By Notice of Motion filed on 5 October 2023, together with a requisition filed on 23 August 2023, the applicant, Sun Kuhsun, seeks an order that his claims be heard and determined by a judge and jury, rather than a judge alone. He has claimed, by way of a Summons filed on 8 February 2023, that he was assaulted by members of the New South Wales Police Force.
The Notice of Motion came before me in the Common Law Duty list on 12 April 2024.
Mr Kuhsun is self-represented and, on 12 April 2024, had the assistance of an accredited interpreter.
The State of New South Wales, the respondent to the Notice of Motion, was represented by Ms Fizaa of Makinson d'Apice Lawyers. The respondent neither consented to nor opposed the application.
[2]
Background
On 8 February 2023, Mr Kuhsun filed a Summons, along with a supporting affidavit filed on the same date, naming four police officers and the State of New South Wales as defendants. Mr Kuhsun's Summons as originally filed read as follows:
"STATEMENT OF CHARGES - INDICTMENT
COMMON ASSAULT - crim.law. An assault is any unlawful attempt or offer with force or violence to do a corporal hurt to another, whether from malice or wantonness; for example, by striking at him or even holding up the fist at him in a threatening or insulting manner, or with other circumstances as denote at the time. an intention, coupled with a present ability, of actual violence against his person, as by pointing a weapon at him when he is within reach of it. When the injury is actually inflicted, it amounts to battery.
PARTICULARS OF THE OFFENCES
1. Pursuant to s. 13 of the Crimes Act 1914, Sun Kuhsun (aka Hadi Rassekhi Kazerooni) institutes these proceedings of the indictment for Assault against the First, Second, Third and Fourth Defendants who are Officers in the NSW Police Force. The times, places and details of the offence are in the Affidavit accompanying this Summons.
2. Pursuant to s. 5 of the Crown Proceedings Act 1958 and s. 8 of the Law Reform (Vicarious Liability) Act 1983, Sun Kuhsun (aka Hadi Rassekhi Kazerooni) holds the [respondent] accountable.
RELIEF CLIAMED
1. THAT a Jury adjudge the First, Second, Third and Fourth Defendants did assault Sun Kuhsun (aka Hadi Rassekhi Kazerooni) and impose punishment as they deem appropriate and necessary.
2. THAT a Jury adjudge the [respondent] to be vicariously liable and pay to Sun Kuhsun (aka Hadi Rassekhi Kazerooni) aggravated and exemplary damages of $AUD 1,000,000.00 (one million Australian dollars) or as they deem to be fit.."
Kuhsun v Azzi [2024] NSWSC 670 | Case summary | Zoe
The first four defendants are four named police officers, and the fifth defendant (the respondent to the current Notice of Motion) is the State of New South Wales.
Mr Kuhsun claims he was assaulted in the course of reporting to a police station as part of his bail conditions, as well as being assaulted again several months later when he attended court. As set out in his affidavit, it is claimed that on 22 February 2018:
"[…] suddenly a police grab my skin shoulder and pulled up another police men kicked me and pulled me out of Police station to the front of right corner sit of police station I get injured by several police with a lots of violence I was very surprised and scared , they hit My face to the wall and pushed to my Neck and then they did tied my hands Brutally from behind and pull up my hand right more than left hand in this time.
I get a lots of pain and I get very weak they pushed me to the cage police car They did very bad and aggressive drive as well they open my facebook and laughing to me.
When we arrived to the another police station the main police officer took off His name badge they were 5 or 6 number police officer did assault me.
When I was very illness emergency send me to the Auburn Hospital I did not Allow to them to inject me because I think they want to kill me."
Mr Kuhsun detailed a further complaint said to have occurred on 6 December 2018. Included in that complaint was the following:
"In the 6 December 2018 I attended to the Fairfield local court in the court suddenly my feel got bad because more time I attended to the court as well Because my interpreter told me judge said today you have to go to the jail.
Suddenly my feeling become very bad like vomiting , I left the court and I went To the bathroom my feeling was very bad with to much stress and fear, when I Was in the bathroom several time my interpreter […] as well court staff […] they Attended to the bathroom for return me to the court but I was not able to talk Or answer to them my feel was very bad.
Suddenly police come to the bathroom they told me comeback to the court I could not talk during police force me and then they did hand cuff to my hands suddenly a police officer come to the bathroom he grab my neck with strong Push and lifting me from the ground the police officer was short he stand up to the step which is in the bathroom to reach for lifting me as well the police officer with his fingers pressed my neck spine , I was so scared because his face was very scary I told him you want to kill me.
