Rivera v State of New South Wales and Anor

Supreme Court of NSW|2012-11-05|Before: Johnson J, Hall J

Judgment 1JOHNSON J: Before the Court is an application by the State of New South Wales and Kamal Uddin Ahmed for relief in various forms with respect to proceedings commenced against them by Lawrence Rivera. 2In 2006 Mr Rivera, the Plaintiff, commenced proceedings by Statement of Claim against the Commonwealth of Australia (the First Defendant), the State of New South Wales (the Second Defendant) and Kamal Uddin Ahmed, a correctional officer (the Third Defendant). Since then, the Commonwealth of Australia has been removed as a party to the proceedings. 3The Second and Third Defendants are the active Defendants to these proceedings. They have, by Notice of Motion filed on 6 June 2012, sought orders of various types, which would have the effect of bringing to an end the proceedings brought against them by the Plaintiff. 4Mr Woods, of counsel, appears for the Second and Third Defendants at the hearing of the Notice of Motion. There has been no appearance for the Plaintiff.

Notification to the Plaintiff of the Present Application 5Since January 2008, the Plaintiff has been detained in a correctional facility in the State of California in the United States of America. I will return to that feature in dealing with the claims for relief brought in the Notice of Motion. 6An obvious and direct consequence of his custodial status in a foreign country is that he is not in a position to attend in person at this hearing. 7The Notice of Motion brought by the Second and Third Defendants has been before the Court on a number of occasions. On 18 September 2012, the motion came before Hall J. On that occasion, Mr Gunning, of counsel, appeared in the interests of the Plaintiff. Mr Woods appeared for the Second and Third Defendants. Mr Gunning informed the Court that he had accepted a referral under the pro bono scheme to provide advice to the Plaintiff, and that he had done so. Mr Gunning did not have instructions to appear at the hearing of this Notice of Motion. 8Hall J made orders fixing the hearing of the Notice of Motion for today. An order was made requiring express courier mail service upon the Plaintiff of the material to be relied upon by the Second and Third Defendants at the hearing of the motion, together with notice that the matter was listed today. 9Before the Court is an affidavit of service of Marisa Wright Smith sworn 17 October 2012. That affidavit establishes that the orders of Hall J have been complied with, and that the Plaintiff was informed of the hearing date today, and was served with the affidavits and annexures upon which the Second and Third Defendants have sought to rely. 10The evidence establishes that the Plaintiff was provided with this material no later than 6 October 2012 (Exhibit B). Accordingly, the Plaintiff has had, effectively, a month's notice that this application was to proceed to hearing today, and he has had the evidence upon which the moving parties intended to rely. 11There has been no communication from the Plaintiff to the Crown Solicitor's Office, nor to the Court. The evidence reveals that the Plaintiff has, from time to time, written to the Crown Solicitor's Office or to the Registrar at the Court, in circumstances where he wished to communicate concerning the litigation. There has been no communication from the Plaintiff, in circumstances where he has been served with the material relevant to this hearing. 12Further, Mr Gunning, of counsel, was contacted by my Associate last Friday to ascertain whether he would be involved in today's hearing. He confirmed by email that he had provided pro bono assistance to the Plaintiff, and had specifically given advice to him in December 2011 concerning the claim generally, but that he had not received any instructions from the Plaintiff to appear at the hearing today. In those circumstances, Mr Gunning stated that he did not intend to appear (Exhibit A). 13Having regard to this evidence, I was entirely satisfied that the orders of Hall J had been complied with and that the Plaintiff was on notice of today's hearing and, accordingly, that the hearing ought proceed. 14Mr Woods read a number of affidavits at the hearing of the Notice of Motion. They provide a history of this litigation and constitute the evidentiary foundation for the applications brought by the Second and Third Defendants.

