Saad v State of NSW

Factual Context 12On 27 January 1998, Mr Robert McPherson was murdered in James Street, Redfern. He was set upon by a number of males and assaulted with a range of weapons including a baseball bat, a chain, a stick and a knife. He died from the effects of his injuries. 13On 2 April 1998, three of the original plaintiffs were arrested and charged with Mr McPherson's murder. On 27 October 1998, the prosecution against two of the plaintiffs was withdrawn. On 22 February 1999, the Director of Public Prosecutions directed that there be no further proceedings against the third man arrested on 2 August 1998. 14These facts constitute the first cause of action against the State. These three plaintiffs claim that they were wrongfully arrested and then falsely imprisoned. 15On 9 August 2002, each of the plaintiffs was arrested and charged with the murder of Mr McPherson, or else with concealing a serious offence, being the murder of Mr McPherson. A number of the plaintiffs were also charged with other unrelated offences. One of the plaintiffs initially charged with the concealment offence, was later charged with murder. 16As a result of the charges of 9 August 2002, and in some cases, the other unrelated charges, the plaintiffs were detained in custody for lengthy, but differing, periods of time. 17The arrests of 9 August 2002, form the basis of the second cause of action against the State for damages for wrongful arrest and false imprisonment. 18After these arrests, and the charging of the plaintiffs, in the period from 4 November 2002 until 27 March 2003, the charges against the plaintiffs were prosecuted by way of a committal hearing before a Magistrate in the Local Court. This proceeding gives rise to a third cause of action, being one for malicious prosecution. 19Five of the original plaintiffs stood their trial, following their committal for trial, before Newman AJ in the Supreme Court between 13 October 2003 and 21 November 2003. The trial terminated early, when the jury was discharged, and did not proceed to a conclusion. A further trial was held in the Supreme Court before Sully J from 13 September 2004 to 17 November 2004. 20These two trials are relied upon as constituting maintenance of the malicious prosecution, and are relied upon as forming an essential part of the third cause of action for malicious prosecution. 21It is admitted on the pleadings that all of the prosecutions were terminated in favour of the plaintiffs, with the exception of one former plaintiff, Mr Danny Saad. 22The plaintiffs allege that in respect of each of the causes of action, a number of named police officers, did not have a sufficient and reasonable basis to arrest and charge them. They also allege that all of the prosecutors, which term is used to describe the police officers who were informants, and the officers of the DPP's office, who laid or caused to be laid the criminal indictments, acted without reasonable and probable cause. 23The defences consist of a number of factual admissions, a large number of denials of various allegations and a pleading that the provisions of the Limitation Act 1969, prevent the plaintiffs from succeeding in their actions. The defence also denies any liability at all. 24There is no dispute that if any one of the relevant police officers, or officers of the DPP's office, did proceed in a way which constituted any of the pleaded tortious causes of action, then the State, the named defendant, would be vicariously liable for their conduct and hence, it is the properly named defendant.