In this time again I become sure they want to kill me because Mr […] and his Friend death threat before as well they told me they are very powerful in the Australia as well they connect with Police and parliament House.
The police officer pushed my neck until I could not breathing I became lethargic."
Mr Kuhsun included further detail about what he contends occurred following this, and also further detail about the allegation itself. He claims that his shoulders (his right shoulder more than his left) and his neck were injured.
Mr Kuhsun also set out some detail, not all of which is easy to follow, about attending the Gold Coast for a Taekwondo Australia Federation event where he was invited to be a referee and a judge. He also set out some detail about eating some food whilst he was at the Gold Coast and becoming ill, apparently with food poisoning. The last paragraph of the affidavit filed on 8 February 2023 states:
"tow weeks ago some one call me undercover his number phone he said call from Merrelands Police station he said in the my complaint writ about poison food relation by police I told him that is correct, he told me if you complained about it they come to arrest me."
On 14 March 2023, the matter was listed for a Directions Hearing before the Registrar. The respondent indicated its concerns with the Summons, and Mr Kuhsun advised the Registrar that he was having difficulties obtaining legal representation.
The Registrar made the following order:
"1. [Mr Kuhsun] is to file and serve any Notice of Motion and supporting affidavit seeking orders for pro bono assistance and / or an interpreter, by 28 March 2021, to be made returnable for Directions Hearing on 4 April 2023."
On 31 March 2023, Mr Kuhsun filed a Notice of Motion and affidavit requesting an interpreter and legal representation.
On 4 April 2023, the matter was listed for a Directions Hearing before Registrar Jones. On that occasion Registrar Jones referred the matter to the Duty Judge, Rothman J, who made the following orders:
"1. Pursuant to r 7.36 of the Uniform Civil Procedure Rules 2005 (NSW), the Court refers [Mr Kuhsun] to the Registrar of this Court for the purpose of obtaining pro bono legal advice in this matter. Such assistance to be all or any of advice in relation to the proceedings sought to be commenced, representation on directions hearing, interlocutory or final hearing, arbitration or mediation, the drafting or settling of documents to be filed or used in the proceedings and representation generally if not otherwise covered in the aforesaid.
2. The Court recommends that, to the extent the Registrar is able to do so, that enquires be made as to whether an interpret can be found in Farsi without cost to [Mr Kuhsun].
3. Costs to be costs in the cause.
4. Orders to be entered forthwith."
On 31 May 2023, the matter was listed for a Directions Hearing before the Registrar. On that day, Mr Kuhsun advised the Registrar he had been unable to obtain legal representation. The respondent notified the Court of its intention to file a Notice of Motion to dismiss the proceedings with costs if no progress had been made by the next Directions Hearing. Orders were made to the following effect:
"1. The respondent is to correspond with Mr Kuhsun in relation to proposed deficiencies in the summons, by 14 June 2023.
2. Matter stood over for Direction Hearing on 21 June 2023."
On 14 June 2023, a letter was sent to Mr Kuhsun on behalf of the respondent advising of the proposed defects in his claim. On 15 June 2023, Mr Kuhsun replied indicating that the Summons was correctly filed.
On 21 June 2023, the matter was again before the Registrar for Directions, and the following orders were made:
"1. The [respondent] is to file and serve any Notice of Motion and Affidavit in support seek a Strike out of the Summons by 5 July 2023, to be made returnable for Directions Hearing 19 July 2023.
2. Stood over to Directions Hearing on 19 July 2023."
On 3 July 2023, the respondent filed a Notice of Motion seeking the following orders:
"1. Pursuant to rule 13.4 of the Uniform Civil Procedure Rules 2005 (NSW), the proceedings commenced by way of Summons filed on 8 February 2023 be dismissed.
2. [Mr Kuhsun] to pay the [respondent's] costs of this motion.
3. [Mr Kuhsun] to pay the [respondent's] costs of the proceeding."
This Notice of Motion was heard before Wright J on 11 August 2023.
In the course of the hearing before Wright J, the following exchange occurred:
"HIS HONOUR: It does not seem then that it would be appropriate to dismiss the proceedings in whole, would it […] because there is [a] cause of action identified and having regard to what is identified in the affidavit, there is a date, time and place, there is an indication of what is alleged to have taken place on the two dates, the people involved, what damage Mr Kuhsun says was caused to him, and so on. Doesn't that sufficiently put your client on notice?
