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

[2019] NSWSC 26

Supreme Court

New South Wales

Medium Neutral Citation:	Fregnan v Stanizzo; Stanizzo v Badarne; Stanizzo v State of New South Wales [2019] NSWSC 26
Hearing dates:	30 January 2019
Date of orders:	01 February 2019
Decision date:	01 February 2019
Jurisdiction:	Common Law
Before:	Harrison J
Decision:	1.    Adjourn the proceedings to 12 February 2019 for hearing. 2.    Reserve the costs of the plaintiff’s application to vacate the hearing.
Catchwords:	PROCEDURE – civil procedure – where plaintiff claims damages for malicious prosecution – where State ordered to produce documents to plaintiff despite claim for privilege – documents not produced pending appeal to Court of Appeal – where plaintiff seeks orders vacating hearing date pending determination of the appeal – whether application to vacate should be granted – whether partial adjournment preferable PROCEDURE – civil procedure – where s 67 notice issued by State – whether hearing should be vacated until status of witness availability established
Legislation Cited:	Evidence Act 1995 (NSW)
Cases Cited:	Stanizzo v State of New South Wales [2018] NSWSC 2003
Category:	Procedural and other rulings
Parties:	Vincent Francis Stanizzo Karina Vivianna Fregnan Muammad Badarne State of New South Wales
Representation:	Counsel: C Waterstreet and M Rollinson (V Stanizzo) A Kumar (K Fregnan) 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: These proceedings are all listed to be heard by me commencing next Monday, 4 February 2019, with a current estimate of three weeks. Mr Stanizzo applies to vacate the hearings. He does so on two bases. First, following a decision by Rothman J published on 24 December 2018, in which his Honour rejected a claim by the State of New South Wales for privilege in relation to certain documents, the State has appealed to the Court of Appeal against that decision. That appeal is due to be heard on 11 February 2019. Mr Stanizzo says that he is not in a position to defend the claim against him or to prosecute the matters in which he is a plaintiff until the Court of Appeal’s decision is known. Secondly, (former) Detective Senior Constable Murdock, a principal player in the events that give rise to, or that are concerned with, these proceedings, is currently unwell and unable to give evidence. The State has applied to have his evidence admitted in accordance with s 67 of the Evidence Act 1995, upon the basis that he is relevantly unavailable. Mr Stanizzo contends that he is not in a position to commence or defend any of the proceedings until that issue is decided.

2. In my opinion, these matters do not necessitate that the hearing dates be completely vacated. An alternative solution is clearly available. This is for the following reasons.

Background

3. In 2012, Karina Fregnan commenced her current proceedings against Mr Stanizzo claiming damages for assault, including alleged sexual assault. Mr Stanizzo was subsequently indicted on a series of charges including that he had sexual intercourse with Ms Fregnan without her consent. On 2 August 2013, that indictment was terminated by the entry of a nolle prosequi. Mr Stanizzo has filed a cross-claim in the Fregnan proceedings claiming damages for malicious prosecution. He contends in that cross-claim that Ms Fregnan was the prosecutor in the criminal proceedings and that she is liable in that capacity for wrongfully commencing and maintaining them.

4. Mr Stanizzo later filed separate proceedings in 2014 against Mr Badarne. He claims damages for malicious prosecution, alleging that Mr Badarne was also a prosecutor in respect of separate criminal proceedings against him commenced by indictment charging that Mr Stanizzo had intimidated him on four separate occasions. That indictment was terminated by the entry of a nolle prosequi on 15 January 2014. Mr Stanizzo alleges that Mr Badarne wrongfully commenced and continued those proceedings and that he is liable to pay damages in the capacity of a prosecutor.

5. Detective Murdock was at all relevant times the officer in charge of the investigation concerned with all of the criminal charges faced by Mr Stanizzo. In due course, in 2016, Mr Stanizzo commenced proceedings against the State of New South Wales claiming damages for malicious prosecution in respect of the prosecution of the charges on both indictments. Mr Stanizzo alleges that Detective Murdock, among others, was the prosecutor who wrongfully commenced and maintained the criminal proceedings and that he is liable in that capacity to Mr Stanizzo in damages.

