Fregnan v Stanizzo; Stanizzo v Badarne; Stanizzo v State of New South Wales
[2018] NSWSC 2004
•14 December 2018
Supreme Court
New South Wales
Medium Neutral Citation: Fregnan v Stanizzo; Stanizzo v Badarne; Stanizzo v State of New South Wales [2018] NSWSC 2004 Hearing dates: 14 December 2018 Date of orders: 14 December 2018 Decision date: 14 December 2018 Jurisdiction: Common Law Before: Rothman J Decision: (1) Note that Mr Stanizzo has served proposed Index to Court Book (tender bundle) on 12 December 2018.
(2) State of NSW, Ms Fregnan and Mr Badarne to notify each other party of any further documents sought to be included in Court Book by 11 January 2019.
(3) The state to file and serve a Court book by 22 January 2019.
(4) Each party to notify other parties of objections to any part of Evidentiary Statements by 22 January 2019.
(5) Note that Court Book to contain documents that the parties may wish to tender and that each party reserves the right to raise any appropriate objection to admissibility of any individual document in the Court Book, including on grounds of relevance.
(6) Each party to serve a copy of its opening address by 5pm 25 January 2019.
(7) The matter to be listed prior to trial to deal with any outstanding notices of motion at a date to be determined by the List Judge.
(8) The Court as presently constituted will approach the List Judge to determine the most convenient date for that and the parties will be notified.
(9) The Costs will be costs in the cause.
(10) Orders to be entered forthwith.Catchwords: PRACTICE AND PROCEDURE – directions balancing need for preparation and difficulty with time of year in order to have matter ready for trial on February 2019 Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW)
Civil Procedure Act 2005 (NSW)Cases Cited: Aon Risk Services Australia Limited v Australian National University [2009] HCA 27 Category: Procedural and other rulings Parties: 2012/129649
Karina Vivianna Fregnan (Plaintiff)
Vincent Francis Stanizzo (Defendant)2014/92425
2016/96293
Vincent Francis Stanizzo (Plaintiff)
Muhammad Badarne (Defendant)
Vincent Francis Stanizzo (Plaintiff)
State of New South Wales (Defendant)Representation: Counsel:
2012/129649
A Kumar (Plaintiff)
LMK Rollinson (Defendant)2014/92425
2016/96293
LMK Rollinson (Plaintiff)
A Macauley (Defendant)
LMK Rollinson (Plaintiff)
P Newton (Defendant)
File Number(s): 2012/129649; 2014/92425; 2016/296293
EX TEMPORE Judgment
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HIS HONOUR: Before the Court are applications for directions in relation to a trial that is said to commence on 4 February 2019 for a duration of some three weeks.
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Some of the matters are matters that simply require the balancing of the difficulties associated with this time of year and the need to have matters properly prepared prior to the time at which the trial is to commence.
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One of the issues which I need to deal with in some detail are the orders or directions that are proposed in paragraphs 7 and 8 of the directions sought by the interests associated with Mr Stanizzo in any one of the four matters.
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They refer to letters dated the 7th and 23rd of November and 11 December.
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I deal with the short letter dated 11 December 2018. That is no longer an issue between the parties. Why I was addressed on it I have yet to determine.
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The letter of 7 November 2018, which is a letter dealing with a range of matters, relates to an issue, in large part, on the sufficiency of production. As I understand it, notices to produce have been served and have been answered.
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If a party believes, reasonably, that there has not been adequate or appropriate production, in accordance with a notice to produce, there are remedies available under the Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”) and generally under the Civil Procedure Act 2005 (NSW).
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Directions that a letter be “answered” or “replied” to is not one of the remedies contemplated by the UCPR. Nor is the Court of a mind to ask, as a result of an informal letter, the defendant or any of them to answer interrogatories.
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If interrogatories are sought to be served they should be the subject of application by motion before the Court in the usual way. These are civil proceedings, not criminal proceedings, and the plaintiff is required to prove the case and the police have no duty other than that required of the rules of court in s 56 of the Civil Procedure Act to provide the plaintiff with evidence.