[SOLICITOR]: I accept that. Our client's concern is that [Mr Kuhsun] purports to commence proceedings for assault -
HIS HONOUR: That seems to be clearly appropriate for a civil damages claim. Mr Kuhsun, what the representative for the State is saying is that you can claim, by this process, civil damages for assault. You cannot, by this process, seek to have them made criminally liable and punished as criminals. That is different all together. As I understand it, what you are really seeking here, and correct me if I am wrong, is civil damages for the assault, or assaults, that you say were committed by the police officers and for which the State is responsible.
[MR KUHSUN]: I agree with you.
HIS HONOUR: I think that makes that clear [...]. Of course I have the power to strike out any irrelevant or vexatious matters from a document. Wouldn't the appropriate course be to just order that the references to criminal proceedings be struck out from the documents, so that everyone understands what Mr Kuhsun has agreed to, namely this is a civil claim for damages for the tort of assault."
His Honour accordingly did not dismiss the matter but made a number of orders as follows:
"1. Pursuant to r.6.6(1) of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR), the proceedings are taken for all purposes to have been duly commenced by the filing of the Summons on 8 February 2023.
2. Pursuant to r.6.6(3)(a) of the UCPR, the affidavit of [Mr Kuhsun] sworn 16 January 2023 is to stand as pleadings in these proceedings.
3. Pursuant to r.6.6(4) of the UCPR, the proceedings are to continue on pleadings.
4. The [respondent] is to file and serve its defence on or before 1 September 2023.
5. Service of the Summons and any other documents on, and any requirement for appearance by, the 1st, 2nd, 3rd or 4th Defendant is dispensed with until further order of the Court.
6. Pursuant to r.4.15 of the UCPR, the words: 'statement of charges - indictment'; 'crim.law.'; 'pursuant to s.13 of the Crimes Act 1914'; 'of the indictment'; and 'against' are all struck out of the Summons filed on 8 February 2023 and in place of the word 'against' the word 'by' is inserted.
7. The directions hearing before Registrar of 23 August 2023 is vacated.
8. Pursuant to s.26 of the Civil Procedure Act 2005 (NSW) (CPA) the whole of the proceedings is referred for court annexed mediation in accordance with Part 4 of the CPA.
9. The mediation is to be completed no later than 10 November 2022.
10. The proceedings are listed before the Registrar for directions on 13 November 2023.
11. The [respondent's] Notice of Motion filed on 3 July 2023 is dismissed with no order as to costs. The Court recommends that a Persian interpreter be made available for Mr Kuhsun for the purposes of the court annexed mediation."
On 10 October 2023, the respondent filed a Defence and a Notice of Motion. The Notice of Motion sought the following orders:
"1. Pursuant to rule 6.29 of the Uniform Civil Procedure Rules 2005 (NSW), the first to fourth defendants be removed as parties from the proceedings by reason of section 9B(2) of the Law Reform (Vicarious Liability) Act 1983 (NSW).
2. [Mr Kuhsun] to file an Amended Summons giving effect to Order 1.
3. [Mr Kuhsun] to pay the [respondent's] costs of this motion."
The Defence sets out that Mr Kuhsun was charged with assault with an act of indecency on 2 April 2017, and that he was subject to conditional bail including reporting to Parramatta Police Station three times a week, and that he failed to attend on 14 and 21 February 2018 in accordance with his conditions. The Defence further sets out that on 22 February 2018, one of the named police officers told Mr Kuhsun he was under arrest for breaching his bail conditions and that he was asked to stand up multiple times but refused. The police officer, with another assisting, it is stated, took hold of Mr Kuhsun by his upper arm region and used reasonable force to get him to stand up. It is further stated Mr Kuhsun dropped his body weight and became dead weight to lift which required the assistance of another officer, and that this occurred more than once. Mr Kuhsun was conveyed to Granville Police Station where he was charged. The Defence sets out that Mr Kuhsun was continually instructed to stop resisting and to obey lawful police directions, but the directions were continuously disregarded by Mr Kuhsun. Most of Mr Kuhsun's claims in relation to the incident on 22 February 2018 are either not admitted or denied.
In answer to the claims relating to 6 December 2018, again a number of claims are either not admitted or denied. The Defence sets out that Mr Kuhsun's matter was adjourned at 10:15am, following which Mr Kuhsun walked over to one of the walls within the court room and started smacking his head against the wall multiple times before running out of the court room and into the male bathrooms. A police officer was asked to check on Mr Kuhsun and found him, it is set out, in the male bathrooms, on the floor in the foetal position banging his head against the wall saying "shoot me, shoot me, shoot me" before continuing to bang his head against the wall. The Defence sets out that the police officer feared for Mr Kuhsun's welfare and used reasonable force to stop him from banging his head against the wall and restrained Mr Kuhsun by placing him in handcuffs. The police officer believed Mr Kuhsun appeared to be mentally ill, or mentally disturbed, and was attempting to cause serious physical harm to himself. Subsequently, Mr Kuhsun was detained pursuant to s 22 of the Mental Health Act 2007 (NSW).
