PRACTICE & PROCEDURE - leave to proceed granted pursuant to s 4 to s 5 of the Felons (Civil Proceedings) Act 1981 (NSW)
order for supply of particulars pursuant to UCRP r 15.10
order for witness statements pursuant to UCRP r 31.4
Source
Original judgment source is linked above.
Catchwords
PRACTICE & PROCEDURE - leave to proceed granted pursuant to s 4 to s 5 of the Felons (Civil Proceedings) Act 1981 (NSW)order for supply of particulars pursuant to UCRP r 15.10order for witness statements pursuant to UCRP r 31.4
Judgment (2 paragraphs)
[1]
Judgment
This is an application made by the plaintiff, Matthew John Leonard, pursuant to s 4 and s 5 of the Felons (Civil Proceedings) Act 1981 (NSW), seeking a grant of leave, nunc pro tunc, to institute proceedings already filed on 8 May 2020. The defendant neither consents to nor opposes that application.
The plaintiff also seeks an additional order pursuant to UCPR r 15.10 that the defendant provide answers to further and better particulars requested of its defence which was filed on 1 September 2020. The defendant opposes that aspect of the plaintiff's application.
The plaintiff's underlying cause of action is a claim for damages for alleged assault and battery committed by police officers on 9 May 2017 at Coffs Harbour police station at a time when he was considered to be a vulnerable indigenous person in custody. The State of New South Wales has been sued pursuant to s 6 of the Law Reform (Vicarious Liability) Act 1983 (NSW) for vicarious liability in respect of the actions of the police officers in question. There is an issue as to the identity of some of the police officers in question.
Since 12 January 2019, the plaintiff has been serving a term of imprisonment following his conviction for an offence against s 37 (1) of the Crimes Act 1900 (NSW). Consequently, he must be taken to have filed the present proceedings irregularly because he did not have leave to do so and he needs such leave in order to continue the proceedings: s 4 to s 5 of the Felons Act.
The plaintiff must establish an arguable prima facie case that is not an abuse of process and is not hopeless in order to satisfy the relatively undemanding gateway test for a grant of the leave that he now seeks: Ford v Simes [2009] NSWCA 351, at [30]-[31].
In support of his application for leave, and to support his claim of enforcement of the supply of particulars in relation to the defendant's defence, the plaintiff relied upon an affidavit affirmed on 8 October 2020 by his solicitor, Mr Deo Indevar.
The plaintiff also relied upon documentary evidence comprising correspondence exhibited to the affidavit of the defendant's solicitor sworn on 8 October 2020. Whilst that affidavit was not read by the defendant, the plaintiff relied upon Annexures "B", "D", "F" and "G" to that affidavit.
On the threshold question of leave to proceed, I have reviewed the facts as pleaded in the statement of claim, and I have reviewed the affidavit of the plaintiff's solicitor. I am satisfied that the facts as pleaded raise an arguable prima facie case which satisfies the requirements for a grant of leave for the plaintiff's claim to proceed to a hearing. The defendant's solicitor has made no submission to the contrary. I therefore propose to make an order granting the leave sought by the plaintiff.
The remaining matter at issue in this application concerns the claim for the enforcement of the request for the provision of particulars of the filed defence. Essentially this concerns the identities and the actions of the police officers who were involved in the incident of which the plaintiff complains.
I observe the form of some of the questions asked as particulars seem to be in the nature of interrogatories. Be that as it may, the defendant resists the plaintiff's quest for the names of the as yet unidentified police officers who had physical contact with the plaintiff in the underlying events.
Whilst the defendant accepts that evidence of the state of mind of those officers is a matter that is relevant to how they discharged their statutory duties during the time the plaintiff was in their care and custody, the defendant maintains that their identities are not relevant.
Except for "No" proffered in answer to question 3 of the particulars, which asked whether the plaintiff was unconscious whilst he was being moved from his cell at the police station at the relevant time, the remaining responses provided by the defendant were essentially unrevealing. They did not serve to illuminate the facts which based the defence, nor do they serve to eliminate surprise, nor did they give fair notice of the opposing case, or delineate the scope of the evidence in the dispute: Sims v Wran [1984] 1 NSWLR 317, at pp 321-322.
