Levis v Stavropoulos

[2020] NSWDC 296

District Court

New South Wales

Medium Neutral Citation:	Levis v Stavropoulos [2020] NSWDC 296
Hearing dates:	11 June 2020
Date of orders:	12 June 2020
Decision date:	12 June 2020
Jurisdiction:	Civil
Before:	Judge Levy SC
Decision:	See paragraphs [38] to [42] for orders.
Catchwords:	PRACTICE & PROCEDURE – dismissal of an application for a stay of proceedings – civil proceedings claiming damages for alleged assault in Greece – decision on whether defendant will be tried on criminal charges in Greece still pending with Greek prosecutor – balancing of respective procedural rights and entitlements
Legislation Cited:	Civil Procedure Act 2005 (NSW), s 26, s 31.4(1), s 58(2), s 67 UCPR r 12.11(1)(h), r 31.4(1)
Cases Cited:	Damberg v Damberg & Ors (2001) 52 NSWLR 492; [2001] NSWCA 87 Gipsy Fire v Truth Newspapers Pty Ltd (1987) NSWLR 382 Levis v Stavropoulos, unreported, 27 February 2020
Category:	Procedural and other rulings
Parties:	Beth Levis (Plaintiff) Nicholas Stavropoulos (Defendant)
Representation:	Counsel: Mr M Windsor SC with Ms E Yasumoto (Plaintiff) Mr SE McCarthy (Defendant)   Solicitors: Carroll & O’Dea Lawyers (Plaintiff) Vobis Equity Attorneys (Defendant)
File Number(s):	2019/113051
Publication restriction:	None

Judgment

Two contested notices of motion

1. Each party in these proceedings has filed a notice of motion seeking procedural orders in a case brought by the plaintiff, Beth Levis, against the defendant, Nicholas Stavropoulos, claiming damages for an alleged assault and battery, on the Greek Island of Mykonos.

2. The defendant’s notice of motion, filed on 23 March 2020, seeks an order pursuant to s 67 of the Civil Procedure Act 2005 (NSW), for a stay of the plaintiff’s proceedings, for a period of 12 months, or alternatively, that the proceedings be stayed until asserted parallel and related criminal proceedings involving the defendant, in Greece, have concluded. The plaintiff opposes those orders on grounds of unreasonableness.

3. The defendant’s notice of motion follows the dismissal, on 27 February 2020, of an earlier notice of motion filed by him in which he failed to persuade another Judge of this Court that a stay should be ordered pursuant to s 67 of the Civil Procedure Act 2005 on the argued ground that, pursuant to UCPR r 12.11(1)(h), it had no jurisdiction in this case, Greece being the asserted appropriate forum. That argument was rejected: Levis v Stavropoulos, unreported, 27 February 2020: (His Honour Judge Dicker SC).

4. The plaintiff’s notice of motion, filed on 7 May 2020, sought an order that the defendant file his defence within 7 days, or alternatively, the plaintiff have liberty to enter a default judgment, with damages to be assessed. Case management orders were also sought by the plaintiff concerning the service of documentary evidence.

5. Before the motions could be heard, the defendant filed a defence electronically at 5.59pm on 10 June 2020. The effect of that eleventh hour filing now obviates the need for the plaintiff to continue to seek an order for a defence to be filed within seven days. However, the case management orders sought by the plaintiff still remain relevant and must be determined.

Factual background to the underlying case

6. By statement of claim filed on 11 April 2019, the plaintiff claims damages from the defendant for alleged trespass to her person. She claims that at about 19:30 hours on 2 July 2016, the defendant committed an unlawful assault and battery upon her without her consent.

7. The events in question are claimed to have occurred whilst the plaintiff and her husband were attending a restaurant to celebrate a friend’s birthday. For the purpose of dealing with the present notices of motion it is not necessary to describe the underlying events in further detail. They are adequately described in paragraph 10 of the plaintiff’s statement of claim.

8. I am informed that the defendant has dual Australian and Greek citizenship. In his defence, sworn on 10 June 2020, the defendant denied the factual elements of the plaintiff’s claim. Both the plaintiff and the defendant are residents of New South Wales. This Court has previously found that it has jurisdiction in this case.

Applicable law

9. Prima facie, the substantive law of Greece applies to these proceedings, as the lex loci delecti, although where no evidence is adduced as to some material aspects of Greek law, it may be that in part, the lex fori may apply: Damberg v Damberg & Ors (2001) 52 NSWLR 492; [2001] NSWCA 87, at [119]. That is a matter to which the parties must give their attention prior to an ultimate trial.

10. The defendant introduced an expert report dated 10 May 2020 from Mr Theodoras Ninopoulos, the defendant’s lawyer in Athens, Greece, to explain certain aspects of the criminal investigation and procedural processes that prevail in Greece.