On 5 October 2023, Mr Kuhsun filed the Notice of Motion seeking a trial by jury.
On 3 November 2023, the Common Law Registrar made orders in accordance with prayers 1 and 2 of the respondent's Notice of Motion filed on 10 October 2023. As at 12 April 2024, the Amended Summons removing the four police officer's names had not been filed by Mr Kuhsun.
[3]
The Notice of Motion
Mr Kuhsun's Notice of Motion filed on 5 October 2023 is in the following terms:
"1. The Applicant, Sun Kuhsun (aka Hadi Rassekhi Kazerooni), requires trial by jury in this matter as is his inalienable, constitutional, and common law right.
2. Could you please change my appointment to as soon as possible."
Mr Kuhsun filed an affidavit on 5 October 2023 in support of the Notice of Motion. Included in that affidavit was the following:
"Please be aware that any mental and physical problems that happen to me are the direct fault of the [respondent] (NSW police) and Supreme Court of NSW because I cannot bear all this pressure Mental and Physical I am not safe at all, several times I apply to referral my case to the Honourable Jury Trial but registration did not referral my case to the Jury Trial I cannot wait until 01/December/2023 and watch my life burn. Could you please change my appointment from 01/Dec/2023 to as soon as possible for mediation and referral my case to the Honourable Jury Trial because my feel is very HORRIBLE and dangerous. I will send a copy of my case to the Parliament House Canberra."
Mr Kuhsun filed a further affidavit dated 4 April 2024. Mr Kuhsun also relied upon this affidavit in the hearing of the Notice of Motion.
Included in the affidavit filed on 4 April 2024, the following was set out:
"3. I was assaulted by certain Police Officers at the Merrylands Police Station on the 22nd day of February 2018 and after being assaulted they transferred me to the Granville Police Station, put into a small glass room to wait for an ambulance to be taken to the Auburn Hospital and then to the [Fairfield] Detention Police Station that night and on the following day they took me to the Fairfield Local Court.
4. On the 6th day of December, 2018 at the Fairfield Local Court I was again brutally assaulted in the bathroom by a short, bald-headed and fat Policeman. I was taken to the Fairfield Police Station for investigation and, when an ambulance arrived, I was taken to the Emergency Department of Liverpool Hospital where I received treatment".
Mr Kuhsun set out further material, and annexed a number of medical, physiotherapy, and psychological reports. He said that his "friend, John Wilson", helped him with the affidavit, and then set out the following paragraphs which he said are directly transposed from Mr Kuhsun's email to Mr Wilson.
"19. A person who did test my fingers and my hands with special electrical devices he asked me about my symptoms in my Toes and my symptoms [in] my Neck so he told me the Neurologist didn't asked to him to do test my Neck and my Toes so I asked to the Dr .shareef Dowla Neurologist for test my Neck and my Toes but he rejected my request.
20. As well several times I sent massages to the Dr.Sylvia Barber consultant psychiatrist &Psychotherapist for support latter about my health but she didn't answer me.
21. Also afew Dr JP refused to accept me because they say they don't want involved with the Police and court case
22. I will not allow them to VICTIMIZE me more than this,also a few MIR reports didn't write the truth and didn't tell me the truth answer about what is happening to my Neck and my shoulders and Dr didn't say or write anything about my future my MENTAL AND PHYSICAL HEALTH, I ENDURE A LOT OF PAIN EVERY DAY.
23. Also every day these PAIN becomes more SEVERE.
24. In addition, I did not received any letter or reports of the mediation session which it was in 01/December/2023 through the mediator,although that session was unreasonable from the other party it wasn't HONEST AND LOGICAL AND JUSTICE.
25. Even I hadn't a lawyer and a interpreter.
26. Also returned to the Liverpool Hospital for several times to get the report because that time the Police Officer (I couldn't find his name).
27. In the bathroom Fairfield court Brutally Assaulted me and injured my Neck and my shoulders the Liverpool Hospital didn't give me the answer to the report, so in the end I received an unfair and completely FALSE report from the Police about Liverpool Hospital.