A Background Chronology 15It is appropriate to provide a short chronology, to place the present applications in context. 16The Plaintiff is a citizen of the United States of America. 17In May 2002, a warrant issued for his arrest out of the Superior Court of California alleging the murder by him of Kristina Garcia, who had been missing since 15 May 2002. Her body was located on 23 May 2002. The Plaintiff departed the United States of America for Sydney via Amsterdam, arriving in Sydney on 22 May 2002. He held a three-month visitor's visa, which expired in August 2002. 18The Plaintiff was arrested on 19 September 2002, pursuant to the warrant for his arrest on the charge of murder of Ms Garcia. 19I have drawn those facts from the judgment of Sperling J on a bail application on 29 January 2003: R v Rivera [2003] NSWSC 6 at [2]. 20Accordingly, the Plaintiff was held in the New South Wales correctional system pursuant to the warrant. 21A series of Court proceedings were brought by, or against, the Plaintiff in relation to the question of whether he should be returned to the United States of America. 22A Magistrate made an order for his return under the Extradition Act 1988 (Cth). The Plaintiff sought a review of that order which was dismissed by Bell J, then a Judge of this Court, on 28 November 2003: Rivera v United States of America [2003] NSWSC 1180. 23The Plaintiff appealed against the decision of Bell J. The appeal proceeded before the Full Bench of the Federal Court of Australia. That appeal was dismissed on 16 June 2004: Rivera v United States of America [2004] FCAFC 154. 24The Plaintiff remained in Australia whilst there were, it would seem, further applications made to challenge the order for his return to the United States of America until January 2008, when he was extradited to the State of California to face trial for murder. As I have said, he has been in custody in California since then. 25The evidence before the Court on this application indicates that the Plaintiff was convicted of murder in early 2011 and was sentenced in March 2011. The evidence indicates that the Plaintiff has been sentenced to a term of imprisonment described as 25 years to life imprisonment. 26In his communications to the Crown Solicitor's Office or the Court since March 2011, the Plaintiff has not indicated that his status in California is other than as a person serving a very lengthy period of imprisonment.

The Proceedings Brought by the Plaintiff 27It appears that a Statement of Claim was filed initially by the Plaintiff on 10 October 2006, in which the three Defendants (whom I have already mentioned) were sued. 28That Statement of Claim appears to have been overtaken by a further Statement of Claim filed on 2 April 2007, in which the same three Defendants were sued, with a lengthier exposition of the claims then brought against those parties. 29I pause to observe that the Plaintiff's claim relates to a period in 2002, when he was held in custody in the New South Wales correctional system pursuant to the extradition warrant. The claim appears to allege assaults by correctional officers, searches of him by correctional officers about which he complains, abuse directed to him, and the suggestion that publications were made of false material about him. 30On 22 August 2007, Patten AJ granted leave to the Plaintiff to file and serve an Amended Statement of Claim by 24 August 2007. No Amended Statement of Claim was filed by that date. 31On 17 September 2007, Registrar Bradford granted leave to the Plaintiff to file and serve an Amended Statement of Claim by 8 October 2007. No Amended Statement of Claim was filed by that date. 32On 6 November 2007, an Amended Statement of Claim was accepted in the Registry, and was stamped as if it had been filed. I will return to this aspect a little later, when considering one of the claims for relief in the Notice of Motion. 33The Amended Statement of Claim is an expanded proposed pleading, in which no fewer than 10 additional correctional officers are identified as proposed Defendants. There is also an expanded array of allegations and what purport to be pleaded claims for, amongst other things, assault, negligence and misfeasance in public office. I do not pause at this stage to consider the suggested deficiencies in this pleading. I will return to that later in this judgment. 34Even before the Amended Statement of Claim was accepted in the Registry, the solicitors for the Second and Third Defendants had sought further and better particulars of the Plaintiff's claim. By letter dated 16 August 2007, particulars were sought and that letter was received by the Plaintiff that day. That request for particulars has never been answered. 