Kuzmanovic v State of New South Wales as represented by the NSW Attorney Generals Department and Anor

Johnston v Australia and New Zealand Banking Group Ltd [2006] NSWCA 218 CASES CITED : Gunns Ltd v Marr [2005] VSC 251 Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72

Momcilo Kuzmanovic - Plaintiff PARTIES : State of New South Wales as represented by the NSW Attorney Generals Department - First Defendant State of New South Wales as represented by the New South Wales Police Force - Second Defendant

COUNSEL : Mr Kuzmanovic (unrepresented) - Plaintiff Mr P Saidi - Defendants

SOLICITORS : IV Knight, Crown Solicitor - Defendants

• 10 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION SCHMIDT J

2010/108836 MOMCILO KUZMANOVIC v STATE OF NEW SOUTH WALES AS REPRESENTED BY THE NSW ATTORNEY GENERALS DEPARTMENT AND ANOR

JUDGMENT 1 HER HONOUR: By motion filed in July 2010 the plaintiff, Mr Kuzmanovic, seeks leave to further amend his statement of claim. By motion filed in August 2010 the defendants seek orders striking out the plaintiff's statement of claim pursuant to Rule 14.28 of the Uniform Civil Procedure Rules 2005; in the alternative, orders that the statement of claim be dismissed pursuant to Rule 13.4 and in the further alternative, that the statement of claim be struck out on the basis that it is statute barred pursuant to the Limitation Act 1969. 2 The proceedings were commenced in May 2010 by statement of claim, which was amended by an amended statement of claim filed in May 2010. There Mr Kuzmanovic claimed that on 30 September 2003 he was arrested at his home and taken to Liverpool Police Station upon false charges of having murdered Radojko Djordjevic at Marulan in 1985. The charges were dismissed by this Court on 3 August 2005, by way of acquittal. In the meantime, Mr Kuzmanovic remained in custody. 3 Mr Kuzmanovic claimed damages for physical and psychological injuries and disabilities, suffered as the result of the false charge laid against him, which were proffered against him maliciously and without reasonable and probable cause. He also sought to recover legal costs and disbursements incurred in defending the charges; loss of income; and costs associated with post trial expenditure necessary to maintain his lifestyle. 4 Mr Kuzmanovic's motion was supported by an affidavit in which he deposed that he had received a letter from the Crown Solicitor's office in July 2010 which had invited him to amend his statement of claim. He provided a further amended statement of claim in respect to which he sought leave. 5 In the further amended statement claim, Mr Kuzmanovic also alleged that the Department of Public Prosecution maliciously and without reasonable and probable cause proffered charges against him of having murdered Radojko Djordjevic at Marulan in 1985, contrary to the provisions of the Crimes Act 1900. He was falsely imprisoned and this false imprisonment was continued by the defendants opposing bail applications; not utilising its discretion to discontinue or withdraw the proceedings; and requiring Mr Kuzmanovic to prepare for and run a trial to defend the murder charges. 6 From the written submissions pressed for Mr Kuzmanovic, it is now apparent that he wishes to pursue claims in respect of wrongful arrest, false imprisonment and malicious prosecution. These submissions were prepared with the assistance of legal advisers, but at the hearing Mr Kuzmanovic appeared unrepresented. 7 In the written submissions it was argued that Mr Kuzmanovic's proposed pleadings adequately disclosed the claims which he sought to advance, in order that the defendants could properly pursue its defence. I am unable to accept those submissions. In the event that the Court took a different view, Mr Kuzmanovic sought a further opportunity to put his pleadings into order. 8 The plaintiff's case was that the current and proposed pleadings were defective and embarrassing, causing prejudice so that the defendants could not properly plead a defence. The difficulties raised went to the absence of particulars as to those persons involved in the wrongful actions about which complaint was made and the failure to particularise what those actions were. 9 While malice was alleged, the particulars required to be given under UCPR 15.4 had not been provided. Malice was a state of mind which had to be attributed to a specified person. References such as those made to 'other supporting prosecutors', rather than specifying the individuals involved in matters complained about, were not sufficient to satisfy the requirements of the Rules. 10 Particulars as to the credibility and sustainability of evidence to which reference was made, was also not provided. In relation to the claimed malicious prosecution allegation, the charges laid were not identified, a critical element of such a prosecution. 11 In other paragraphs of the pleadings, the officers involved in the actions complained of weren't identified. Nor were particulars given as to how and why matters pleaded could be said to constitute false imprisonment. Nor had particulars been provided as to how an injury to the plaintiff's back had come about as the result of the grievances alleged. 12 It was explained that until a properly pleaded statement of claim was produced, it was not possible to ascertain whether or not any of the claims sought to be pressed were statute barred. On the face of the current and proposed pleadings there were obvious Limitation Act problems. On the pleadings as they presently stood, the allegations made were outside both a 3 year and a 6 year limitation period, given for example the allegation of arrest on 13 September 2003. 13 A defence could not be prepared, given the current difficulties. Consideration also had to be given to legislation such as the Law Reform (Vicarious Liability) Act 1983, for example, but that could not occur, without identification of the officers whose actions formed the basis of the claims sought to be pressed.