6. Central to Mr Stanizzo’s contentions in all proceedings is the proposition that the allegations made against him by both Ms Fregnan and Mr Badarne, which founded the indictments, were known by them to be false and that Detective Murdock was privy to that falsity at some stage before the proceedings were terminated. Mr Stanizzo goes as far as to contend that there was some form of wrongful conspiracy to commence and maintain the criminal proceedings and that proof of that conspiracy will assist him to support the allegation that they were commenced and continued without reasonable and probable cause and maliciously.

7. All defendants oppose the application to vacate the hearing.

Consideration

8. It is reasonably apparent that Mr Murdock was never going to be a witness called by Mr Stanizzo. Mr Waterstreet, who appears for Mr Stanizzo, concedes as much. Having regard to the onus and burden of proof upon Mr Stanizzo in proceedings such as these, there is a realistic prospect that Mr Murdock would not be called by any of the defendants either. The fact that Mr Murdock has made statements that have been served by the State of New South Wales is no reliable indication of what his evidentiary role in the proceedings might be. It is Mr Waterstreet’s contention that his forensic position is compromised if he is required to proceed either as a plaintiff or as a defendant without a final decision upon whether Mr Murdock will become a witness.

9. I am unable to understand that contention. The State has cautiously served a s 67 notice that indicates that the State intends to adduce evidence of previous representations made by Mr Murdock at Wollongong Police Station “in the context of giving a written witness statement for use in these proceedings” on 4 April 2018, with which I observe Mr Stanizzo has been provided. The State also intends to adduce evidence of representations made by Mr Murdock on 21 June 2013, contained in an affidavit sworn by him in the context of an application by Mr Stanizzo for access to a surveillance device warrant and supporting documents. Mr Stanizzo also has a copy of that affidavit. Finally, the State has indicated that it may wish to rely upon representations made by Mr Murdock in the course of his evidence given before Syme DCJ on 1 and 2 July 2013. A transcript of that evidence has apparently never been obtained by anyone in the several proceedings in this Court.

10. Mr Stanizzo’s concerns will not materialise unless and until the State’s application to adduce Mr Murdock’s evidence is dealt with. The appropriate time to do that is when the State seeks to adduce his evidence in the course of the proceedings, if in fact it ultimately decides to do so. When that occurs, if it does, Mr Stanizzo can revive his opposition to Mr Murdock giving evidence without being exposed to cross-examination, and any other course that Mr Stanizzo wishes to pursue, including the question of whether Mr Stanizzo should have an opportunity to test Mr Murdock’s claim to be unable to give evidence by reason of his mental or psychiatric disability, if necessary, by examination by an alternative specialist medical practitioner.

11. There is not in my view anything that is likely, far less certain, to occur in the proceedings up until that point that could support Mr Stanizzo’s claim that the only practically available solution to his concern about the State’s s 67 application is to abort the entire three weeks of scheduled hearing. I would refuse Mr Stanizzo’s application to vacate the date on this basis.

12. The second issue is more troubling. Mr Stanizzo perceives that certain documents, being notes of communications or notes of conferences held between Ms Fregnan, Mr Badarne and the legal representatives at the DPP, being Mr Barr of counsel and Ms Rallis, may contain material that supports his suspicion that the parties sued by him as prosecutors could not have had any reasonable basis upon which to believe that any of the criminal allegations against Mr Stanizzo were true. He hopes to be able to rely upon that material, if it is made available to him, to support his claim that the putative prosecutors acted maliciously and brought or maintained the proceedings without any reasonable and probable cause. I have not seen the documents in question. The fact that the State has claimed privilege over these documents on the one hand, and the added fact that Rothman J has granted access to them on the other hand, have in combination only fuelled Mr Stanizzo’s enthusiastic belief that the documents will support his case in the way I have described: see Stanizzo v State of New South Wales [2018] NSWSC 2003.