35To the extent that it could be said that the Amended Statement of Claim accepted in the Registry on 6 November 2007 in some way provided a type of oblique reply to the request for particulars, I do not consider that such a construction is available. The Second and Third Defendants were entitled to a response to the request for particulars made on 16 August 2007, and they have never received one. The later pleading does not, in my view, overtake that request for particulars. 36The evidence reveals that, in 2007, the Plaintiff was the beneficiary of assistance under the pro bono referral scheme in this State. 37He received pro bono advice from counsel, including senior counsel. I observe in passing, that the Plaintiff had the benefit of pro bono assistance in other litigation at earlier times. By way of example, Sperling J referred to the Plaintiff having pro bono assistance on the bail application determined by his Honour on 29 January 2003: R v Rivera [2003] NSWSC 6 at [8]. The Full Federal Court adverted to the Plaintiff having pro bono assistance in 2004 with respect to proceedings before that Court: Rivera v United States of America [2004] FCAFC 154 at [7]. 38I mention these things because it is apparent that the Plaintiff, by 2007, had demonstrated both a considerable capacity to initiate litigation himself and to take steps in his own interest, but also to utilise pro bono assistance for different purposes. It is clear that the Plaintiff is not a litigant who is unable to take steps in his own interest, whether directly or by seeking to utilise the discretionary availability of pro bono legal assistance. 39In January 2008, as I have said, the Plaintiff was extradited to the United States of America, where he has remained. 40It is fair to say that, in the significant period between then and now, there has been no real progress in this litigation on the part of the Plaintiff. No medical evidence has ever been served. 41It might be thought (understandably) that the focus of the Plaintiff's attention was the serious criminal charge brought against him in the United States of America. It remains the fact, however, that these proceedings have been on foot. If he intended to progress them, there was an expectation that he do so, by either retaining a legal practitioner to act on his behalf or to take other steps to achieve that result. 42I have mentioned that the Plaintiff utilised the pro bono referral scheme in these proceedings, with Mr Gunning assisting recently in that respect. Mr Gunning provided advice to the Plaintiff in December 2011, and he has not been requested to appear at the hearing today. 43In correspondence from the Plaintiff, there have been occasional references to the fact that he has utilised the pro bono referral scheme, with the suggestion that he might seek to utilise it again in the future. 44The pro bono referral scheme, in Rule 7.33-7.44 Uniform Civil Procedure Rules 2005 ("UCPR"), is a most valuable commodity. As Rule 7.33(3) makes clear, it is not a substitute for legal aid. It is a scheme which allows the Court, on a case-by-case basis, to consider whether a referral should be made for a particular purpose, with members of the legal profession being prepared to volunteer their time to assist litigants who satisfy the criteria under the Rules for such a referral. 45Clearly, the Plaintiff has been a significant beneficiary of this scheme over a number of years. He cannot approach this litigation upon the basis that the pro bono scheme is, effectively, a resource available to be tapped by him when he wishes it. The Court will certainly not approach the matter on that basis. 46In any event, as I have said, the Plaintiff has not sought a pro bono referral for the purpose of today's hearing. 47In summary, the Plaintiff is in custody for a very long time, unless his conviction is overturned on appeal in the United States of America. The Plaintiff has not asserted that he has an appeal pending. He is a convicted prisoner in another country. He has no retained lawyer in this country. He has used the pro bono scheme in the past, but there is no current referral. 48The realistic position is that this litigation is not going to move forward in any meaningful way. In his correspondence with the Crown Solicitor's Office, the Plaintiff has not indicated a capacity to progress the matter to hearing, to obtain representation and to discharge his duties as a litigant under the Civil Procedure Act 2005. Some of his correspondence has involved an apparent offer to settle the matter. 49The concern of the Court is whether the Plaintiff intends to prosecute this matter, and whether, in any case, there is any realistic way in which that is going to happen.