The pleadings are defective 14 It is apparent from even the proposed pleadings that they do not as yet comply with the requirements of the Rules. Mr Kuzmanovic, an unrepresented litigant, has now clarified the claims which he wishes to pursue as wrongful arrest, false imprisonment and malicious prosecution. If the matter is to proceed, the statement of claim must clearly advance those claims, particularised in compliance with the requirements of the Rules. 15 Mr Kuzmanovic explained that he now has legal assistance. Proper attention must be paid by those advisers to the requirements of the Rules. Attention should be paid to the observations of Bongiorno J in Gunns Limited v Marr [2005] VSC 251, where his Honour observed that:

"57 It is not the function of the Court to draw or settle a party's pleading. The Court is confined to the function of ensuring that pleadings are within the rules and fulfil the functions for which they exist. In particular, it must ensure that one party is not placed at a disadvantage by the failure of another to provide a proper, coherent, and intelligible statement of its case. In this case, it would be unfair to the defendants to require them to plead to this amended statement of claim. It is embarrassing within the meaning of RSC r.23.02. Not only must the pleading inform the defendants of the case they must meet now, but it must clearly set out the facts which the plaintiffs must assert to make good their claim with sufficient particularity to enable any eventual trial to be conducted fairly to all parties. Vague allegations on very significant matters may conceal claims which are merely speculative. If this be not the case, the plaintiffs must put their allegations clearly. Finally, the trial judge must, in due course, have some firm basis for making rulings on relevance. This is a very substantial set of claims and any trial will be a very complex one. The Court must ensure that the only claims which go to trial are those which the plaintiffs are able to set out in a coherent and detailed form."

The proceedings may not be dismissed 16 There is no question that the Court has the power to make orders sought, dismissing the claim, but they are not orders which should be made, if pleading amendment could cure the difficulties which the pleadings currently present. I take the view that paragraphs [4], [5] and the particulars of negligence and disability of the amended statement of claim must be struck out, but otherwise the orders sought striking out the claim must be refused, because I am not satisfied that pleading amendment would not cure the undoubted problems which exist with the statement of claim, in both its present and proposed forms. The same difficulties arose with paragraphs [6], [7], [8], [9] and [13], and the particulars of the proposed further amended statement of claim. Mr Kuzmanovic seeks an opportunity to replead and I am satisfied that he must have it, if justice is to be done between these parties. 17 In pursuing amendments to his pleadings, Mr Kuzmanovic must bear in mind that the Rules bind all litigants before the Court, including those who are self represented. They are intended to ensure that both the defendant and the Court are given a clear indication, from the outset, of the claims which he wishes to pursue and the facts on which they are based. Identification of such matters cannot be left to the trial. 18 The Rules impose these requirements because the parties' pleadings have important functions to perform for the conduct and eventual hearing of the case, especially for the identification of the legal and factual issues lying between the parties and the evidence which is relevant to their determination. 19 The form in which Mr Kuzmanovic has sought to plead his case to this point renders the defendants' task in responding to the claims sought to be advanced, difficult in some respects and impossible in others. In their current form, there are apparent Limitation Act problems, which must be addressed if the matter is to go forward. 20 Mr Kuzmanovic's amended pleadings must conform to the requirements of the Rules, particularly Rule 15.1, which requires that necessary particulars of all claims be provided and Rule 15.4, which must be observed in relation to the malicious prosecution claim. That claim contains as essential elements that the prosecution was brought without reasonable and probable cause and that it was brought maliciously (see Johnston v Australia & New Zealand Banking Group Ltd & Ors [2006] NSWCA 218 at [44]). 21 Mr Kuzmanovic must identify the factual foundation for the various claims which he seeks to pursue. The submission that the identification of the persons involved in the various acts about which complaint is made are matters for evidence at trial may not be accepted. Nor may it be accepted that sufficient details have been provided, or are contained in the currently proposed pleadings as to the acts complained of, and that further details and particulars of the various claims are a matter for evidence at trial. The pleadings must clearly identify the facts which it is alleged establish the claimed wrongful arrest, malicious prosecution and false imprisonment. 22 At present the statement of claim also makes various 'rolled up' allegations, the difficulty with which is discussed by Basten JA in Johnston at [60] to [65]. This problem must also be attended to. The allegations pursued against the various individuals involved in what is alleged against the defendant must be clearly identified, preferably in separate paragraphs.