The central matter at issue on the notices of motion

11. That expert evidence has relevance because the defendant claims that, following the plaintiff’s complaint to police in Greece over the alleged events, the defendant became the subject of a police investigation to determine whether or not he should be charged with criminal offences. That investigation has taken a meandering course since 2016. At present there are no current charges against the defendant but that decision is under review.

12. The defendant claims that since there are parallel and related criminal proceedings in Greece that are not yet concluded, there should be a stay of the plaintiff’s present proceedings. The plaintiff disputes the validity of that claim, and claims that the defendant is seeking to unreasonably delay the progress of this litigation.

Evidence on the motions

13. The defendant relied upon the expert report dated 10 May 2020 from Mr Theodoras Ninopoulos, which explained some aspects of Greek criminal law and procedure that has some relevance to this case. Mr Ninopoulos’ firm acts for the defendant in his litigation in Greece.

14. The plaintiff relied upon the affidavits of her solicitor, Ms Julia Harrison, respectively sworn on 5 May and 10 June 2020, which dealt with relevant procedural events. Ms Harrison was not required for cross-examination.

Submissions of the parties

15. Written submissions by counsel for the defendant were dated 11 June 2020. The written submissions of senior counsel for the plaintiff were of the same date. Both sets of written submissions were supplemented by oral submissions, the combined effect of which succinctly raised the point for decision as described above.

Consideration

16. The defendant’s claim of the existence of parallel or related criminal proceedings requires scrutiny as the claimed parallel proceedings are in the form of an investigation where, about four years after the event in question, there is no current charge to be answered by the defendant. Whilst it is true that these civil proceedings involve allegations of assault by the defendant, and whilst I am satisfied that the plaintiff has made allegations to the same effect to investigating police in Greece over those alleged events, I am far from satisfied that there are relevantly active parallel and related criminal proceedings on foot in Greece concerning those events.

17. I have come to that view in light of the content of the expert report from Mr Ninopoulos. Recognising that there are differences in the inquisitorial judicial system in Greece and the adversarial system in this jurisdiction, it appears that no final decision has yet been made by the authorities in Greece as to whether or not to proceed with charges against the defendant. Consequently a possible trial date remains speculative and indeterminate.

18. This is so despite the fact that in Greece, on 5 July 2016, the plaintiff provided the Greek prosecuting authority with her claims that the defendant committed crimes against her, as defined by Article 336 par 1 of the Greek Criminal Code and the claim that he violated Drugs Greek Law 4139/2013.

19. On 14 November 2016, after a preliminary police investigation, the police in Greece sent a file, inter alia, to the Prosecution Authority of Syros. On 2 December 2016, the Prosecutor pressed criminal charges against the defendant and ordered the Investigator Judge to conduct a formal investigation of the alleged crimes. After some representations by the plaintiff for the expedition of that procedure, the following events occurred, as is explained in the following passage extracted from the expert report of Mr Ninopoulos, at page 2, paragraph 3.1.4:

“On 18 September 2017, an arrest warrant with number 8/2019 was issued by the Investigator Judge of Syros against Stavropoulos ordering that Stavropoulos be brought in front of him and to testify for the crimes that Levis alleges that have been committed. However, after an application by Stavropoulos to the Council of Judges of the Magistrate's Court of Syros, the arrest warrant was annulled for the reasons therein and Stavropoulos was invited to testify after he obtained a full copy of the file. Stavropoulos then presented himself with his two lawyers, Dimitrios Ninopoulos and Theodoras Ninopoulos, before the investigator Judge and the Prosecutor of Syros and gave his testimony and explanations regarding the crimes allegedly committed by him. Following this, by force of order 29/2018 of the Investigator Judge of Syros, the main investigation was concluded on 19 June 2018, and by order 29/2018 of the Investigator Judge of Syros, a bail of 5,000 Euros was imposed on Stavropoulos.”

20. On 24 April 2019, after considering and evaluating the evidence collected by the Mykonos police and the appointed Investigator Judge during the main investigation, the Council of Judges of the Magistrates Court in Greece decided that no charges should be made against the defendant arising from the events at Mykonos on 2 July 2016.

21. Following a review of that decision, at the instigation of the plaintiff, the Greek Prosecutor appealed that decision. Thereafter a procedural fog has followed. There have been various applications for cessation. At present, there is no conclusive answer to the question of whether there is any current pending charge for the defendant to answer at a trial in Greece.

