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

[2019] NSWSC 648

Supreme Court

New South Wales

Medium Neutral Citation:	Fregnan v Stanizzo; Stanizzo v Badarne; Stanizzo v State of New South Wales [2019] NSWSC 648
Hearing dates:	3 June 2019
Date of orders:	03 June 2019
Decision date:	04 June 2019
Jurisdiction:	Common Law
Before:	Harrison J
Decision:	(1) Tender of psychiatrist’s report rejected. (2) Plaintiff’s counsel released from undertaking.
Catchwords:	PROCEDURE – civil procedure – where plaintiff seeks to tender psychiatrist’s report – where report served on defendants late – whether opinion proffered by psychiatrist falls within his area of expertise – whether opinion proffered by psychiatrist is based upon established facts – tender of report rejected   PROCEDURE – civil procedure – where plaintiff wishes to have his counsel released from an undertaking not to communicate material produced on subpoena – whether release of undertaking would cause prejudice to the defendant – counsel released from undertaking
Category:	Procedural and other rulings
Parties:	Karina Vivianna Fregnan Vincent Francis Stanizzo Muhammad Badarne State of New South Wales
Representation:	Counsel: C Waterstreet and 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: Mr Stanizzo wishes to tender the report of Dr J A Roberts, a psychiatrist, dated 17 April 2019, who examined him and whose earlier report dated 30 April 2018 is already in evidence. Mr Stanizzo wishes to rely upon this report for two purposes. First, to bring Dr Roberts’ opinions and clinical assessment of Mr Stanizzo up to date. Secondly, to have him comment upon some aspects of the way in which Mr Stanizzo behaved when giving his evidence before me and to assess that behaviour having regard to the alleged causes of Mr Stanizzo’s current psychiatric conditions.

2. The report is objected to by the defendants on a number of grounds. For example, even though it has been in the possession of the lawyers for Mr Stanizzo since approximately the date that it bears, there was no attempt to draw it to the attention of the defendants until it was served upon them on 31 May 2019. Secondly, the report contains opinions that are expressed about what may in general terms be described as the way in which a solicitor of Mr Stanizzo’s background and experience might ordinarily be expected to respond when questioned and cross-examined in proceedings such as these. Thirdly, the defendants say that they are now at this late stage unable to marshal any expert opinion of their own to respond to this material, assuming for present purposes that it qualifies as expert evidence at all.

3. I rejected the tender of this report. I did so for the following reasons.

4. The commentary proffered by Dr Roberts does not seem to me to fall within his area of expertise as a psychiatrist. If I am wrong about that, Dr Roberts does not in any event describe the way in which he has been able to assess Mr Stanizzo’s behaviour by reference to some unidentified and unexplained standard of how a solicitor giving evidence might be expected to react. For example, at one stage Dr Roberts reviews some pieces of transcript, including the following contribution by Mr Stanizzo:

“This is supposed to be a Court of justice, right, this is supposed to be a Court of justice and it is, right, but the way you are misusing your privilege as a counsel [sic] to ask questions in cross-examination you are abusing the system.”

5. Dr Roberts said of this and other evidence:

“It is my impression upon considering those pages of transcript forwarded by you to me that the behaviour of Mr Stanizzo viewing the legal proceedings was inconsistent with the behaviour that would be expected from a solicitor on how to conduct himself in Court.”

6. Dr Roberts elsewhere offers an opinion querying how a solicitor of Mr Stanizzo’s longstanding could fail to have been aware that in referring to previous legal advice he might risk waiving privilege in respect of it.

7. Dr Roberts offers the opinion that Mr Stanizzo’s arguably idiosyncratic reactions to stressful court situations were the result of a cognitive impairment caused by the matters of which Mr Stanizzo complains in these proceedings.

8. In my opinion, Dr Roberts’ opinions in this respect are based upon an unestablished norm for the assessment of solicitors’ behaviour in court. I am unaware of what that norm might be. Mr Stanizzo has not established what it is. Dr Roberts’ opinion is not based upon an empirically verifiable series of facts or assumptions about how solicitors should, or might be expected to, behave when cross-examined in their own case. The opinions expressed are on one view in any event matters for me to assess, rather than matters of clinical psychiatric expertise.

9. To the extent that Dr Roberts offered any current opinion about Mr Stanizzo’s medical condition in the report, I have allowed him to lead some short oral evidence to the effect that he maintains the opinions expressed in his original report.

10. Mr Stanizzo next wishes to have his counsel released from an undertaking not to communicate certain material produced by the Local Court on subpoena in order that it can be used in evidence in the present proceedings. That arises in the following way.

11. Mr Badarne transferred his property in Fairy Meadow to his wife by transfer dated 10 February 2015. This is the property purchased by him with funds said to have been provided by Mr Abu Ria pursuant to a Deed of Settlement to which I have referred in previous judgments. Part of the transaction allegedly consummated by that deed included a conditional obligation imposed upon Mr Badarne to repay the sum of $230,000 in certain specified circumstances. It is common ground that those circumstances have not yet arisen.

12. The transfer of Mr Badarne’s property to his wife was sanctioned by the Local Court in the form of consent orders made on 10 February 2015 pursuant to the Family Law Act. Mr Stanizzo originally sought access to this material in support of an application for a freezing order in late 2018. That order was ultimately refused but Mr Stanizzo’s counsel were given conditional access to the material in the course of that application.

13. Mr Stanizzo now wishes to tender some of the material placed before the Local Court, upon the basis of which it approved the consent orders, in order to show that Mr Badarne did not reveal his obligation to Mr Abu Ria as a liability in February 2015. Mr Stanizzo contends that that supports his argument that the deed was a sham, that Mr Badarne never borrowed any money form Mr Abu Ria, that the sum referred to in the deed was in fact paid to him unconditionally and that it was, according to Mr Stanizzo, money paid by Mr Abu Ria by way of legal costs for which he was otherwise then liable to Mr Stanizzo’s legal practice.

14. The application to be released from the undertaking and the tender of the documents is opposed by Mr Badarne.

15. In my opinion, Mr Stanizzo’s counsel should be released from their undertaking for this limited purpose. The contents of all of the documents will be well known to Mr Badarne. Indeed, he will presumably be the author of most if not all of them. There can in those circumstances be no element of prejudice caused by surprise. The relevance of the material is well established, even if the significance of Mr Stanizzo’s contentions concerning the Deed of Settlement and the monies in question remains to be determined. The question of whether or not in 2015 Mr Badarne considered himself to be still indebted to Mr Abu Ria in the conditional way described in the deed is capable of at least informing Mr Stanizzo’s allegations concerning the authenticity of the deed.

16. The significant argument in favour of a rejection of the application is that it should have been made much earlier and significantly at a time before the close of Mr Stanizzo’s case in chief and before Mr Badarne was required to consider whether or not to give evidence himself. However, those are matters to be considered at the point when Mr Stanizzo seeks to tender any of the material that is covered by the undertaking rather than at the point of considering whether or not to release Mr Stanizzo’s counsel from it.

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Decision last updated: 04 June 2019