28. In 24/01/2024 in the Supreme court room A Level 10 my filing get very bad and I passed Out so emergency Ambulance transferred me to the Hospital a nurse insisted me to drink orange Juice but I told him I don't eating or drinking Any things but he opened the Juice and told Me you have to drink it,after a few hours my Brain get disturbed and my kidneys hurt a lot ,so at a next day I attended to the Dr and Westmeath hospital in the Parramatta.
29. COULD YOU PLEASE put at end to this horrible and sad story and referral me to the Hon TRIAL BY JURY which I filed REQUISITION FOR TRIAL BY JURY in 23/AUG/2023.
30. I am not a lab rat ,I AM A HUMAN".
[4]
The 12 April 2024 hearing
At the hearing, through the interpreter, it was clarified with Mr Kuhsun at the outset that there was no such thing as a jury trial without a judge being present. The options were a trial by a judge alone, or a trial by judge and jury.
Mr Kuhsun submitted that he required a jury to hear the matter as "a judge only can be biased". He further submitted that with a jury there will be 12 different minds and ways that people will look at the case, leading to justice.
When asked by me why he was of the view that a Supreme Court judge could or would be biased there was the following exchange:
"[MR KUHSUN] (THROUGH INTERPRETER): Yeah, because I have felt, all the way, that I am on my own and everyone are taking side with the police. So - and once the judge told me the police, they have got power and you need to have a lawyer to fight with them.
HER HONOUR: Sir, why are you of the view that any Supreme Court Judge would be biased?
[MR KUHSUN] (THROUGH INTERPRETER): Since 2017 the matter has been in process and nothing has been sorted out and finished.
HER HONOUR: But why does that show that any judge of this Court would be biased?
[MR KUHSUN] (THROUGH INTERPRETER): The fact that they are playing with my life. I am a world athletics and -
HER HONOUR: Sorry, you are a?
[MR KUHSUN] (THROUGH INTERPRETER): World athletics.
HER HONOUR: World athletics.
[MR KUHSUN] (THROUGH INTERPRETER): Yes. And I don't know if my CV is before your Honour and it is mentioned there, but that has stopped because of this matter.
Either today can the whole thing be finalised or give a date for trial jury, please? I can't just continue like this, my life here."
A little later in the proceedings the following exchange occurred:
"HER HONOUR: Right. Now, in the Supreme Court Act of New South Wales, which I must rule in relation to, section 85 says: 'Proceedings in any division are to be tried without a jury unless the Court orders otherwise', and it says I can only order otherwise if you have filed a requisition, which you have, for a jury; you have paid the fee, which you have; but also ‑ this is the important bit ‑ I must be satisfied that the interests of justice require a trial by jury in the proceedings.
[MR KUHSUN] (THROUGH INTERPRETER): Yes, I want the justice to be in full force to be decided in my case because I escape my country and looking for a fair and justice country and I am here, and that is what I am asking from Australian Government. Cause it is hard for me to see and accept that I get wronged by some authorities in this country without any consequences.
And I try my best to stop some part of the police force to ruin the very justice images that Australian Government has, and it has to be restored by getting the just result for this. I fear that because I was a lonely refugee here, they were able to waste my time for many years regarding this and use my not knowing about things here. So, I am not going to be satisfied unless I have a fair hearing.
HER HONOUR: Yes, I understand that you want a fair hearing and that this will be heard by this Court, but I need to know why you need particularly a judge and a jury, as opposed to just a judge of the Supreme Court?
[MR KUHSUN] (THROUGH INTERPRETER): Because I think that if it is a judge and jury, then there is an addition of 12 mind and way that people look at the case and that could be more justice, more clear as what the final justice might be. You know, I'm not only fighting for myself, I'm just thinking that people in the situation that I am, they need to be given the chance to be absolutely fair. If the system provides this, the opportunity, why not going with the more people to see the matter and give the verdict.
I was becoming quite disappointed from the Australian law. When I came here, I was told by everyone that it's heaven here but, since I have been here, I've put in hell, I am not in heaven.
HER HONOUR: Yes. Anything else you want to say to me why you believe you should have a judge and a jury, just as opposed to just a Supreme Court Judge to determine your matter?
[MR KUHSUN] (THROUGH INTERPRETER): One more thing and I think that, to prove to the police that they need to obey the law, as well as normal citizens. They pressured me in many different ways. How will I ever get the justice and - or I will die.
HER HONOUR: Yes. Anything else you wish to put?