Furthermore, the unilluminated state of those answers does not sit well with the obligation upon a model litigant to comply with the requirements of s 56 of the Civil Procedure Act 2005 (NSW) to assist with the facilitation of the resolution of the true issues in dispute in a just, quick and cheap manner.
Ambush and surprise are to be eschewed in modern litigation as those approaches have the effect of procedurally disadvantaging the opposing party. Such notions should no longer be countenanced: Nowlan v Marson Transport Pty Ltd (2001) NSWLR 116; [2001] NSWCA 346, at [26], [28]; White v Overland [2001] FCA 1333, at [4];
The defendant's answers to the plaintiff's request for particulars are largely uninformative on that issue. The defendant relied upon what was said in Li v Herald & Weekly Times Ltd (2005) 13 VR 11, at [40], to assert that the names of prospective witnesses are not relevant to the plaintiff in order to be able to meet the pleaded defence.
In my view, that case is distinguishable, not only because the cited remarks were made in the context of defamation proceedings, but also because they are at odds with the principles of open justice, particularly in this case where the police officers in question were said to be performing a statutory function. There is no room for obfuscation or ambush on such matters.
I accept the submission made on behalf of the plaintiff, in reliance of what was said in Zaravinos v State of NSW [2004] NSWCA 320, at [12], namely that where the burden of proof of showing justifying circumstances lay on the defendant, the element of surprise should be avoided on such issues. The names of the police officers are facts relevant to facts in issue and there is no justification for withholding those names as to do so would tend to cause surprise, prejudice, and facilitate undesirable ambush at a trial.
During the course of the hearing of the plaintiff's notice of motion, considerations arose concerning appropriate case management orders. The parties were asked to indicate whether there was any sound reason for not making an order that the evidence in chief of witnesses on matters of fact upon which the respective parties carried the onus of proof should be in the form of either sworn affidavits or verified evidentiary statements served in advance of the hearing: UCPR r 31.4.
No sound reasoning was identified by the parties to contraindicate the course proposed. I will therefore make an order for sworn witness statements to be served in advance of the trial.
Similarly, the parties were also asked to indicate whether there was any sound reason why an order should not be made pursuant to s 26 of the Civil Procedure Act requiring the parties to seek to resolve the dispute by convening a mediation at an early stage in the interests of saving costs and time. No sound reason was identified as contraindicating that proposed course. I will therefore make an order to that effect.
I consider that the proposed case management orders for witness statements and for a mediation are warranted in this case as experience shows that cases of this kind, involve a disproportionate amount of court time and costs when compared to other categories of damages claims framed in tort.
I therefore make the following orders:
1. Pursuant to s 4 and s 5 of the Felons (Civil Proceedings) Act 1981 (NSW), leave is granted to the plaintiff, nunc pro tunc, to institute these proceedings which have already filed on 8 May 2020;
2. Pursuant to UCPR r 15.10, within 28 days of today's date the defendant is to supply further and better particulars to the request made by the plaintiff's solicitor by letter dated 14 September 2020;
3. Pursuant to UCPR r 31.4, within 90 days of today's date, each party is to serve upon the opposing party sworn witness statements of the oral evidence in chief of identified witnesses on any questions of fact to be decided at the hearing where the respective parties carry the onus of proof on particular factual matters;
4. Pursuant to s 26 of the Civil Procedure Act 2005 (NSW), within 60 days of the defendant serving its witness statements in compliance with order (3) above, the parties are required to convene a mediation with a mutually agreed mediator to seek to resolve these proceedings by alternative means to litigation before listing the matter for hearing;
5. In the event that the parties are unable to agree on the appointment of a mediator, on the application of a party, the Court will appoint a mediator;
6. The defendant is to pay the plaintiff's costs of the motion filed on 8 October 2020;
7. Exhibit "1" is to remain with the Court file;
8. Liberty to apply if further or other orders are required.
[2]
Amendments
17 December 2020 - Pursuant to slip rule amendment, UCPR r 36.17: Paragraph [12], the word "conscious" is replaced with "unconscious"
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Decision last updated: 17 December 2020