HIS HONOUR: These three matters have been listed for hearing together. There is a dispute among the parties about the order in which that should occur.
The first proceeding in time was commenced by Ms Fregnan. She sued Mr Stanizzo by statement of claim filed on 24 April 2012 claiming damages for assault. She alleges that Mr Stanizzo sexually and indecently assaulted her on a number of occasions in 2008 and 2009 when he was her solicitor. The matters underpinning these allegations in due course became the subject of criminal charges after Ms Fregnan reported them to the police on 8 October 2009. Some considerable time later, on 8 July 2013, Mr Stanizzo was indicted upon a series of charges including having sexual intercourse with Ms Fregnan without her consent. Mr Stanizzo was thereafter put upon his trial in the District Court of New South Wales, commencing on 24 June 2013. However, during the course of that trial, at which Ms Fregnan was the principal witness for the prosecution, it became apparent that the Crown case may have been deficient in some significant respects. (I note for clarity that that is a general description of what occurred and is not intended by me to be an expression of opinion concerning the truth or otherwise of the allegations made by Ms Fregnan in these proceedings). At all events, all charges became the subject of a nolle prosequi entered in Mr Stanizzo's favour on 2 August 2013. By reason of that last event, Mr Stanizzo filed a cross-claim on 16 October 2013 in Ms Fregnan's proceedings claiming damages against her for malicious prosecution.
Mr Stanizzo then commenced proceedings against Mr Badarne in 2014. The current pleadings are contained in his amended statement of claim filed on 28 August 2014. Mr Stanizzo alleges that Mr Badarne made a series of false allegations to the police as the result of which Mr Stanizzo was charged on indictment dated 29 April 2011 with four counts oF intimidation which the Crown alleged occurred between 14 November 2009 and 21 October 2010. It is an oversimplification to say that Mr Stanizzo alleges that the statements made by Mr Badarne were false and were given to the police in the context of supporting the allegations made against Mr Stanizzo by Ms Fregnan. Mr Stanizzo was arrested on 4 November 2010. His trial did not commence in the District Court of New South Wales and the charges of intimidation were later withdrawn and a nolle prosequi was entered on 17 February 2014. Mr Stanizzo alleges that by making the statements to the police that led to his arrest Mr Badarne instigated and was instrumental in the commencement and continuation of the prosecution and is thereby liable to him for damages as a prosecutor.
Finally, on 5 October 2016, Mr Stanizzo commenced proceedings against the State of New South Wales claiming damages for wrongful arrest and malicious prosecution arising out of his prosecution on both indictments and the subsequent entry of a nolle prosequi in each case. Mr Stanizzo alleges that the State is vicariously liable for the acts of the prosecutor, in particular former Detective Senior Constable Jacob Murdock.
It will be seen that the prosecution of Mr Stanizzo on what was originally eleven charges contained in the two indictments was based on facts that are both common and central to the two proceedings commenced by him, as well as his cross-claim in the proceedings commenced by Ms Fregnan. Her claims similarly arise out of the physical acts she alleges occurred, and which in effect constitute the facts at the heart of the seven charges on the indictment charging Mr Stanizzo with the sexual assault of Ms Fregnan. As presently understood by me, neither the State nor Mr Badarne is directly concerned with the allegations made by Ms Fregnan against Mr Stanizzo in her claim against him. Put another way, Ms Fregnan's claims against Mr Stanizzo are not inevitably coextensive with the fate of Mr Stanizzo's allegations against either Mr Badarne or the State.
Mr Stanizzo submits that Ms Fregnan should commence. He maintains that her proceedings were filed first and that that should determine the order of events without more. However, in addition, Mr Stanizzo maintained that he would suffer prejudice if any other course were to be followed. That is because he would be forced to establish that Ms Fregnan's allegations were false, in aid of the proceedings in which he is a plaintiff or a cross-claimant, and that Ms Fregnan would unfairly be able to accommodate her claim against him in the light of what transpired in those proceedings. Moreover, Mr Stanizzo maintained that it would be unrealistic and unmanageable, as well as procedurally irregular, if he were required to prosecute his cross-claim against a plaintiff whose case had not at that time been heard.
Ms Fregnan, perhaps somewhat unusually, supports the view adopted by Mr Badarne and the State, that Mr Stanizzo should be required to commence in all matters in which he is either a plaintiff or its equivalent. Apart from formally adopting that approach, Ms Fregnan did not offer any principled assessment or argument in aid of why that should occur. In taking that position, Ms Fregnan would appear to disavow any advantage that she may have derived from going first and in that sense utilising the procedural opportunity to frame the debate.
Mr Badarne and the State contend that Mr Stanizzo should be required to commence. These parties maintain that they would be significantly disadvantaged if any other approach were taken. Mr Badarne in particular maintained that he would be placed, by analogy, in the position of an insured seeking indemnity under a policy of insurance in which the insurer alleges fraud and where the insured was required to disprove it. To the extent that I follow that analogy for the purposes of these cases, Mr Badarne seems to be concerned that requiring Ms Fregnan to commence will somehow reverse the onus of proof in his case. The State takes a similar approach.