13. In the course of his reasons for judgment, Rothman J said this at [66] – [69]:

“[66] At this stage of the proceedings, the Court is prepared to find, that there are reasonable grounds that the communication between the complainants and the police and/or lawyers was a communication ‘in furtherance of the commission of a fraud or an offence or the commission of an act that renders a person liable to civil penalty’. In this case, the communication, by the complainant to the lawyers for the DPP, was made with the intention of facilitating the fraud by the complainants: Zemanek v Commonwealth Bank of Australia (Federal Court of Australia, Hill J, 2 October 1997, unrep). The document is evidence of the communication. It is unnecessary, in order to fit within the provisions of s 125(1), for the lawyer, in this case the DPP or the lawyers employed by the DPP, to commit, themselves, the fraud, offence or act that renders a person liable to a civil penalty. It is sufficient if the communication were made in furtherance of the commission of the fraud.

[67] Thus far, the Court has paid little attention to the meaning of the term ‘fraud’. Fraud, at the very least, must include an element of dishonesty and includes, as Santow J said in Kang v Kwan, supra, ‘to include the kind of sharp practice often associated with equitable fraud encompassed by [a] sense of dishonesty, namely “lack of probity; disposition to deceive, defraud or steal”.’: Kang v Kwan at [37], See also ATH Transport v JAS (International) [2002] NSWSC 956, per Barrett J, where Barrett J accepted that the term ‘fraud’, where used in s 125 of the Evidence Act, ‘is a statutory emanation of the principle that there is no privilege in iniquity’: at 12].

[68] As a consequence, it is unnecessary for the Court to delve further into whether Detective Murdock, Ms Rallis or Mr Barr were or should have been aware of the fraud that had been perpetrated, at least in relation to the civil proceedings and the cheque for $134,518 to which attention has been drawn in the evidence adduced. It is sufficient, for present purposes, that there are reasonable grounds for finding that the communication between the complainants and the police and/or DPP was in furtherance of the commission of a fraud.

[69] Even though it is unnecessary to find any further, I would, on the preliminary material already before the Court, also find that there are reasonable grounds that the communication by the complainants to the police and/or DPP ought reasonably to have been known to have been made or prepared in furtherance of a deliberate abuse of power. That latter finding is based upon the timing of the complaint, the known fraud in relation to the civil proceedings and the cheque, together with the other evidence adduced.”

14. It will be apparent that his Honour’s preliminary views were not dispositive of the question on a final basis and are in any event the subject of anticipated consideration by the Court of Appeal. It should be noted that Mr Stanizzo’s application for access to the documents was made in a timely fashion in the sense that, but for the pending appeal, he would have been in possession of them well before now and in any event within a timeframe that would have obviated the need for an application such as the present. Having regard to the fact that the Court of Appeal has in effect expedited its determination of the issue, there is a prospect that the question will be decided on 11 February 2019, even if that Court’s reasons are not also available on that day.

15. Mr Stanizzo might reasonably have anticipated that by the time the several proceedings commenced next Monday he would already have had access to the documents he seeks. It seems to me in such circumstances that Mr Stanizzo should not be required to defend Ms Fregnan’s claim or prosecute his own claims before he either in fact gains access to those documents or knows that such access will not be given.

16. Without wishing or intending to express a view about the outcome of the State’s appeal, there is obviously a prospect that Mr Stanizzo might be given access to the documents on or shortly following 11 February 2019. Against that contingency, it seems to me to be preferable to retain the nine days scheduled for the hearing of these matters between 12 February and 22 February 2019 if at all possible.

17. Accordingly I propose to vacate the days scheduled for these proceedings between 4 February and 11 February 2019. I will list the proceedings to commence before me on 12 February 2019, subject to any application that any party might wish to make in the circumstances as they then appear. I also reserve the costs of this application.

**********

Decision last updated: 01 February 2019