Some Features of the Pleadings 25It will be observed from the summary above, that the Court will now be called upon to determine more than 10 separate causes of action, although clearly, there will be a significant commonality of fact and factual issues underlying this multiplicity of causes of action. Each plaintiff has at least one cause of action, and some plaintiffs have all three. 26The current version of the Statement of Claim (which is substantially similar as between the two actions) is over 60 pages in length. This is largely because the pleader has included a lengthy pleading of particulars of facts, matter and circumstances which it is said support the necessary conclusions of: (a)in respect of the wrongful arrest and false imprisonment allegations, an absence of reasonable suspicion of the commission of the relevant crime for which the plaintiffs were arrested and charged; and (b)in respect of the malicious prosecution allegation, an absence of reasonable and probable cause for the commencement and maintenance of the prosecutions. 27These particulars, often involve allegations that particular identified police officers obtained statements from named witnesses, which allegations are combined with assertions as to what, at least in part, these statements contain. The particulars also include allegations that identified police officers failed to take steps to check the veracity of particular versions of fact given by named witnesses. 28With respect to the cause of action relating to malicious prosecution, the particulars contain assertions as to what was said in the course of the evidence, what was known to prosecutors and, in a number of cases, what was said by the presiding Judge at the trial. 29The defence to the most recent version of the Amended Statement of Claim makes it clear that the State denies that the torts alleged were committed. In respect of the arrests, confinement to custody, and the committal hearing and trials, appropriate admissions are made as to the relevant facts and dates. In addition, the defences plead the existence of other criminal charges and terms of imprisonment which were imposed on some plaintiffs which it seems is intended to demonstrate that the periods in custody of those plaintiffs, were based upon a proper justification by reason of crimes which were unassociated with the murder of Mr McPherson. 30However, the defence does not plead that any of the police officers, or officers of the DPP, either had a reasonable suspicion prior to the arrests of the plaintiffs, or else had reasonable and probable cause for the prosecution of the plaintiffs in the sense of a positive averment, supported by particulars of those states of mind. 31What has happened is that the current Statement of Claim pleads the existence of a negative state of mind, or else the absence of a positive state of mind. The defence denies the existence of that negative state of mind, and denies the absence of a positive state of mind. It does not plead or particularise a positive state of mind of any of the relevant police officers or officers of the DPP.

Application for Adjournment 32The application was made on 4 February 2014. In support of the application there was evidence of Anthony Stephen Margiotta, by way affidavit and oral evidence. 33Mr Margiotta was cross-examined by senior counsel for the State. 34The State led evidence from Ms Koch by way of an affidavit. She was not cross-examined upon the material set out therein.

Evidence of Mr Anthony Margiotta 35Mr Margiotta is the solicitor for the plaintiffs in the proceedings. He first obtained instructions in March 2005. In mid-2006, he instructed Mr David Baran, a barrister, to consider the proceedings and, if appropriate, draft a statement of claim. 36In mid 2007, counsel produced a draft statement of claim, and proceedings were commenced by Mr Margiotta in October 2007. 37In 2009, Mr Margiotta sent a brief to advise, and a brief on hearing to Mr Baran, who accepted that brief. 38Mr Baran was briefed, and accepted the brief, on a speculative fee basis. During the period from 2010 to 2012, there were a number of interlocutory applications. Mr Baran appeared in some, but not all, of those; and in others a junior counsel, Mr Eirth, who was also briefed on a speculative fee basis, appeared. 39On 8 March 2013, Mr Baran was advised of the hearing dates which the Court had allocated, namely, a seven-week hearing commencing 10 February 2014. 40On 25 October 2013, a mediation was held with respect to all of the claims of the plaintiffs. Mr Baran and Mr Eirth both attended at that mediation on behalf of the plaintiffs. The mediation was unsuccessful. 41According to the affidavit of Mr Margiotta, and it was not submitted that I ought not accept this evidence, at about 8.40pm on 28 November 2013, he had a telephone discussion with Mr Baran of counsel, during the course of which Mr Baran said to him, words to this effect "I give you my word that I will do the hearing". 