Limitation Act 1969 23 Section 14(1)(b) imposes a 6 year limitation period for claims brought in tort, calculated from the date on which the cause of action first accrued. Actions founded on negligence, nuisance or breach of duty, for damages for personal injury, have a 3 year limitation period from the date on which the cause of action first accrues to the plaintiff (s 18A). Sections 50C and 50D provide:

" 50C Limitation period for personal injury actions (1) An action on a cause of action to which this Division applies is not maintainable if brought after the expiration of a limitation period of whichever of the following periods is the first to expire: (a) the 3 year post discoverability limitation period, which is the period of 3 years running from and including the date on which the cause of action is discoverable by the plaintiff, (b) the 12 year long-stop limitation period, which is the period of 12 years running from the time of the act or omission alleged to have resulted in the injury or death with which the claim is concerned. Note. The 12 year long-stop limitation period can be extended by a court under Division 4 of Part 3. (2) For the purposes of the application of the 3 year post discoverability limitation period to a survivor action, the cause of action is taken to be discoverable by the plaintiff at whichever is the earliest of the following times: (a) the date on which the cause of action is discoverable by the deceased if the cause of action is discoverable by the deceased more than 3 years before the death of the deceased, (b) the appointment of the plaintiff as the deceased's personal representative if the cause of action is discoverable by the plaintiff at or before the time of that appointment, (c) the date on which the cause of action is discoverable by the plaintiff if the cause of action is discoverable by the plaintiff after the appointment of the plaintiff as the deceased's personal representative. (3) For the purposes of a compensation to relatives action, the 12 year long-stop limitation period runs from the death of the deceased. 50D Date cause of action is discoverable (1) For the purposes of this Division, a cause of action is discoverable by a person on the first date that the person knows or ought to know of each of the following facts: (a) the fact that the injury or death concerned has occurred, (b) the fact that the injury or death was caused by the fault of the defendant, (c) in the case of injury, the fact that the injury was sufficiently serious to justify the bringing of an action on the cause of action. (2) A person ought to know of a fact at a particular time if the fact would have been ascertained by the person had the person taken all reasonable steps before that time to ascertain the fact. (3) In determining what a person knows or ought to have known, a court may have regard to the conduct and statements, oral or in writing, of the person. (4) To remove doubt, a compensation to relatives action is not discoverable before the date of death of the deceased."

24 Section 50A(1) provides that these provisions apply 'to a cause of action for damages that relate to the death of or personal injury to a person, regardless of whether the claim for the damages is brought in tort, in contract, under statute or otherwise'. 25 Determination of the claims made in the plaintiff's motion in relation to breach of the Limitation Act must be reserved until Mr Kuzmanovic's case has been repleaded.

Costs 26 While Mr Kuzmanovic should be given the leave which he sought, the circumstances require that he should bear the defendants' costs of the motions, necessitated as it was by Mr Kuzmanovic's continuing failure to put his pleadings on a proper footing. 27 The usual order under the Rules is that costs follow the event. Mr Kuzmanovic opposed the order sought against him, submitting that he was impecunious as the result of his defence of the charge which lies at the heart of the matters about which he complains in these proceedings. 28 The costs order will not require any payment to be made until the proceedings have been finally determined. Impecuniosity is not of itself a reason for ordering a departure from the usual costs order. That ordinarily requires proof of some misconduct in the proceedings as discussed in Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72, or given other circumstances which would warrant justly such a departure. That is not apparent here, nor is there is even any evidence upon which it might be concluded that Mr Kuzmanovic is impecunious as he claims. 29 In the circumstances, I am satisfied that the order sought must be made.

2. Paragraphs [4] and [5] of the amended statement of claim and the particulars of negligence and disability are struck out.

3. Leave to file the further amended statement of claim is refused.

4. Mr Kuzmanovic is given further leave to amend his pleadings, such pleadings are to be filed and served within 28 days of this judgment.

5. The defendants are given leave to further press their motion in relation to breach of the Limitation Act 1969, after service of the new pleadings, upon the giving of 7 days notice. **********

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