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

[2019] NSWSC 70

Supreme Court

New South Wales

Medium Neutral Citation:	Fregnan v Stanizzo; Stanizzo v Badarne; Stanizzo v State of New South Wales [2019] NSWSC 70
Hearing dates:	12 February 2019
Date of orders:	13 January 2019
Decision date:	13 February 2019
Jurisdiction:	Common Law
Before:	Harrison J
Decision:	See [5]
Catchwords:	PROCEDURE – where multiple proceedings are being heard together – whether evidence of plaintiff should be admitted against defendants in separate proceedings – whether cross-examination of plaintiff should be limited to issues relevant to her claim – whether use of the plaintiff’s evidence should be limited or restricted to her claim
Cases Cited:	Fregnan v Stanizzo; Stanizzo v Badarne; Stanizzo v State of New South Wales [2019] NSWSC 69
Category:	Procedural and other rulings
Parties:	Karina Vivianna Fregnan Vincent Francis Stanizzo Muhammad Badarne State of New South Wales
Representation:	Counsel: A Kumar (K Fregnan) C Waterstreet and M Rollinson (V Stanizzo) A Macauley (M Badarne) N Newton and T Buterin (State of NSW)
File Number(s):	2012/1296492014/924252016/296293
Publication restriction:	Nil

Judgment

1. HIS HONOUR: The stage has been reached in Ms Fregnan’s proceedings where she has completed her evidence in chief and is about to be cross-examined. Before that happened, I raised with counsel for the parties in that case the issue that I had flagged in the judgment that I had delivered earlier on the question of the order in which all three proceedings should be heard: see Fregnan v Stanizzo; Stanizzo v Badarne; Stanizzo v State of New South Wales [2019] NSWSC 69. In summary, that issue was whether or not, and if so to what extent, Ms Fregnan’s evidence in her claim for damages could be used by Mr Stanizzo in his cross-claim for malicious prosecution.

2. The problem that I was concerned to address, and to which these reasons are directed, is related to the fairness or otherwise of permitting Mr Stanizzo to utilise Ms Fregnan’s evidence given in the witness box in her case in order to prove his cross claim alleging malicious prosecution if to do so would deprive her of the forensic opportunity enjoyed by the defendants in the other two proceedings. That advantage, simply put, is the opportunity to decide, at the close of Mr Stanizzo’s case against each defendant, whether or not to give or to call evidence. That issue achieves significance having regard to the nature of Mr Stanizzo’s claims and the heavy onus of proof that he bears as a plaintiff contending that he has been prosecuted maliciously and without reasonable and probable cause.

3. I was originally tentatively minded to limit the cross-examination of Ms Fregnan to the issues relevant to her claim for damages. That would theoretically have meant that her decision about whether to give or call evidence in response to Mr Stanizzo’s claim would not have been affected. Upon reflection, however, that course would have placed an intolerable burden on the cross-examiner as well as the Court and would in all likelihood have become practically unmanageable. By far the most efficient way, and in my view the fairer way, would be to permit Mr Stanizzo to cross-examine Ms Fregnan without limitation as to either its scope or its content but to limit or restrict the use of all of that evidence to the proceedings she brings as a plaintiff.

4. Apart from what seems to me to be the unfairness to Ms Fregnan of taking any other approach, it would potentially create a situation in which I was required to assess at least one of Mr Stanizzo’s three separate claims for malicious prosecution on a different basis to the other two. Standing alone, that might not appear to be significant. However, because the claims against Mr Badarne and the State are closely linked to what Mr Stanizzo alleges they were told by Ms Fregnan or should have made of what she said occurred, there is a real possibility of inconsistent results.

5. In my opinion, the use to which the evidence given or called by Ms Fregnan in her proceedings claiming damages from Mr Stanizzo can be put, should be limited or restricted to that claim.

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Decision last updated: 14 February 2019