22. As at 10 May 2020, the position as identified by the defendant’s lawyers in Greece, is as set out at paragraph 4.2 on page 5 of Mr Ninopoulos’ report, as follows:

“We are awaiting the suggestion of the Prosecutor of the Court of Appeal of the Aegean and as the lawyers of Mr Stavropoulos we will submit a memorandum addressed to council of the court of appeal of the Aegean requesting the acquittal of Mr Stavropoulos from all charges, as it was ruled initially by the Council of Judges of the Magistrates Court of Syros. The judges of the council of the court of Appeal of the Aegean will have to decide, inter alia, again whether this case should go to trial or not. It has to be mentioned, that Mr Stavropoulos will have the right to apply (again) to the Prosecutor of the Supreme Court of Greece to cancel/annul such decision, if there are grounds for such cancelation / annulment.”

23. That position has been overshadowed to some degree by the fact, that as explained by Mr Ninopoulos, all courts in Greece are presently closed due to the coronavirus pandemic. An update was said to have been expected in mid-May 2020, but no evidence of such an update has been adduced by the defendant, who carries the onus of proof on that issue.

24. Mr Ninopoulos has identified the fact that there are presently considerable delays in Greek courts considering cases. This adds to the present uncertainty in answering the central question of when, if at all, in the coming months, a decision will be made on whether the defendant will be required to face charges.

25. This is in the context that if a decision is made that is adverse to the defendant, he “will have the right to apply (again) to the Prosecutor of the Supreme Court of Greece to cancel/annul such decision”: Report of Mr Ninopoulos, page 5, paragraphs 4.2 and 4.4.

26. In my view, the process described by Mr Ninopoulos has the hallmarks of indeterminacy that will serve to prejudice the plaintiff’s right to a timely trial of her case in this Court. In such circumstances, the defendant’s application for a stay requires that the dictates of justice be weighed: s 58(2) of the Civil Procedure Act 2005.

27. Counterbalanced against the fact of significant delays affecting the determination of whether the defendant will be required to face a trial in Greece on the alleged facts which base the plaintiff’s claim against him, is the plaintiff’s otherwise unfettered right to access justice in this jurisdiction. She is entitled to have her case heard with due expedition, especially where there have been no procedural defaults on her part, unlike, for example, the defendant’s considerable delay in filing a defence, and only attending to that requirement at the eleventh hour, which suggests a delaying tactic.

28. In that context, I consider it to be contrary to the dictates of justice for the plaintiff to have her case delayed on the indeterminate grounds proposed by the defendant.

29. To justify the stay sought, the defendant must show that there is a real and not merely a notional risk that the continuation of the plaintiff’s civil litigation in this jurisdiction could lead to a potential miscarriage of justice in the criminal proceedings in Greece. In that regard, the defendant has the burden of showing that a potential outcome of that nature outweighs the plaintiff’s ordinary right to have her claim heard without delay: Gipsy Fire v Truth Newspapers Pty Ltd (1987) NSWLR 382, at pp 386 – 387.

30. In that decision, five relevant elements of potential prejudice were identified as facing a defendant in connection with parallel civil and criminal proceedings, as follows.

31. First, there is the prospect of a premature disclosure of the defendant’s case in the criminal prosecution. In my view, that concern is adequately met by the defendant having already denied, on oath, in his sworn defence, the factual correctness of the foundations of the plaintiff’s case. The defendant argued that he could be exposed to a potential prejudice of this kind by possible nuances that might emerge from a skilful cross-examination of him in the civil proceedings, should he choose to give evidence. I find that argument unpersuasive. In the face of the defendant’s factual denial, whether in the civil or criminal proceedings, it seems unlikely he would give inconsistent answers to that which he has already sworn to, unless he concedes that he swore incorrectly, which seems unlikely. In those circumstances, the prevailing dictates of justice suggest that the potential prejudice to the defendant from exposure of incorrect evidence is unlikely to arise.

32. Secondly, there may be the possibility of interference with opposing witnesses at a trial. In my view, this is speculative. I am not persuaded that this is a relevant factor in this case, where the defendant has not identified the testimony of any such witnesses, and where the substance of the plaintiff’s case against the defendant is that the alleged assault took place at a time when no-one but the plaintiff and the defendant were present.

33. Thirdly, there is a possible prejudicial effect from adverse publicity being given to the civil litigation which might influence jurors in a criminal trial. That factor has no relevance to this case, where the prosecution, if it ever takes place, would occur in Greece, and not in this jurisdiction.

34. Fourthly, there is the suggestion that requiring the civil case to proceed before the criminal proceedings will have a negative impact on the defendant’s right to silence in a criminal prosecution. In my view, the evidence of Mr Ninopoulos does not go so far as to support a concern along those lines. The evidence of Mr Ninopoulos does not suggest the existence of a substantive law in Greece providing a right to silence. I am therefore insufficiently informed on that subject. On this question, it is noted that at paragraph 3.1.4 of Mr Ninopoulos’ report, as cited at paragraph [19] above, the defendant has already given his testimony and his explanation of the factual circumstances to the Greek Prosecutor, which suggests if the defendant had a right to silence it has not been exercised. In that regard, as is evident from an earlier report dated 21 August 2019 from Mr Ninopoulos, which is Annexure “A” to the affidavit of Ms Harrison sworn on 5 May 2020, it is plain that the defendant, is there referred to by the initials “NS”. It appears he has already given his testimony to the Investigating Judge in Greece on 6 July 2016: Section C, Item 10 on page 4 of Mr Ninopoulos’ 21 August 2019 report.

