Kite v ICAC

[2012] NSWSC 457

Supreme Court

New South Wales

Medium Neutral Citation:

KITE v ICAC [2012] NSWSC 457

Hearing dates:

04/05/2012

Decision date:

04 May 2012

Jurisdiction:

Common Law

Before:

S G Campbell J

Decision:

1. Leave to the plaintiff to replead, file and serve a proposed further amended statement of claim on or before 1 June 2012.

2. If the plaintiff does not serve a proposed further amended statement of claim pursuant to Order 1, the proceedings are dismissed with costs pursuant to rule 13.4 of the Uniform Civil Procedure Rules 2005, in which event Orders 4 and 5 are vacated.

3. The plaintiff is to pay the defendant's costs thrown away by reason of the adjournment.

4. Liberty to restore on 3 days notice.

5. List the proceedings for mention and further direction on 8 June 2012 before Registrar Bradford.

Catchwords:

PRACTICE AND PROCEDURE - motion seeking summary dismissal - plaintiff self represented - plaintiff retained legal representation and sought leave to file and serve amended statement of claim - parties agreed - leave granted.

Legislation Cited:

Independent Commission Against Corruption Act 1988 (NSW)

Cases Cited:

Greiner v Independent Commission Against Corruption (1992) 28 NSWLR 125

Category:

Interlocutory applications

Parties:

John Patrick Kite (Plaintiff)
Independent Commission Against Corruption (Defendant)

Representation:

Counsel:
Mr. Hadley (Plaintiff)
Mr Fordham with Mr. Chiu (Defendant)
Solicitors:
No representation for the plaintiff
I V Knight, Crown Solicitor (Defendant)

File Number(s):

2011/338560

Publication restriction:

None

EX TEMPORE Judgment

1. By his further amended statement of claim filed on 21 November 2011 the plaintiff, Mr Kite, who was then not represented by any legal practitioner, claimed certain remedies from the State of New South Wales arising out of a report published by the Independent Commission Against Corruption in December 2001.

1. In that report, certain findings of corrupt conduct were made against Mr Kite, and the Commission expressed the opinion that consideration should be given at that time to obtaining the advice of the Director of Public Prosecutions as to whether Mr Kite should be prosecuted for a specified criminal offence in accordance with the provisions of s 74A(2)(a) of the Independent Commission Against Corruption Act 1988 (NSW).

1. I infer from the material that Mr Kite appended to his long affidavit verifying his amended statement of claim, which I have read without objection from the parties, that criminal charges were laid and the matter went to trial in the District Court of New South Wales in or about 2006. Mr Kite was acquitted of the charges by the jury.

1. He issued these proceedings in an attempt to challenge - and I use that word neutrally - the findings made by ICAC in December 2001, and seeks damages specifically in relation to the costs he incurred defending himself, and interest.

1. What has occurred to Mr Kite is the very type of thing that Chief Justice Gleeson said could occur in Greiner v Independent Commission Against Corruption (1992) 28 NSWLR 125 at 129 to 130. Having said that, understandably because Mr Kite is a layperson, his statement of claim and even the amended statement of claim to which I have referred - to adopt Mr Hadley of counsel's apt expression - had a very home made feel to it, and reading it, it is not clear what remedies Mr Kite is seeking or the legal basis for them.

1. In these circumstances, it is highly understandable that, acting as a model litigant, the State of New South Wales brought the motion which is before me today seeking, amongst other things, that the proceedings be summarily dismissed.

1. When the matter was called on before me this morning, Mr Hadley of counsel announced his appearance for the plaintiff. Mr Fordham with Mr Chiu appeared for the defendant.

1. Without objection from Mr Fordham, in his usual properly courteous professional manner, I heard from the bar table, without affidavit, Mr Hadley's explanation for the adjournment application he has since made. Mr Hadley informed me that he was appearing so far without the benefit of an instructing solicitor, and the first contact had been made with him a little over two weeks ago, and that only recently had he received any material which would enable him to even start to form a view about what should be done to present - may I put it this way without disrespect to Mr Kite - a coherent pleading, if one was available to Mr Kite in the circumstances.

1. I am of course concerned, as I must be, about the following matters:

(1)   That an adjournment application has been made on the day of hearing without prior notice to the Court, and with only very short notice to the defendant;

(2)   That because of his particular circumstances, and may I make it clear I make no criticism whatsoever of Mr Hadley, he has been unable to draw the envisaged pleading;

(3)   That any adjournment in any case in this Division which has been listed for hearing, even of a long interlocutory matter, after a process of case management, necessarily involves great inconvenience to the public and to other litigants whose cases may have been displaced from the list because of the late application.

1. Against those factors, I have balanced the fact that, on terms, the defendant does not object, and it is of course, at least at a human level, understandable why someone in Mr Kite's position may have a sense of grievance about the course of events. Having said that, I express no view whatsoever about whether that feeling he has forms any basis whatsoever for any form of legal redress, let alone a claim for damages. All of that will have to await in the first instance the emergence of a proper pleading, and secondly, of course, the consideration by the Court of any proceedings according to law.

1. I was and am concerned about the fact that these events have had a very long history. The events giving rise to the ICAC investigation occurred in the late 1990's, and the report itself was published in December 2001. As I understand the papers, as I have said, Mr Kite's acquittal happened about six years ago.

1. Not without hesitation, in my judgment it is in the interests of the administration of justice that the adjournment sought be granted, but only on strict terms.

1. After hearing argument from counsel, and being told very plainly by Mr Fordham that there was some degree of common ground, I adjourned to enable the parties to consider what orders should be made. I notice that Order 2 of the proposed orders is what is referred to as a self-executing order. Upon the contingency that a proposed amended statement of claim does not emerge within a month - when I say emerge, I mean filed and served within that time - the proceedings will be dismissed with costs. I think this particular order properly protects the public interest, and in light of it, the proper order is to grant the adjournment sought by Mr Hadley.

1. The parties have prepared short minutes of order. I make orders in accordance with the short minutes of order dated today, signed by me and placed with the papers.

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Decision last updated: 07 May 2012