42On 17 January 2014, Mr Margiotta held a conference with Mr Baran which apparently dealt with the hearing of the matter. At the conclusion of that conference, Mr Margiotta held the belief, and proceeded upon the basis, that Mr Baran was still going to appear at the hearing. 43On 20 January 2014, Mr Baran returned the brief on hearing of the proceedings to Mr Margiotta. 44It is unclear from Mr Margiotta's evidence what time that occurred, or in what manner. 45However, it is clear that as at 12.44pm on 20 January 2014, Mr Baran regarded himself as being no longer retained in the matter. I am satisfied of that fact because of an email annexed to Ms Koch's affidavit, apparently sent by Mr Baran to junior counsel for the State, which included this statement: "I am no longer retained in this matter. Please write directly to the plaintiffs' solicitors." 46At 4.07pm, in response to another email, Mr Baran sent an email from his mobile telephone to junior counsel for the State, with a copy to Mr Margiotta, which included this statement "I am not in this case Dominic". 47Apparently, on 27 January 2014, Mr Margiotta wrote a letter to Mr Baran upon the matter of the return of the brief, but the contents of the letter are not in evidence. However, the cross-examination of Mr Margiotta did establish that he made a reference to Rule 100 of the Bar Rules in that letter. 48Although Mr Margiotta has not made contact directly with Mr Eirth, he formed the view that since Mr Eirth had been "introduced" into the matter by Mr Baran, and that he was told by Mr Baran that Mr Eirth would no longer be involved in the matter, Mr Eirth was no longer briefed on the hearing. Mr Margiotta expressed the view that if Mr Eirth was to remain briefed, he would need a senior barrister to lead him at any hearing. 49Mr Margiotta also said in his evidence that after Mr Baran returned his brief, he made a very large number of enquiries with both junior and senior counsel to identify counsel who might be available to accept the brief, and be in a position to conduct the hearing on the date fixed, or perhaps to conduct a hearing if the starting date was deferred for one or two weeks. 50He said that he had approached many, many barristers and that he had also contacted barrister's clerks to identify available counsel to appear for the plaintiffs, and he had been unsuccessful in so doing. 51He said that if he made a list he would estimate that he would have contacted either directly, or else via their clerk, between 20 and 30 barristers. He said that there was no barrister with the appropriate seniority for a matter which was as complex as these proceedings, who was available during the period of time fixed by the Court. 52Mr Margiotta also noted that the Court Bundle which had been prepared by the State, and which related to all of the allegations raised in the Statement of Claim, and the responses in the Defence, extended to 28 volumes of paper. 53In addition, when cross-examined by senior counsel for the State, he agreed that the financial position of the four remaining plaintiffs was a poor one. He said that two were presently in custody, a third was on a disability pension, and the fourth, although presently working, was earning apparently relatively modest wages. He agreed that none of the four remaining plaintiffs was in a position to fund him to retain counsel. 54Accordingly, in his searches for counsel to appear, he had been seeking their availability on the basis that counsel would accept the brief on the basis of a speculative fee agreement. 55Although submissions were made about a number of aspects of Mr Margiotta's evidence, no one submitted to me that I should not accept that evidence. Accordingly, I have done so for the purpose of determining the application. 56It is apparent that he and Mr Baran are in disagreement about certain facts, matters and circumstances. By saying that I accept Mr Margiotta's account for the purpose of this judgment, I should note that I am specifically not making any determination as to whether or not, if it was a contested account, and there was contrary evidence, I would necessarily accept his evidence. It is simply the fact that on these matters, Mr Margiotta's evidence was the only evidence before the Court, there was no direct challenge to it, and it was not submitted that I ought not accept it. In those circumstances, it is appropriate to accept it: Hamod v State of NSW (No.12) [2009] NSWSC 242 at [176] per Harrison J. 57The cross-examination of Mr Margiotta also revealed that he could have, but did not, make an application to vacate the hearing date, perhaps as much as a week earlier. Instead, he seems to have used the time to attempt to retain counsel.

