the Defendant in relation to her legal affairs, by telephone and post."
Question 8 sought precise details of each communication. Although it is doubtful that further information about this, again, contextual allegation was necessary, the question was sufficiently answered.
Insofar as the question sought identification of the words spoken in any conversation that occurred, the question was not a request for particulars of any allegation made by Ms Fregnan. She went no further than alleging that "the plaintiff maintained contact with the defendant in relation to her legal affairs". It was no part of her case to allege that any particular conversation occurred in relation to those legal affairs during the communications the subject of the paragraph.

Question 9

This question related to the paragraph 11 of the Statement of Claim: "11. From about April 2009 the Plaintiff corresponded with Mr Badarne Mohammed Badarne ('Badarne'), the Defendant's employed solicitor with respect to the Plaintiff's Property and for the purposes of obtaining legal advice from Badarne in relation to a dispute the Plaintiff had with Technical and Further Education ('TAFE')."
This allegation simply completed the narrative contained in the Statement of Claim and was thus merely contextual to the central allegations of sexual assault, which were specifically made in other paragraphs of the Statement of Claim. I thus do not consider that Mr Stanizzo was entitled to any further particulars of the allegation.

Question 10

This question related to the allegations in paragraphs 12 to 17 of the Statement of Claim concerning the sexual assault that allegedly occurred in Mr Stanizzo's office on 25 May 2009. Those paragraphs allege that Mr Stanizzo "locked the door to his office" thereby preventing Ms Fregnan from leaving the office.
In addition to other information, question 10 asked Ms Fregnan to identify the door that was allegedly locked. To justify this request, Mr Stanizzo's counsel told this Court that there was more than one door to the office.
Although responding adequately to the other aspects of question 10 and providing a diagram said to identify the door, it was not in fact clear from Ms Fregnan's letter of 2 December 2015 where the door which was allegedly locked was located.
In this respect, it was an inadequate answer. Against this, however, the letter of 2 December 2015 appeared to be a bona fide attempt to supply the particulars requested in the letter of 10 September 2015. It should have been a simple matter for Mr Stanizzo to have Ms Fregnan identify, by reference to the diagram if thought convenient, where the relevant door was located. The plethora of unnecessary requests for particulars may well have obscured the need for a follow up in respect of this arguably relevant point.

