Fregnan v Stanizzo; Stanizzo v Badarne; Stanizzo v State of New South Wales

[2020] NSWSC 157

Supreme Court

New South Wales

Medium Neutral Citation:	Fregnan v Stanizzo; Stanizzo v Badarne; Stanizzo v State of New South Wales [2020] NSWSC 157
Hearing dates:	28 February 2020
Date of orders:	28 February 2020
Decision date:	28 February 2020
Jurisdiction:	Common Law
Before:	Harrison J
Decision:	(1)    Mr Stanizzo’s application to rely upon further written submissions is refused.  (2)    Mr Stanizzo to pay the costs of all other parties of the application.
Catchwords:	CIVIL PROCEDURE – application to rely on further submissions – where lengthy submissions already provided – where additional submissions contain disputed matters of fact
Cases Cited:	Beckett v State of New South Wales [2015] NSWSC 1017
Category:	Procedural and other rulings
Parties:	Karina Vivianna Fregnan Vincent Francis Stanizzo Muhammad Badarne State of New South Wales
Representation:	Counsel: M Rollinson (V Stanizzo) A Macauley (M Badarne) N Newton and T Buterin (State of NSW)
File Number(s):	2012/129649; 2014/92425; 2016/296293
Publication restriction:	Nil

Judgment

1. HIS HONOUR: I reserved my decision in these matters on 9 August 2019. That followed orders and directions with respect to the service of written submissions by all parties. Mr Stanizzo finalised his written submissions as long ago as 27 September 2019 in the form of an addendum to his submissions in reply.

2. Mr Stanizzo has now applied to rely upon further submissions in the form of a document dated 21 February 2020. All other parties have been provided with this latest document. All other parties object to Mr Stanizzo relying upon it.

3. It is convenient briefly to record the procedural history in these matters dealing with orders made by me relating to the provision of written submissions.

4. On 7 June 2019, I directed that Mr Stanizzo’s closing submissions in all cases be filed and served by 24 June 2019. On 25 June 2019, the matter was relisted at the request of Mr Stanizzo’s counsel. I ordered Mr Stanizzo to file and serve his submissions by 15 July 2019. I ordered the State of New South Wales and Mr Badarne to file and serve their submissions in response by 16 August 2019. I ordered Ms Valvano to file and serve her submissions by 30 August 2019. Finally, I ordered Mr Stanizzo to file any submissions in reply to Ms Valvano’s submissions by 6 September 2019.

5. On 16 July 2019, Mr Stanizzo served 34 pages of submissions in his case against Ms Valvano and 87 pages of submissions in his case against Mr Badarne. He did not serve submissions against the State of new South Wales at that time. These were served on 24 July 2019.

6. On 29 July 2019, Mr Stanizzo served an “addendum” to his submissions in his case against Ms Valvano and Mr Badarne. Mr Badarne served his submissions on 16 August 2019. The State of New South Wales served its submissions on the following day.

7. On 2 September 2019, counsel for Mr Stanizzo sought and was granted leave for Mr Stanizzo to serve submissions in reply. He indicated that this could be done by 6 September 2019. These submissions were served on 19 September 2019. On 23 September 2019, Mr Stanizzo served a revision of his submissions in reply. On 27 September 2019, Mr Stanizzo served an addendum to his submissions in reply.

8. On 30 September 2019, counsel for Mr Stanizzo sought to relist the matter. That application was not ultimately pursued.

9. On 24 October 2019, counsel for Mr Stanizzo first indicated to me that he was instructed to seek leave to file further submissions. However, on 8 November 2019, he sent an email saying “the matter will not be pursued further”.

10. On 16 December 2019, Mr Stanizzo served a schedule of corrections to his reply submissions.

11. Finally, on 8 January 2020, counsel for Mr Stanizzo emailed my Associate and the parties asking that the matter be relisted so that Mr Stanizzo could seek leave “to file a further written submission for the Court’s guidance as to the relevant caselaw, in particular as referred to in the Court’s judgment in Beckett v State of New South Wales [2015] NSWSC 1017”.

Consideration

12. Mr Stanizzo’s opponents all maintain that the time for further submissions has long passed. Mr Stanizzo contends that important issues of law relating to the conduct of malicious prosecution litigation in general and the issues of reasonable and probable cause and malice in particular have recently been the subject of decisions in this Court and in the Court of Appeal and that he should be entitled to rely upon them in the present proceedings.

13. I do not take that last contention to be controversial. The difficulty with that submission is that Mr Stanizzo now wishes to divert his attention from merely legal considerations so as to include references to disputed matters of fact. Mr Stanizzo’s opponents contend that it would be oppressive if he were allowed to raise such matters at this late stage of the proceedings.

14. I agree.

15. Mr Stanizzo’s earlier submissions are comprehensive. So are those of his opponents. The dense and complex factual matrix in all of these cases has been explored by all parties at length. Mr Stanizzo cannot reasonably expect to be given yet a further opportunity to examine this. By way of exception, I note that the extent to which Mr Stanizzo’s further submissions deal with recent cases and legal principle appears to be unexceptionable.

16. In the circumstances, I propose to reject Mr Stanizzo’s application to rely upon his further written submissions. I will take account only of the references to authority which they contain.

17. Mr Stanizzo accepts that he must pay the costs of this application.

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Decision last updated: 28 February 2020