[MR KUHSUN] (THROUGH INTERPRETER): You know, I have lost my trust, the system, and I think that, if I get the chance to have judge and jury hearing, it restores the lack of trust that has ‑ I have developed and I trust the system and I believe that that is the system, okay, whatever the outcome. And I want to revive my reputation that I have lost, my spirit that I have lost, and my life that I have lost."
Mr Kuhsun submitted further in relation to his allegation that the police had prevented him from continuing with his sports and attending college, but when asked again as to why he wished to have a judge and jury determine his claim he concluded:
"[MR KUHSUN] (THROUGH INTERPRETER): Nothing more; just that. I said everything. All the ways is closed before me. I can't go any other ‑ see my family, I can't get married, I can't have my life, with this case. It is only stressful life here."
When I indicated that I would reserve my decision but would make a decision prior to the next Directions Hearing on 26 June 2024, Mr Kuhsun became increasingly upset. Included in the exchange was the following:
"HER HONOUR: […] I am going to think about it and give you a decision as to whether or not you should have a judge and jury. When I've decided, you will be notified and the other side. A judgment will be delivered. You can come to Court or we can send it to you. And then that decision as to whether or not there is a judge and a jury or just a judge will be made. I will make it before the next directions hearing.
[MR KUHSUN] (THROUGH INTERPRETER): I can't wait until June. I can't wait until June.
HER HONOUR: Well, today is 12 April. I hope to get it out at least two weeks before 26 June. I will do my best, but it is definitely before 26 June. And there is nothing to be done before then because that is where it is in the Court.
[MR KUHSUN] (THROUGH INTERPRETER): I just want to say my last point that you know. I thought ‑ I had the impression that today I was going to get the date. If that is another procedure that is going, you know, delayed and delayed, I won't stay in Australia, I will leave and I will take the matter to the international.
HER HONOUR: Right, well, sir, I am going to reserve my decision.
[MR KUHSUN] (THROUGH INTERPRETER): I can't wait until then.
HER HONOUR: Well, the matter is not otherwise before the Court.
[MR KUHSUN] (THROUGH INTERPRETER): You are not dealing with a stupid person. […]
[MR KUHSUN] (THROUGH INTERPRETER): Because the system from 2017 are telling me in many ways that I am a stupid person. How far‑‑
HER HONOUR: Excuse me, sir, do not shout, we are in a courtroom; do you understand?
[MR KUHSUN] (THROUGH INTERPRETER): This is the result of what police have done to me. They ‑ you know, I am a very stressed‑‑
HER HONOUR: Yes, I understand. Even if you had not made this application today, sir, the next time the matter is before the Court, as I understand it, is to set a date for hearing on 26 June. That is when the date will be set.
[MR KUHSUN]: No.
[MR KUHSUN] (THROUGH INTERPRETER): They have given me hundred times the date that your date will be fixed, and nothing happened.
HER HONOUR: Right.
[MR KUHSUN] (THROUGH INTERPRETER): Either this is finished today or I will go overseas and proceed the matter at the international level.
[MR KUHSUN]: Parliament House.
[MR KUHSUN] (THROUGH INTERPRETER): I was in Canberra three weeks ago. It's true that my ‑ I am not fluent in language, but otherwise my brain works very well and I am quite aware what is happening.
HER HONOUR: Well, the Court record indicates, sir, that on 21 March of this year ‑ are you listening? ‑ on 21 March of this year, the Registrar made certain orders, and I think they emailed those orders to the parties?
MS FIZAA: They did, your Honour.
HER HONOUR: And that Registrar ordered this: In the substantive proceedings ‑ so that is your assault proceedings ‑ you were to serve any expert quantum liability evidence by 30 April 2024. The defendant is to serve any expert quantum evidence before 17 June 2024. And the substantive matter ‑ that is the assault matter ‑ is adjourned to 26 June 2024 for directions, anticipating considering allocation of hearing date.
Then, also what was listed was the motion filed 5 October 2023 seeking jury trial for hearing before the duty judge on 12 April 2024, which is today, and the registry to send copy of the orders to the parties. So all that was happening today was to decide whether or not the matter should have a jury plus a judge.
The other matter is otherwise back before the Registrar on 26 June 2024. Did you understand that?
[MR KUHSUN] (THROUGH INTERPRETER): I don't trust the system here; whether it is the Health Department or Justice. The last occasion here I just ‑ I felt a little bit sick and they took me to hospital or somewhere for medical assistance and they forced me to drink something that, as a result of that, I developed some kidney problems and I don't ‑ practically I don't trust.
HER HONOUR: Right.
