Kovalenko (a pseudonym) v Wallace

The first order sought was the dismissal of the proceedings brought on the basis that the defendant alleges the plaintiff wrongfully withheld from him the two documents in Exhibit 1 from the very beginning of these proceedings, being 9 January 2020.

When I asked the defendant what obligation was on the plaintiff to provide those documents to him at that stage, he understandably (not being legally trained or experienced) could not identify any such legal obligation. None is apparent to me. I am not aware of any direction made by the Court or practice note or any other legal obligation which required the contents of Exhibit 1 to be brought to Mr Wallace’s (a pseudonym) attention at that stage.

In submissions, I asked Mr Wallace, assuming these documents had been given to him, what would then have occurred. His answer was that he would have given them to the lawyers then representing him in his criminal proceedings and those lawyers may (I emphasised the word ‘may’) have used them in some fashion to the benefit of Mr Wallace in his criminal trial.

That is a matter entirely for speculation and is not a sufficient basis to dismiss these proceedings. These are civil proceedings and what effect those documents may or may not have had on the criminal proceedings does not seem to me to be relevant.

The second order sought was an application for a stay. The defendant sought the stay because he said he has difficulty sending and receiving material from the AMC where he is incarcerated. In submissions, he said he has no difficulty now receiving material by email. He has some difficulty sending material by email where, for example, the material might consist of an affidavit of his that needs to be sworn before a witness, such as a Justice of the Peace.

That difficulty can be accommodated, as it was in this application by directions being made that unsworn material could be served by Mr Wallace on condition that that material be sworn the next time Mr Wallace is able to attend court. That happened today when I had Mr Wallace orally affirm his affidavit dated 16 November 2023.

Mr Wallace’s other complaint was his limited ability to conduct research for his upcoming hearing. He has access to AustLii. He has access to the Court rules. In submissions, he wanted to research certain material, but the material identified did not seem to me to be conducive or helpful in his defence of the case. He is entitled to cross-examine the witnesses for the plaintiff that he identified in submissions, such as a psychologist.

It is a very severe thing to stay proceedings, as the High Court of Australia recently pointed out in GLJ v Trustees of Roman Catholic Church for Diocese of Lismore [2023] HCA 32; 97 ALJR 857. In that case, Kiefel CJ, Gageler, and Jagot JJ said at 862 [3]: As will be explained, the grant of a permanent stay to prevent an abuse of process involves an ultimate decision that permitting a matter to go to trial and the rendering of a verdict following trial would be irreconcilable with the administration of justice through the operation of the adversarial system. That ultimate decision must be one of last resort on the basis that no other option is available. This is why only an exceptional case justifies the exercise of the power of a court to permanently stay proceedings.

In my view, the reasons advanced by Mr Wallace do not justify assessing this case as an exceptional case justifying the exercise of the power to permanently stay proceedings.

The third matter raised by Mr Wallace was for a preliminary ruling on the admissibility of what he called the “criminal trial verdict and judgment documentation and appeal verdict and judgment documentation”.

Sections 92 and 178 of the Evidence Act 2011 (ACT) (the Evidence Act) govern the admissibility of certificates of conviction. In these subsequent civil proceedings, a certificate has been obtained and dated 25 July 2023.

It is unusual for a judge in my position to, in advance of the trial and when I am not the trial judge, rule on the admissibility of evidence. The admissibility of the certificate and any other like material under the provisions of the Evidence Act I have referred to above should be determined by the judge hearing the trial.

However, I will make orders directing the plaintiff to include the certificate of conviction in the court book and will direct the defendant to provide any objections to the admissibility of that material so that the admissibility of the material is brought to the attention of the trial judge at the earliest opportunity.

The fourth matter raised was the costs of 19 May 2023. What occurred is that Mr Wallace, after his conviction, and after the dismissal of his appeal to the ACT Court of Appeal, sought special leave to appeal to the High Court.

Sensibly, that was brought to the attention of this Court, which stayed the civil proceedings pending the outcome of the High Court special leave application and vacated the then hearing dates of 13-14 June 2023. The Registrar who made that order reserved costs. Mr Wallace really seeks an order that he not pay those costs.

In my view, the costs of that application should be costs in the cause because the necessity for that application is simply one of those administrative-type matters that arise sometimes in cases for which no party is really responsible.

Subsequent to this ex tempore judgment, I enquired of the parties, and particularly the plaintiff, whether they desired a pseudonym order. The plaintiff replied in the affirmative and there has been no response from the defendant.

I shall make pseudonym orders in relation to both parties for the protection of the plaintiff. Anonymising the defendant’s name will assist in preventing the identification of the plaintiff.