Section 62 of the Civil Procedure Act 2005 provides relevantly as follows:
"62 Directions as to conduct of hearing
(1) The court may, by order, give directions as to the conduct of any hearing, including directions as to the order in which evidence is to be given and addresses made.
(2) The court may, by order, give directions as to the order in which questions of fact are to be tried.
…
(5) In deciding whether to make a direction under this section, the court may have regard to the following matters in addition to any other matters that the court considers relevant:
(a) the subject-matter, and the complexity or simplicity, of the case,
(b) the number of witnesses to be called,
(c) the volume and character of the evidence to be led,
(d) the need to place a reasonable limit on the time allowed for any hearing,
(e) the efficient administration of the court lists,
(f) the interests of parties to other proceedings before the court,
(g) the costs that are likely to be incurred by the parties compared with the quantum of the subject-matter in dispute,
(h) the court's estimate of the length of the hearing."
UCPR 28.5 is in these terms:
"28.5 Consolidation etc of proceedings
If several proceedings are pending in the court and it appears to the court:
(a) that they involve a common question, or
(b) that the rights to relief claimed in them are in respect of, or arise out of, the same transaction or series of transactions, or
(c) that for some other reason it is desirable to make an order under this rule,
the court may order those proceedings to be consolidated, or to be tried at the same time or one immediately after another, or may order any of them to be stayed until after the determination of any other of them."
I am currently unaware whether or not specific orders or directions under either of these provisions have yet been sought or made.
To date I have been provided with a court book extending to 10 volumes of material approaching 2,500 pages. I anticipate that the factual issues in all matters will be complex. One of the reasons for this is that the events giving rise to the proceedings are now more than a decade old and concern matters about which there is considerable disagreement. There is also the question of the extent to which the evidence taken in any one proceeding on a factual issue common to another proceeding should be evidence for all purposes in other proceedings. It is clear that significant issues of admissibility of evidence as between or among the sets of proceedings will require close attention as the trials proceed.
With great respect to those who have argued to the contrary, I presently foresee no good reason why the matters should not be heard in the order in which they were filed. This may cause what appears to be a procedural disadvantage to Ms Fregnan, inasmuch as she will be giving evidence in her proceedings and potentially exposed to cross-examination in Mr Stanizzo's cross-claim, in circumstances where she might ordinarily be entitled to consider whether or not she will give any evidence in defence of that cross-claim. However, it seems to me that there are only limited ways to avoid that dilemma. Ms Fregnan will presumably assert the truth of the allegation she makes that she was sexually assaulted by Mr Stanizzo. A finding about the truth or otherwise of that allegation may not be determinative of Mr Stanizzo's cross-claim but it will obviously arise as a significant issue in both Ms Fregnan's claim and Mr Stanizzo's cross-claim.
One complicating factor, among what I anticipate may be many complicating factors, will be deciding what role any findings concerning the truth or otherwise of Ms Fregnan's allegations in her case should have in Mr Stanizzo's cross-claim or his claims against Mr Badarne and the State. Mr Stanizzo claims, among other things and in general terms, that Ms Fregnan lied to the police about what she alleges he did to her and that the prosecutor either knew that the claims were false or could not have had any reasonable or probable belief in their truth. The need to make findings about Ms Fregnan's truthfulness and credibility will likely be common to all proceedings. However, as I have said, there may be a distinct procedural disadvantage to Ms Fregnan if the evidence she gives in her claim is admitted against her as evidence upon which Mr Stanizzo seeks to rely in his cross-claim. There will be other issues of this type that span all proceedings so that there will be a need to be constantly vigilant that conflicting or divergent findings on similar facts are not made in different proceedings.
If there is any possibility that one of the parties to these separate proceedings might improperly be faced with an inadvertent reversal of the onus of proof, depending upon the order in which the cases are heard, I think it is Mr Stanizzo. As I have indicated, it is at the heart of his claims that Ms Fregnan's allegations of sexual assault are false. If he is required to go first, he will have to do so before his accuser on that topic has called her own evidence. It seems to me that the fairest way forward is to require Ms Fregnan to call her evidence on that topic. The allegations will then have been fully aired in her proceedings. Any perceived disadvantage to her in the cross-claim can be ameliorated by restricting cross-examination of Ms Fregnan to the subject matter of her claim. Questions going to her position as a cross-defendant can either be restricted or quarantined.
The order in which the proceedings have been commenced will also have influenced the decisions that the parties have made as the cases have proceeded up to this point. For example, but obviously, all of Mr Stanizzo's claims were filed after Ms Fregnan commenced her proceedings against him. Correspondingly, Ms Fregnan's original claim for damages was filed well after she reported them to the police on 8 October 2009, but before all charges based on her allegations had become the subject of a nolle prosequi entered in Mr Stanizzo's favour on 2 August 2013. Mr Stanizzo might in those circumstances reasonably have anticipated that his cross-claim would be heard following her claim and that his subsequently filed separate proceedings would follow that.
There does not in all of these circumstances appear to be any compelling reason why what might be described as the natural order of things should be disturbed.
[2]
Order
I order that the proceedings be heard in the order in which they were filed.
[3]
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Decision last updated: 12 February 2019