[MR KUHSUN] (THROUGH INTERPRETER): In my view, police is forcing the ‑ to get the wrong result of MRI and sending me many times to have another MRI and I was told that MRI clinic, that it is not good this many MRIs someone taking‑‑
HER HONOUR: Okay, I think we are getting off the topic.
I am going to reserve my decision. That means I am going to think about it and I will deliver my decision as soon as I can and certainly before the next date of the directions hearing.
[MR KUHSUN] (THROUGH INTERPRETER): I may not be here by then, in Australia.
HER HONOUR: Can I thank you, [Madam Interpreter], for your kind assistance, and I will adjourn the Court."
[5]
The Supreme Court Act 1970 (NSW)
Section 85 of the Supreme Court Act states:
85 Trial without jury unless jury required in interests of justice
Proceedings in any Division are to be tried without a jury, unless the Court orders otherwise.
The Court may make an order under subsection (1) that proceedings are to be tried with a jury if -
any party to the proceedings -
files a requisition for trial with a jury, and
pays the fee prescribed by the regulations made under section 18 of the Civil Procedure Act 2005, and
the Court is satisfied that the interests of justice require a trial by jury in the proceedings.
The rules may prescribe the time within which a requisition must be filed for the purposes of subsection (2) (a).
A fee paid under this section is to be treated as costs in the proceedings, unless the Court orders otherwise.
[…]
As a result of the order made by Wright J on 11 August 2023, striking out any reference to criminal proceedings, the substantive claim is now clearly a civil claim for damages for the tort of assault, and thus as set out in s 85(1) the proceedings are to be tried without a jury, unless the Court orders otherwise.
It is also clear that Mr Kuhsun has satisfied the requirements of s 85(2)(a). The question for determination is whether the Court is satisfied, pursuant to s 85(2)(b), that the interests of justice require a trial by jury in the proceedings.
[6]
Applicable legal principles
Justice Johnson set out a convenient summary of the applicable legal principles in Simon v Hunter and New England Area Health Service [2009] NSWSC 758 at [13]-[28]:
"13 The leading decision with respect to the construction and application of s.85 Supreme Court Act 1970, in its present form, is that of the Court of Appeal in Maroubra Rugby League Football Club Inc v Malo (2007) 69 NSWLR 496.
14 The High Court of Australia refused an application for special leave to appeal from the decision of the Court of Appeal: Malo v South Sydney District Junior Rugby Football League Limited and Anor [2008] HCA Trans 135 (7 March 2008).
15 The following summary of principles is taken from the decision of the Court of Appeal in Malo.
16 In Malo, Mason P observed at 498 [9] that the longstanding entitlement to trial by jury in civil proceedings at common law had been removed as had the 'more Janus-faced statutory framework' discussed in Pambula District Hospital v Herriman (1988) 14 NSWLR 387 (cf Priest v State of New South Wales [2006] NSWSC 12 at [78]-[82], [106]-[122]).
17 The general rule for non-defamation matters is that proceedings in any Division of the Supreme Court are to be tried without a jury, but the Court has a power to order otherwise if the conditions in s.85(2) are met: Malo at 499 [13]-[14]. The presence of particular complex factual issues does not necessarily preclude an order for trial by jury, because those issues can be tried without a jury: s.85(5); Malo at 499 [15].
18 For the purposes of s.85(2), the 'interests of justice' refer to considerations going beyond the private interests of the parties, and a party's self-interested right to requisition for trial by jury is not to be endorsed in order to advantage that party: Malo at 499 [17]-[18].
19 The Court must be positively satisfied that the disinterested interests of justice require departure from the general rule from trial by judge alone: Malo at 499-500 [18]. In determining whether the interests of justice 'require' trial by jury in the proceedings, the applicant need not show 'ineluctable necessity', but the statutory language of 'require' connotes that which is obligatory, not that which is authorised: Malo at 501 [25].
20 Section 85 is concerned, and only concerned, with whether the interests of justice require departure from the mandated general rule that civil proceedings in the Supreme Court are to be tried without a jury: Malo at 502 [29]. Parliament has made the call that trial by judge alone is the norm. Absence of a 'representative' or 'community' viewpoint is not an inherent defect of trial by judge alone: Malo at 502 [31].
21 So long as the Court remains focused on the statutory test, it may have regard to the incidents of the two different modes of trial, both generally and in their application to the particular proceedings, but it must not lose sight of the fact that, as a general proposition, it must be assumed that each mode of trial is satisfactory and calculated to produce a fair trial of the action according to law: Malo at 500 [19].