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If the notice to produce has been served and has not been answered adequately then that is a matter that can be taken up under the UCPR by motion.
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Similarly, the letter of 23 November 2018, which asks the question whether a further statement by certain police officers is to be served, is frankly redundant.
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An order of court has issued requiring the parties to file evidentiary statements. If the statements have not been filed, in accordance with that evidentiary direction, then the party or parties that have not so filed will be in breach of the directions.
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If, in fact, the party then seeks to adduce further evidence that has not been served, the party would need the leave of the Court so to do. If it led to an adjournment or other issue of delay or loss of costs incurred, it may well require the party so seeking to pay costs thrown away.
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Further, given, that which fell from the High Court in Aon Risk Services Australia Limited v Australian National University [2009] HCA 27 and the provisions of s 56 of the Civil Procedure Act together with the requirements of the UCPR, if service of such a statement were to be made in circumstances where the effect might be to delay a trial that has been fixed for three weeks, it is likely that leave to serve the document would not be granted, but those are matters for the trial judge or the judge dealing with that preliminary issue.
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Lastly, I deal with the question or issue raised by the longer letter of 11 December 2018, in which the statement is made that certain police records are of crucial relevance and that copies of such records should be produced.
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As I understand it from the Bar table, copies of documents that have been required to be produced by notice have been produced, save and except to the extent they were the subject of a claim for legal professional privilege, and, in the case of a claim for legal professional privilege, they have in accordance with the rules been listed and the claim made.
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There is still one outstanding matter on which I am reserved in relation to some of those privileged claims.
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I then go to the question of the preparedness of the parties for the trial and how the matter can best be prepared.
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I am working off the direction sought by Stanizzo Document. That is the heading of the document, provided by the plaintiff.
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Order 1 is agreed.
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Order 2: there is a debate between the parties as to whether the court book should be provided within 7 days or by 11 January 2019. In my view, given the time of year and the necessity to have people available to work on the material, 11 January 2019 is an appropriate date for the provision of the court book. The State of New South Wales, Ms Fregnan and Mr Badarne are to notify each other party of any further documents sought to be included.
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Order 3: the State of New South Wales to file and serve a court book by 22 January 2019.
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Order 4: each party to notify other parties of objections to any part of evidentiary statements by 22 January 2019. It seems to me you do not need the court book to object to any evidentiary statement.
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Order 5 is agreed.
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Order 6: each party to serve a copy of its opening address, that is, a written outline of its opening, by 5pm, 25 January 2019.
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Order 7 is not made.
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Order 8 is no longer in issue at least insofar as the video is concerned.
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Orders 9, 10 and 11 are to be dealt with in the same way.
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I will make the following further order. The matter to be listed prior to trial to deal with any preliminary issue, including any outstanding notices of motion, at the earliest available date prior to trial.
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The Court as presently constituted will approach the List Judge to determine the most convenient date for that and the parties will be notified in due course. The preference of the Court, if possible, is that the preliminary issues be heard by the judicial officer that is to hear the trial.
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The Court makes the following orders:
Note that Mr Stanizzo has served proposed Index to Court Book (tender bundle) on 12 December 2018.
State of NSW, Ms Fregnan and Mr Badarne to notify each other party of any further documents sought to be included in Court Book by 11 January 2019.
The state to file and serve a Court book by 22 January 2019.
Each party to notify other parties of objections to any part of Evidentiary Statements by 22 January 2019.
Note that Court Book to contain documents that the parties may wish to tender and that each party reserves the right to raise any appropriate objection to admissibility of any individual document in the Court Book, including on grounds of relevance.
Each party to serve a copy of its opening address by 5pm 25 January 2019.
The matter to be listed prior to trial to deal with any outstanding notices of motion at a date to be determined by the List Judge.
The Court as presently constituted will approach the List Judge to determine the most convenient date for that and the parties will be notified.
The Costs will be costs in the cause.
Orders to be entered forthwith.
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Decision last updated: 24 December 2018
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