Claims for Relief in the Notice of Motion 50What I have said so far sets the scene for the claims of relief in the Notice of Motion. 51The Notice of Motion seeks an order that the Court refuse to accept the Amended Statement of Claim, received in the Registry on 6 November 2007, pursuant to Rule 4.10 UCPR. The next and principal claim for relief by the Second and Third Defendants is that the proceedings be struck out or dismissed pursuant to Rule 12.7 UCPR for want of prosecution. 52There are other prayers for relief contained in the Notice of Motion, including a claim that the proceedings be struck out or dismissed pursuant to Rule 13.4 UCPR and, alternatively, a claim that the proceedings be struck out or dismissed under Rule 14.28 UCPR on the ground that they fail to plead a valid cause of action. 53In addition, there is a claim that the proceedings be struck out or dismissed on the ground that the Plaintiff does not meet the requirements of Part 2A Civil Liability Act 2002. 54Finally, and in the alternative, there is a claim that, if the proceedings are allowed to proceed, the Plaintiff give security as to costs. 55The primary orders sought by the Second and Third Defendants are orders under Rules 4.10 and 12.7 UCPR. Submissions made in support of the other parts of the Notice of Motion are relied upon in support of the principal claims for relief.

Application Under Rule 4.10 UCPR 56The Plaintiff was given leave to file an Amended Statement of Claim by 8 October 2007. This was not done. He had the benefit of an earlier grant of leave to file and serve an Amended Statement of Claim by 24 August 2007, a date also not met. 57Rule 4.10 UCPR allows a process whereby documents may be received in the Registry and stamped, but with the Court being able, thereafter, to refuse to accept the document for filing. The operation of Rule 4.10 was considered in a somewhat different context in Bendigo & Adelaide Bank Limited v Chowdhury [2012] NSWSC 592, where a Defence was accepted and stamped in the Registry, although it failed literally and completely to disclose a pleaded Defence. 58The present context is different. The document received in the Registry, the Amended Statement of Claim, pleaded causes of action, albeit in ways that attract considerable criticism. The application is that the Court ought make an order under Rule 4.10(4) UCPR refusing to accept the Amended Statement of Claim. 59In my view, this Rule applies to a situation such as this. It is the frequent practice of Judges and Registrars to grant parties leave to file and serve an amended pleading by a nominated date. The effect of that order is to grant an indulgence to the relevant party to do something by that date. If it is done by that date, then there is no additional hurdle - the amended pleading has been filed. Where, however, a party does not file the amended pleading by the nominated date, that party creates a further difficulty for him or herself. 60Orders of the Court granting parties leave to file and serve amended pleadings by nominated dates are not mere formalities. Such orders are made in the expectation that they will be complied with. If there is said to be a problem with compliance by the nominated date, then the relevant party should seek to activate any grant of liberty to apply for an extension of time from the Court. 61If the document is accepted in the Registry, despite the fact that it has been lodged out of time, apparently the document will be stamped in the way that the Amended Statement of Claim was here. This reflects the flexible Registry practice where (apparently) there is no check as to whether an amended pleading is being filed within the time allowed by a Judge or Registrar. That appears to be what has happened in this case. The fact that the document has been stamped, as if it had been filed, does not advance the Plaintiff's position. 62If, as here, the other parties to the litigation apply to the Court to refuse to accept the document for filing (despite the fact that it has been accepted physically in the Registry), then that course is open under Rule 4.10 UCPR. 63On an application such as this, the Court should approach the non-compliance upon the basis that it ought not be automatically excused, and that there ought be a proper reason to allow the pleading to be filed outside the time allowed by the Court. 64The starting point is that the Plaintiff has no entitlement that the Court will treat the Amended Statement of Claim as if it was filed on 6 November 2007. 65The Amended Statement of Claim itself is, in my view, a problematic document. It has, at the least, unsatisfactory features in the manner in which it pleads misfeasance in public office. There is a lack of clarity in both pleadings and particulars. If the Amended Statement of Claim had been filed within time, it would have been susceptible to strike out on pleading grounds under Rule 14.28 UCPR. 66In my view, the Amended Statement of Claim is so problematic in content that I would not grant leave for it to be filed in its present form if such an application was made by the Plaintiff. 67Where does that leave the present application under Rule 4.10 UCPR? In my view, the appropriate course is to make an order under Rule 4.10, refusing to accept the Amended Statement of Claim for filing. There are a number of reasons for this. I have already mentioned deficiencies on the face of the document. There is, in addition, the fact that no fewer than 10 individual proposed Defendants are identified, and they have never been served with this document. 68A party who wishes to sue individuals is required to serve process upon those persons. As a matter of practice, once served, State employees (such as correctional officers) will make application for Crown representation. However, these 10 persons have not been served, and this is despite the fact that a further five years have passed since the document was received in the Registry. 69In my view, the broad discretion which resides in Rule 4.10 UCPR for a Judge to refuse to accept a document for filing, ought be exercised in this case. I will make that order in due course. 70That step will not dispose of the proceedings. The Plaintiff did commence proceedings, which have been on foot since October 2006 or, at least, April 2007. Those proceedings have, as active Defendants, the Second and Third Defendants.