22 Section 85(2)(b) does not direct or permit the Court to weigh which mode of trial is preferable in the proceedings, and to prefer trial by jury if traditional considerations or perceptions would have supported that mode. Nor does it permit judicial fact finding to be dispensed with on the basis that jurors may be perceived to be better equipped to discern 'moral, ethical or general social values', assuming them to be relevant to the task at hand: Malo at 502 [31]-[32].
23 The presence of fraud allegations, or major credibility issues, will not suffice for an order for trial by jury. Judges can and do decide such matters frequently and, unlike juries, their reasons are fully exposed, thereby aiding appellate accountability, itself a matter that serves the interests of justice: Malo at 502 [33]. Having made these observations, Mason P continued in Malo at 502 [33], in a passage relied upon by the Plaintiffs in the present application:
'This is not to deny that the combination of serious credibility issues and something more (for example, a serving judge as a potential witness) might require trial by jury in the interests of justice.'
24 Decision making may be value laden, but great caution is required before a court could be satisfied that reference to 'community' or 'moral, ethical or general social values' were pertinent to any proceedings, and that this could satisfy the judge that the interests of justice required departure from the general rule: Malo at 502-503 [34].
25 It is the judge, not the jury, who decides whether a duty of care exists and what is its scope. While the jury determines factual issues, including questions of breach and negligence, that task proceeds in accordance with the law as directed by the judge. In negligence, it is concerned with what is reasonable in the circumstances, in light of the evidence presented and the verdict of a jury has no precedential value: Malo at 503 [35].
26 A juror has no authority to disregard instructions because he or she is unhappy with the morality of the ground rules. Moral, ethical or social values are only pertinent so far as they address the task at hand. They should be clearly identified if they are to be taken into account as part of the reasoning towards satisfaction that s.85(2)(b) is met: Malo at 503 [36].
27 Since a jury verdict has no precedential effect, the novelty of the context adds nothing to deciding whether the interests of justice require the participation of jurors: Malo at 505 [46]-[48].
28 Care must be taken where it is submitted that the subject matter of the proceedings are such that a 'community activity' is involved, so that members of the general community are said to be well equipped to exercise a fact-finding function: Malo at 515 [49]-[50]. Mason P continued in Malo at 505-506 [51], in a passage relied upon by the present Defendant:
'In any event, I fail to see how community involvement in amateur sports administration could in itself lead to a court being satisfied that the interests of justice require a trial by jury. Members of the public have daily contact with roads and footpaths and many of them are ratepayers who may have a financial concern in the way in which local council's conduct their affairs. But these matters could not conceivably, standing alone, enliven the interests of justice to require trial by jury in preference to trial by judge alone in such matters. Sadly, cases involving injuries arising out of amateur sports injuries are quite commonplace. There is nothing that creates the reality or perception that the interests of justice would be undermined by judicial determination of such matters.'" (Emphasis in original.)
The basis for the Mr Kuhsun's application for a trial by jury appears to be that a judge would be biased in determining his claims against the police. Further, it appears to be contended that only a jury would give Mr Kuhsun a fair hearing and would determine his claim on the merits. Mr Kuhsun submitted he had lost trust in the system, and that having a jury trial would restore his trust in the system.
In my view, there is no basis at all for Mr Kuhsun's contention that a Supreme Court judge would be biased against him, and only a jury would give him a fair hearing. Mr Kuhsun has put nothing before the Court to substantiate such a serious claim. It must be rejected.
It is acknowledged that there may be credibility issues which arise in the determination of this case. That, in itself, is not sufficient to require a trial by jury. As noted above, judges can and do decide such matters frequently. Not only that, but a judge's reasons are fully exposed unlike the reasons of juries which are not.
Further, Mr Kuhsun's personal preference is not a sufficient basis to "require" a trial by jury "in the interests of justice".
There is nothing put before this Court which persuades me that a jury is "required" in this case. Indeed, in my view, because of Mr Kuhsun's particular presentation style, together with the fact he is self-represented, the interests of justice would not be well served at all by having Mr Kuhsun's claims heard by a jury.
Having carefully considered the facts and circumstances of this application, together with the submissions made by Mr Kuhsun, I am of the view that Mr Kuhsun has failed to satisfy this Court that the interests of justice require a trial by jury in these proceedings.
No submissions were made as to costs. It is appropriate that costs of the motion be costs in the cause.
[7]
Orders
I make the following orders:
1. Mr Kuhsun's Notice of Motion filed 5 October 2023 is dismissed.
2. Costs of the motion are costs in the cause.
[8]
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Decision last updated: 04 June 2024