The Evidence of Ms Koch 58Ms Koch's affidavit usefully encapsulated the very long and complex history of the interlocutory proceedings in the matter. 59There is no doubt that, in that interlocutory history, there have been many occasions in which the plaintiffs have been in default of orders made to enable the proper, timely and efficient preparation of the matter. As well as those defaults, there have been many occasions upon which the parties have debated, and been at issue about what the proper and appropriate interlocutory steps should be. 60Of particular importance were two dates. The first was 8 March 2013, when the Court listed both proceedings for a hearing to commence on 10 February 2014. In other words, there was a period of about 11 months lead up time to the hearing. 61The second date which was of relevance, was that on 29 November 2013, at a directions hearing, the Common Law Registrar was informed that the proceedings were ready for a hearing, and as a consequence, he confirmed the listed dates for the hearing. 62Ms Koch's evidence established that since the hearing date was allocated on 8 March 2013, the defendant had incurred approximately $149,500 in professional fees, and approximately $100,000 in disbursements. She said that those costs and disbursements had been incurred predominantly in the preparation of witness statements, the preparation and copying of the agreed Bundle of Documents for hearing, and subsequent hearing preparations. 63The costs of the preparation, collation and copying of the agreed Bundle totalled $39,000, of which approximately $11,000 was for disbursements. 64She deposed to the fact that in addition to counsel who had been involved quite intensively preparing for the hearing, including conferring with witnesses, that the costs and expenses of preparing for the hearing itself had involved about $42,000 in professional fees, and about $43,500 in disbursements. 65Ms Koch also deposed to the fact that there had been an exchange of both email correspondence and telephone conversations with Mr Margiotta, and between junior counsel for the State and Mr Baran, which led to her ultimately being informed on 22 January 2014 by Mr Margiotta that Mr Baran had returned the brief. I have referred to the relevant parts of that exchange earlier. 66I accept Ms Koch's evidence.

Plaintiffs' Submissions 67Counsel for the plaintiffs submitted that the Court ought adjourn the proceedings and vacate the hearing date because: (a)the proceedings were complex, and required counsel of appropriate seniority, if not two counsel, to present the case for the plaintiffs and to argue it in a way which gave the Court the appropriate level of assistance; (b)the case was also a particularly complex and detailed one for the purposes of preparation for hearing and, accordingly, the Court could not rationally expect that at any time after 20 January 2014, the solicitor for the plaintiffs could have found a counsel of appropriate seniority, with sufficient time for that counsel to be adequately prepared to present the case, commencing on 10 February 2014; (c)for whatever reason, and none was revealed in the evidence, Mr Baran had returned his brief with effect from 20 January 2014, and had firmly indicated that he was not prepared to appear at the hearing of the matter. It was noted that Mr Baran was a counsel who had been briefed for many years in the matter, and would have been in a position to present the case for the plaintiffs at the appropriate time; (d)that although no reason was disclosed by the evidence as to why Mr Baran had returned his brief, and therefore it could not be determined whether that return was with or without justification, the fact was that the plaintiffs individually had not been personally responsible for any circumstance which could have given rise to Mr Baran returning his brief; and (e)the interests of justice favoured making an order to adjourn the proceedings and vacate the hearing dates.

Submissions for the Defendant 68Senior counsel for the State, Mr Temby QC, submitted that in the absence of more full evidence as to the circumstances surrounding Mr Baran returning his brief, the Court could not come to any conclusion as to whether the responsibility for the return of the brief fell at the feet of Mr Baran, Mr Margiotta or for some other reason. 69He next submitted that the delay in any proceedings being relisted and reheard would be likely to be quite extensive. It is clear from the Court's listing perspective, that a case which required a six-week hearing would be unlikely to get a further hearing date until the very end of 2014, if not the start of 2015. 70Mr Temby QC pointed to the length of time which had passed since the events sued upon had taken place, the length of time which had passed since the plaintiff first commenced proceedings in 2007, and noted that much of the delay which had occurred since 2007 was due to the failure of the plaintiffs to comply with reasonable and proper case management directions. He also pointed to the fact, and noted, that the proceedings had been fixed for hearing for almost a year, and that the Court was being asked to consider the adjournment application the week before the final hearing was due to commence. In other words, he sought to emphasise the lateness of the application which was being made. 71He submitted that any further delay, such as that occasioned by an adjournment of the hearing of the proceedings, would be unfair to the State, and to its witnesses. He noted that the professional decisions of many of the individual witnesses had been criticised, and their motives impugned. He submitted that whilst it may be correct to note that the State was the defendant, in truth, the litigation was of concern to many of the individual witnesses who would be the subject of criticism in the course of the conduct of the proceedings. He submitted that it was appropriate, in their interests, to have the proceedings disposed of as quickly and efficiently as possible. 72He also submitted that even if the plaintiffs were forced on to a hearing, and, in the absence of counsel, the case could not be successfully prosecuted, the plaintiffs would not be left without legal rights which they could pursue against their legal representatives. 73He pointed to the fact, as is obvious from the nature of the application and the matters which I have referred to earlier, that the defendant was in no way responsible for any of the circumstances which had given rise to the application. 74He also pointed to the fact that any costs order, which would be in a significant sum, given the impecuniosity and circumstances of each of the plaintiffs, was unlikely to be met by the plaintiffs with the consequence that the defendant would be out of pocket for a significant sum of money. 75He ultimately submitted that the provisions of s 56 of the Civil Procedure Act 2005, the duties there contained which are imposed on the parties to proceedings and their legal representatives, and in particular the overriding purpose of the just, quick and cheap disposition of the real issues in the proceedings, did not favour granting the adjournment. 76As well, Mr Temby QC submitted that an adjournment of the proceedings would not be in the interests of justice.