35. Finally, and separate to the above considerations, is Mr Ninopoulos’ statement as follows:

“In the Greek Legal System, there is no equivalent crime to an assault as defined in the English Legal System.”

That apparent jurisdictional disparity suggests that, apart from the existence of a common factual basis between these proceedings and those which have been investigated by the police in Greece, there is an absence of a parallel character or concurrency between the two sets of proceedings in the different jurisdictions.

36. As a possible trial date in Greece seems indeterminate, I consider that on balancing the respective procedural rights and entitlements, the defendant’s application for a stay should be refused. A stay leaves the case in a procedural limbo where no procedural steps may be taken. That would be unduly prejudicial to the plaintiff. I had considered placing the matter in the Not Ready list for a relatively short time, but on reflection, I consider that case management would be a more appropriate measure. It therefore remains to consider appropriate case management orders.

37. There are elements within the evidence that when viewed in combination, suggest the need for some rigour to be applied in the timetable for further case management of these proceedings. Those considerations include:

1. The fact that the defendant’s representatives had earlier encouraged the plaintiff to delay filing her proceedings on account of the outstanding legal issues in Greece, as is evident from Ms Harrison’s first affidavit sworn on 5 May 2020;

2. The adverse psychological impact that the events have had and continue to have on the plaintiff, as explained in the report of Associate Professor Carolyn Quadrio, dated 21 February 2019, which is annexed to Ms Harrison’s affidavit sworn on 5 May 2020;

3. The fact that the defendant’s side, in not replying in a timely manner to procedural communications from the plaintiff’s solicitor on 25 May 2020, as deposed by Ms Harrison in her second affidavit that was sworn on 10 June 2020, has caused needless delay and expense in addressing the interlocutory issues thrown up for consideration in this case, quite apart from the earlier attempts made on behalf of the plaintiff to seek to press the defendant into filing a defence in order to close the pleadings.

Disposition

38. For the above reasons I consider that the defendant’s notice of motion filed on 23 March 2020 should be dismissed. The plaintiff’s notice of motion filed on 7 May 2020 should be allowed as to the part that is not made otiose by the recent filing of the defendant’s defence.

Costs

39. I consider that the dictates of justice require costs should follow the event in both motions, and that the plaintiff should have leave to proceed to assess those costs forthwith.

Procedural orders

40. On the defendant’s notice of motion filed on 23 March 2020, I make the following orders:

1. The defendant’s motion is dismissed ;

2. The defendant is to pay the plaintiff’s costs of the dismissed motion on the ordinary basis unless otherwise ordered;

3. The costs the subject of order (2) above may proceed to assessment forthwith.

41. On the plaintiff’s notice of motion filed on 7 May 2020, I make the following orders:

1. I note that the defendant has filed his defence at 5.59pm on 10 June 2020, thereby making it unnecessary for further orders to be made for the filing of his defence;

2. Within 3 calendar months of today’s date, the defendant is ordered to serve any medical and liability reports and related documents upon which he seeks to rely at a trial, including witness statements, but for the time being, excluding his own statement;

3. The defendant is to pay the plaintiff’s costs of the motion on the ordinary basis unless otherwise ordered;

4. The costs the subject of order (2) above may proceed to assessment forthwith.

Case management orders

42. I make the following case management orders:

1. The proceedings are to be re-listed before me for case management directions at 10.00am on Friday 18 September 2020;

2. Pursuant to UCPR r 31.4(1), within 28 days of today’s date, the plaintiff is to serve on the defendant affidavit evidence comprising her evidence-in-chief and that of any other factual witnesses that she intends to call to give evidence in her case;

3. Within 28 days of today’s date, the plaintiff is to serve on the defendant all medical evidence upon which she intends to rely at a hearing;

4. At the directions hearing on Friday 18 September 2020, the defendant is to provide the best available current evidence of the procedural status of the investigation in Greece of criminal charges being considered against him arising out of the subject matter of these proceedings;

5. Pursuant to s 26 of the Civil Procedure Act 2005 (NSW), on Friday 18 September 2020, the parties are to inform the Court of the date and time appointed for a mediation of the proceedings, and the name of the appointed mediator. In the event the parties are unable to agree on a named mediator and a date for the mediation to proceed, the Court will nominate a suitable mediator, and a suitable date for mediation.

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Decision last updated: 12 June 2020