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Kohkanzada v Amiri

Kohkanzada v Amiri

Case [2024] NSWSC 492 1 May 2024

Malicious Prosecution

Aggravated & Exemplary Damages

Causation

Unconscionable Conduct

Tort Law

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Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Kohkanzada v Amiri [2024] NSWSC 492
Hearing dates: 30, 31 January 2024
1, 2, 5, 6, 7, 16 February 2024
Date of orders: 1, 29 May 2024
Decision date: 01 May 2024
Jurisdiction: Common Law
Before: Cavanagh J
Decision:
(1) Judgment for the first defendant against the plaintiff.
(2) Judgment for the second defendant against the plaintiff.
(3) The plaintiff is to pay the first defendant’s costs for the period when the first defendant was represented by solicitors from the date of the filing of her defence on 20 March 2018 until 21 July 2020.
(4) The plaintiff is to pay the second defendant’s costs as follows:
(a) up to and including 14 April 2018 on an ordinary basis, and
(b) from 15 April 2018 on an indemnity basis.
(5) I grant liberty to apply should any party seek a variation of the costs order.

Catchwords:
TORTS – malicious prosecution – institution of proceedings – circumstances in which a private person may be considered a prosecutor – whether defendants instigated the prosecutions against the plaintiff by providing false statements to police – whether defendants maintained the prosecutions by giving false evidence and procuring witnesses to do the same
TORTS – malicious prosecution – damages – heads of damages – where plaintiff claims he suffered anxiety and major depression as a result of his incarceration – whether an award of aggravated and exemplary damages would have been appropriate

Legislation Cited:
Civil Liability Act 2002 (NSW), s 3B
Commonwealth Criminal Code, ss 474.15, 474.17
Crimes Act 1900 (NSW), ss 61, 322
Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 13
Evidence Act 1995 (NSW), s 140

Cases Cited:
A v New South Wales (2007) 230 CLR 500
Beckett v State of New South Wales (2013) 248 CLR 432
Briginshaw v Briginshaw (1938) 60 CLR 336
Commonwealth Life Assurance Society Ltd v Brain (1935) 53 CLR 343
CCL Secure Pty Ltd v Berry [2019] FCAFC 81
Davis v Gell (1924) 35 CLR 275
Fox v Percy (2003) 214 CLR 118
Hobbs v Tinling [1929] 2 KB 1
Lamb v Cotogno (1987) 164 CLR 1
Martin v Watson [1996] AC 74
Mason v Demasi [2009] NSWCA 227
Mitchell v John Heine and Son Ltd (1938) 38 SR (NSW) 466
Sahade v Bischoff [2015] NSWCA 418
Société d'AvancesCommerciales (Société Anonyme Egyptienne) v Merchants' Marine Insurance Co (The “Palitana”) (1924) 20 Ll L Rep 140
State of New South Wales v Ibbett [2005] NSWCA 445
State of New South Wales v Madden [2024] NSWCA 40
State of New South Wales v Spedding [2023] NSWCA 180
State of New South Wales v Zreika [2012] NSWCA 37
Stanizzo v Fregnan [2021] NSWCA 195
Uren v John Fairfax & Sons Pty Ltd (1966) 117 CLR 118

Texts Cited:
Balkin and Davis, Law of Torts (6th ed, 2021)
Fleming, The Law of Torts (11th ed, 2024)

Category: Principal judgment
Parties: Abdul Waris Kohkanzada (Plaintiff)
Neelab Amiri (First…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Kohkanzada v Amiri

Details

AGLC: Kohkanzada v Amiri [2024] NSWSC 492
Case: [2024] NSWSC 492
Decision Date: 01 May 2024

CaseChat Overview and Summary

The case of Kohkanzada v Amiri involved a dispute between the plaintiff, Kohkanzada, and the defendants, Amiri and another, concerning malicious prosecution. The plaintiff alleged that the defendants instigated and maintained false criminal prosecutions against him, leading to his arrest and incarceration. The matter was heard in the Supreme Court of New South Wales. The plaintiff sought damages for the anxiety and depression he suffered as a result of the prosecutions, and argued for an award of aggravated and exemplary damages.

The primary legal issues for the court to determine were whether the defendants could be considered prosecutors for the purposes of a claim in malicious prosecution, and whether they instigated and maintained the prosecutions by providing false statements to the police and giving false evidence. The court also needed to decide whether the plaintiff was entitled to damages for his anxiety and depression, and if aggravated and exemplary damages were appropriate. The court examined the evidence and the applicable legal principles to resolve these issues.

The court found that the defendants could be considered prosecutors because they played a significant role in the initiation and maintenance of the criminal proceedings against the plaintiff. The court determined that the defendants provided false statements to the police and gave false evidence, and procured witnesses to do the same. Consequently, the court held that the defendants were liable for malicious prosecution. Regarding damages, the court acknowledged that the plaintiff suffered anxiety and depression as a result of his incarceration, and therefore, awarded him damages for these losses. However, the court found that aggravated and exemplary damages were not appropriate in this case, given the circumstances and the level of culpability of the defendants.

In conclusion, the court found in favour of the plaintiff and awarded him damages for his losses. The court did not award aggravated and exemplary damages, as it deemed them inappropriate in this case. The defendants were ordered to pay the plaintiff's damages and legal costs.

Orders