Discernment 77Section 56 of the Civil Procedure Act requires that in civil proceedings, when the Court is exercising any power, including the power of an adjournment of the proceedings, and the vacation of hearing dates, it must seek to give effect to the overriding purpose which is to facilitate the just, quick and cheap resolution of the real issues in the proceedings. 78Section 58 of the Civil Procedure Act provides that in deciding whether to make any order granting an adjournment, the Court must seek to act in accordance with "... the dictates of justice". 79Section 58(2) of the Civil Procedure Act requires that for the purposes of determining in any particular case what the dictates of justice are, the Court is required to have regard to the provisions of s 56 of the Civil Procedure Act, and it may have regard to matters including the degree of difficulty or complexity to which the issues in the proceedings give rise; and the degree of injustice that would be suffered by the respective parties as a consequence of any order. 80If there are other matters that are relevant in the circumstances of the case, the Court is entitled to have regard to those. 81What is required here is that the Court consider, and decide whether, in its discretion, to exercise a power to adjourn the hearing. Clearly, in the circumstances of this case, a decision to vacate the hearing, if made, will to some extent, disadvantage the defendant, and if not made, will to a significant extent, disadvantage the plaintiffs. Neither party can be entirely satisfied by any order made with respect to this application. 82The Court is engaged therefore in an act where it has to have regard to all of the relevant matters, arrive at a conclusion, and make orders which so far as is possible, reflect the interests of justice. 83The first and most obviously relevant matter is that it is in the interests of justice, the parties and the proper use of the Court's resources, that proceedings, particularly those with estimated hearing time of the length here, are heard on the date upon which they are fixed for final hearing. The Court is in the position that it cannot hear all cases at the very first moment they are ready for a hearing. Accordingly, there is a delay between when cases are fixed for hearing and the date upon which they will be heard. If a case, such as this, is allocated seven weeks of hearing time, that necessarily means that other cases waiting to be heard cannot be listed during that period. 84Accordingly, to the extent that the Court's resources are allocated for the hearing of a case such as this, then other cases will have to wait for resources to become available so that they can obtain a hearing date. Therefore, an adjournment will have an adverse impact on other litigants whose cases have been delayed from obtaining a hearing date. 85Secondly, the State will incur a significant sum by way of wasted costs for the preparation of the hearing, which, I am satisfied, it is unlikely that the plaintiffs will be in a position to meet. So unless, in due course, an order is made that either the plaintiffs' solicitor or barrister, pay the sum ordered to be paid for costs, and there is no necessary certainty that this will be so, the State will in a real and practical way, be out of pocket for the costs thrown away by the vacation of the hearing date. 86Thirdly, it must be assumed that any further delay must be likely to have an adverse effect on the quality of the evidence to be adduced, in particular, by the defendant, and any further delay will be likely to involve some additional stress and anxiety for some of the witnesses whom the defendant presently proposes to call. However, there is no specific evidence of any particular detriment to any particular witness. 87Fourthly, in between 20 January 2014 and 5 February 2014, when this application was heard and argued, I am satisfied that notwithstanding his best efforts, and having regard to the complexity of the proceedings and the size of the brief including the 28 volume Court Bundle, the failure of Mr Margiotta to be able to retain counsel of appropriate competence and seniority to present the plaintiffs' case is not at all unreasonable, nor able to be criticised. 