Application Under Rule 12.7 UCPR 71I turn now to the application under Rule 12.7, to strike out or dismiss the proceedings for want of prosecution. 72I have already identified the protracted history of this litigation. It is submitted by Mr Woods that the claim, on its face, is a complex one. Although the basic allegations appear to involve different forms of assault by correctional officers a decade ago, the proceedings seek to engage causes of action against the State of New South Wales, extending beyond what could be considered straightforward claims of assault. 73Submissions were made concerning other deficiencies in the litigation, which are relevant, as well, to the claim for relief of under Rule 12.7 UCPR. The Plaintiff has never served any medical evidence. 74The Court is entitled to look at want of prosecution in the past, and also the likely prospect of prosecution in the future, as well as the nature of the causes of action. This goes to the question of prejudice, both to the Plaintiff and to the Second and Third Defendants, if an order under Rule 12.7 is made (or not made). 75Mr Woods submits that the proceedings have a fundamental limitation problem, with s.50C Limitation Act 1969 having application. There is force in that submission. This is a factor to be borne in mind in looking at what course should be taken with respect to these proceedings. This limitation issue arises in the context of litigation where the Plaintiff has taken no step for some five years. 76Further, the Plaintiff was detained in a correctional centre in New South Wales, within the meaning of the Crimes (Administration of Sentences) Act 1999, whilst he was held under a warrant issued for the purpose of the Extradition Act 1988 (Cth). In these circumstances, Part 2A Civil Liability Act 2002 applies to this claim. Section 26B Civil Liability Act 2002 provides that Part 2A applies to an award of personal injury damages against a protected defendant, in respect of injury to a person received while the person was in custody at the time, being an injury caused by the negligence of the protected defendant. There is, as I have said, a claim in negligence included amongst the various claims which have been advanced. 77By operation of the relevant provisions of the Civil Liability Act 2002, there could be no award of damages unless the Plaintiff established that he has suffered permanent impairment of at least 15 percent. There has been no attempt by the Plaintiff to satisfy this requirement. Indeed, he has served no medical evidence at all. 78In evidence before the Court is a report of Dr Kim Edwards, surgeon, dated 10 October 2007. Dr Edwards examined the Plaintiff on behalf of the State of New South Wales. His report refers to various complaints by the Plaintiff and concludes, after application of the WorkCover Guides for the Evaluation of Permanent Impairment, that the Plaintiff does not suffer any permanent impairment of his thoracic or lumbar spines, and there is no whole person impairment. 79Accordingly, the only medical evidence before the Court is unhelpful to the Plaintiff on this aspect. 80The Plaintiff has not prosecuted these proceedings since 2007. The events which are the subject of his claim are now 10 years' old. There is no indication from the Plaintiff that he proposes to instruct legal practitioners to appear for him to remedy his long outstanding defaults, or to prosecute these proceedings with due expedition in the future. 81In my view, the appropriate conclusion is that there is no realistic prospect of any steps being taken by the Plaintiff to either overcome past deficiencies or to prosecute the proceedings with due dispatch. 82Section 56 Civil Procedure Act 2005 places a statutory obligation on litigants to take steps to facilitate the just, quick and cheap resolution of proceedings. That obligation binds the Plaintiff. In my view, the history which I have recited reveals that, for a very lengthy period of time, the Plaintiff has failed to comply with that obligation. There is no realistic prospect that, if the proceedings remain on foot, he will comply with that obligation. 83The provisions of ss.56 to 61 Civil Procedure Act 2005 require the Court to have regard, amongst other things, to the timely disposal of proceedings, and all other proceedings in the Court, at a cost affordable to the respective parties, and to have regard to the efficient use of available administrative and judicial resources and the efficient disposal of the business of the Court. The Court must have regard to the dictates of justice, but all of those matters are related to the function of the Court and the obligation of litigants to progress litigation. 84It has been said that an order dismissing proceedings for want of prosecution is an exceptional order, and is a power not to be lightly exercised: Fairey v Fairey (No 2) [2000] NSWCA 173 at [51]-[58]. 85The provisions of the Civil Procedure Act 2005, to which I have referred, represent the statutory setting in which a decision of this type must now be made: Fleet v State of New South Wales [2009] NSWSC 75 at [12]-[15]. In that decision, I observed that the Courts should not stand by and permit endless opportunities to a litigant, where reasonable and fair opportunities have been provided in the past to progress the litigation. 86In addition, in the present case, there is a firm foundation for the view that, if the proceedings remain on foot, they will wallow inactively to the cost of the Second and Third Defendants, and with the consequence that further curial resources will be absorbed as a result. 87I am entirely satisfied, in the circumstances of this case, that there is a proper foundation for the exceptional order which is sought under Rule 12.7 UCPR. In my view, the appropriate order is one dismissing the proceedings. An order striking out the proceedings leaves open, at least as a theoretical possibility, the prospect that in some way the proceedings could be revived. I do not think that is appropriate in the circumstances of this case. 88In reaching this conclusion, I have had regard, as well, to the pleading deficiencies and to the provisions of Part 2A Civil Liability Act 2002. 89In addition, there are more than reasonable arguments to be advanced in support of the claim for relief under Rule 13.4 UCPR if that point had been reached. 90It is not necessary to consider further whether the specific forms of relief as sought in Orders 2, 4 and 5 of the Notice of Motion should be made. Nor is it necessary, given the view which I have reached, to consider the claims for relief in paragraphs 6 and 7 of the Notice of Motion by way of security for costs. 91The effect of the orders which I will make will be to bring the proceedings to an end for the reasons expressed in this judgment.

Orders 92I make the following orders: (a)Pursuant to Rule 4.10 Uniform Civil Procedure Rules 2005, the Court refuses to accept for filing the Amended Statement of Claim lodged on 6 November 2007. (b)Pursuant to Rule 12.7 Uniform Civil Procedure Rules 2005, the proceedings are dismissed. (c)I order the Plaintiff to pay the costs of the Second and Third Defendants of this application and the proceedings generally.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 12 November 2012

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