Conclusion

In my view, the primary judge's conclusion (expressed in her judgment of 20 November 2015 and repeated in her judgment of 3 December 2015) that Mr Stanizzo's solicitors' letter of 10 September 2015 constituted a proper request for particulars was erroneous. As I have indicated, in many respects the requests made in the letter were unnecessary and inappropriate. To the limited extent that the letter contained proper requests for particulars, those requests were, with one qualification, properly answered. The deficiency (as regards the identification of the office door that was locked) was however a minor matter that should have been dealt with by a further request or court direction. It did not warrant dismissal of the proceedings.
Dismissal of the proceedings was sought only in the event that proper particulars were not supplied in response to the letter of 10 September 2015. As that letter, to the extent that it contained a proper request for particulars, was answered in a substantially satisfactory fashion, the Notice of Motion should have been dismissed.
In this Court, Mr Stanizzo sought to support by Notice of Contention the primary judge's order dismissing the proceedings on a different basis to that originally advanced on his behalf and ultimately relied upon by her Honour, namely, that the proceedings are vexatious, disclose no cause of action and are an abuse of process.
Mr Stanizzo should not be permitted to raise this argument for the first time on appeal, not least because it is possible that Ms Fregnan might have led further evidence if that had been the case that she was required to meet on the subject Notice of Motion.
Late in the hearing of the appeal, Mr Stanizzo sought to tender, by way of fresh evidence, the transcript of the hearing before Syme DCJ. The tender was refused, with reasons to be given later. The tender was in support of the Notice of Contention, and was properly rejected for the same reason that the Notice of Contention is rejected.
For these reasons, I propose the following orders: 1. Grant leave to appeal. 2. Direct that Ms Fregnan's Notice of Appeal be filed and served within seven days of the date of this judgment. 3. Allow the appeal. 4. Set aside the orders made in the District Court dismissing the proceedings and ordering the plaintiff to pay the defendant's costs of the proceedings, including the Notice of Motion of 19 October 2015, on an indemnity basis. 5. Dismiss Mr Stanizzo's Notice of Motion dated 19 October 2015 and order him to pay Ms Fregnan's costs of that Motion. 6. Order Mr Stanizzo to pay Ms Fregnan's costs of the proceedings in this Court. 7. Grant Mr Stanizzo a certificate under the Suitors' Fund Act 1951 (NSW), if qualified.
LEEMING JA: I agree with Macfarlan JA that this interlocutory appeal should be allowed, the orders made by the primary judge should be set aside and Mr Stanizzo's notice of motion dated 19 October 2015 should be dismissed with costs.
The impression gained from the (incomplete) materials made available in this Court is that far too much energy has been directed to discovery and particulars. I should not be taken to be implying that the fault lies entirely with Mr Stanizzo; indeed, from the procedural history recited by the primary judge, there has seemingly been a lengthy history of noncompliance by Ms Fregnan with the court's directions. But the present focus is the request for particulars.
It is to be recalled that this was an unusual case procedurally. First, in reversal of the usual order of things, by the time the dispute about particulars was argued, the pleadings had closed and discovery was complete. Secondly, by reason of the criminal prosecution (during the pendency of which the civil proceedings had been stayed), Mr Stanizzo had had the benefit of (a) Ms Fregnan's statements to investigating police officers, and (b) cross-examination of her (although the transcripts were not included in the appeal materials, I would infer, from the fact that it was only on the eighth day of the trial that the prosecution ended, that the cross-examination was extensive). Thirdly, this was and is at its core essentially a case where one party asserted and the other denied serious misconduct by one of them, unwitnessed by any independent third parties. The adequacy of the particulars provided by Ms Fregnan fell to be determined against that background.
For those reasons, as well as the reasons given by Macfarlan JA, with which I agree, many of Mr Stanizzo's requests for particulars were not proper requests, and to the extent that they were not adequately answered, there was no sound basis to dismiss the proceeding.
The primary judge identified three other matters of concern. The first was that her Honour said that some of the requests had not been answered at all, or the answers which had been given did not address the request. Ms Fregnan's response to the request for particulars contains a paragraphing error. Numbered paragraph 7 contains also the answer to request 8. Numbered paragraphs 8, 9 and 10 are to be read as answers to questions 9, 10 and 11. As much is obvious on a careful reading of the document, bearing in mind the facts that (i) the fifth sentence within paragraph 7 commences "In reply to paragraph 8"; (ii) the three subparagraphs which follow correspond with the three subparagraphs in question 8 and (iii) the seven subparagraphs within question 9 correspond to the seven subparagraphs provided in answer 10. Although conceded by Mr Stanizzo in this Court, that error was not pointed out to her Honour by either counsel appearing before her, and appears to have led to her conclusion that some of the requests had not been answered.
Secondly, her Honour referred to a statement of particulars of damages and injury which was filed late, without leave. However, that was not an issue on 3 December 2015, no motion having been served to amend the particulars, as counsel then appearing for Mr Stanizzo clarified at the time (transcript 3 December 2015, p 9). In this Court, counsel for Ms Fregnan confirmed that the proposed amendment was not pressed.
Thirdly, at the conclusion of her reasons, the primary judge said that "I am satisfied that there are strong grounds for concluding that these proceedings are vexatious and that they are an abuse of process of the Court". No separate reasons were given for that statement. Mr Stanizzo maintained that: "Her conclusion that there are strong grounds for concluding that these proceedings are vexatious is that a combination of the failure to supply the particulars that the motion seeks, even given the last chance to supply them, and the antecedent circumstances, amount to the vexatious conduct of the proceedings."
I would accept Mr Stanizzo's submission that her Honour was not determining a summary judgment application which had been brought, and that those concluding words were directed to the failure to supply particulars and the antecedent circumstances leading up to that failure. They do not provide a separate basis for dismissing the proceedings.
I agree with the orders proposed by Macfarlan JA.

Amendments 13 December 2016 - [44] - Hyphen added to cross-examination [45] - Ms replaced with Mr 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: 13 December 2016

Suitors' Fund Act 1951(NSW)

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