88It is clear that the case is one of complexity and size, and it is not one which the plaintiffs' themselves or their solicitor, or any junior counsel could properly prepare and present in a way which provided the Court with any certainty that the plaintiffs' case was being properly presented, and in a way which ensured that the Court received such assistance as it is entitled to. In other words, the consequence to the plaintiffs of not allowing an adjournment, and compelling them to proceed, would in practical terms, be the end of their claims. 89I am prepared to infer, notwithstanding the absence of any real evidence before me, that, in light of the fact that the brief delivered to Mr Baran was on a speculative fee basis, it is unlikely that the plaintiffs personally conducted themselves in a way which has led to this application needing to be made, in circumstances where retained counsel has returned the brief a little under three weeks prior to the commencement of the hearing. 90I also take into account the other relevant matters to which counsel pointed. 91I am satisfied that the interests of justice required the Court to adjourn the proceedings and vacate the hearing date. It seems to me that of principal importance is that the plaintiffs must have an opportunity to fairly present their complex case to the Court. It would only be an exceptional case, in my view, where a Court would, by a case management order, effectively terminate an otherwise apparently reasonably pleaded claim from being pursued by the plaintiffs. Particularly is this so where the claim is one against the State, and arises out of circumstances in which it is alleged that officers of the State have, in a variety of ways, misused their powers to prosecute individuals for crimes alleged to have been committed. 92I accept that there is detriment to the State if the proceedings are adjourned. However, in my assessment in balancing all of the factors, the detriment to the plaintiffs, namely the effective termination of their proceedings, carries more weight and ultimately, here, determinative weight. 93Although senior counsel for the State submitted that even if such an event occurred, the plaintiffs would nevertheless have a legal right of redress against either their solicitor or barrister, I am not firmly persuaded on this application that I can confidently find that this is so. That is for two reasons. The first is that the breadth of the principle underlying the advocate's immunity (which includes instructing solicitors in some circumstances) is still to be determined, and there is no certainty that if proceedings were commenced against either the plaintiffs' former counsel or their solicitor, that advocate's immunity may not constitute a complete defence to those proceedings. 94Secondly, I am unable to make an assessment as to whether any such application could succeed without knowing the reason why counsel returned his brief and the circumstances which have compelled the plaintiffs to make this application, beyond those which have been stated. 95Accordingly, I am not prepared to hold that a refusal to adjourn the proceedings which will necessarily result in detriment to the plaintiffs, is a detriment which would give rise to enforceable legal rights at the hands of the plaintiffs. 96In short, the very late return of the brief, and the inability of the solicitor for the plaintiffs to retain an appropriate counsel, has meant that, I am compelled, in the interests of justice, to adjourn the proceedings, and vacate the hearing dates. 97In all of those circumstances, I decided that the application for adjournment should be granted and consequential orders needed to be made.

Orders 98For the reasons which I have articulated above, on 5 February, I made the following orders: (1)Proceedings presently listed for 10 February 2014 are adjourned. (2)The hearing dates for a period of seven weeks commencing 10 February 2014 are vacated. (3)Proceedings listed for further directions at 9.30am on 12 March 2014 (4)Order the plaintiffs to pay the defendant's costs of and occasioned by the adjournment including all costs thrown away by the adjournment, and also of the motion to adjourn the proceedings. (5)Reserve liberty to any of the parties to apply for any further costs order, including on a different basis, and payable by another person or party, if they be so advised, within 14 days.

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 March 2014