Lovric v State of New South Wales (No 2)

[2019] NSWDC 157

District Court

New South Wales

Medium Neutral Citation:

Lovric v State of New South Wales (No 2) [2019] NSWDC 157

Hearing dates:

21 March 2019

Date of orders:

22 March 2019

Decision date:

22 March 2019

Jurisdiction:

Civil

Before:

P Taylor SC DCJ

Decision:

(1)   Amended notice of motion filed 22 June 2018 dismissed.
(2)   Plaintiff to pay the defendant's costs.

Catchwords:

JUDGMENTS AND ORDERS — Amending, varying and setting aside — Alleged suppression of evidence - Failure to answer subpoenas - Discretion

Legislation Cited:

Civil Procedure Act 2005, s 56
Uniform Civil Procedure Rules 2005, r 33.6, r 33.7, r 36.15, r 36.16

Cases Cited:

Briginshaw v Briginshaw (1938) 60 CLR 336
Kerry Albert Pty Ltd t/as Kerry Albert & Co v Fuller (No 2) [2018] NSWDC 383
Lovric v State of New South Wales [2018] NSWDC 148
State of New South Wales v Nash [2016] NSWCA 98

Category:

Procedural and other rulings

Parties:

Denis Lovric (plaintiff)
State of New South Wales (defendant)

Representation:

Counsel:
Mr M Hutchings (defendant)

 

Solicitors:
Sparke Helmore Lawyers (defendant)

  Other:
Plaintiff (self-represented)

File Number(s):

2017/170707

Publication restriction:

None

Judgment

A.  INTRODUCTION

1. Denis Lovric was forcibly arrested by two police officers on 2 May 2015, and was charged with offensive language, assault police and resist arrest.  He pleaded guilty to the first and was acquitted of the other two charges.  He sued the State of New South Wales for assault and battery, unlawful imprisonment and malicious prosecution, allegedly committed by one or both of the officers.  Those proceedings were dismissed by this Court on 13 April 2018 after a hearing where Mr Lovric was represented by a solicitor and barrister. [1]   Mr Lovric, self-represented, applies to set aside the civil judgment.

   1. Lovric v State of New South Wales [2018] NSWDC 148.

B.  ISSUES

2. Mr Lovric relies upon r 36.16(1) and (3A) of the Uniform Civil Procedure Rules 2005. As his notice of motion was filed on 26 April 2018, and the judgment was given and entered on 13 April 2018, subr 36.16(1), which relates to notices of motion to set aside or vary a judgment before it is entered, has no application. Mr Lovric did not submit to the contrary.

3. The notice of motion was filed within the 14 days allowed in subr (3A).  In that event, "the court may determine the matter, and (if appropriate) set aside or vary the judgment or order under subrule (1), as if the judgment or order had not been entered”.

4. Although the notice of motion filed by Mr Lovric contained a plethora of grounds, some months prior to the hearing Mr Lovric abandoned all grounds but one, and adhered to that limitation at the hearing.  That ground in proposed order 1(e) of the amended notice of motion stated:

“1 The judgement entered in favour of the defendant, the State of New South Wales, on 13 April 2018 is set aside or varied under r 36.16(1) and r 36.16(3A) of the Uniform Civil Procedure Rules 2005 (NSW) on the grounds, that it is reasonably probable, as alleged:

…

e) legal practitioners (James Chlohesy and/or Jesse Pereira who acted on behalf of the State), suppressed relevant evidence being:

• A log of events from the Computer Aided Dispatch (CAD) system relevant to the relevant officers' attendance at Mr Lovric's home on 2 May 2015 requested under subpoena (filed 30 June 2017) and again under notice to produce (file 3 April 2018)

• The VKG (NSW Police Force radio call sign) audio file from the Radio Dispatch system that was broadcast to the relevant officers in their police car on 2 May 2015 and/ or the transcript of this recording requested under subpoena (filed 30 June 2017)

• The Person of Interest (POI) summary in the name of Denis Lovric available to officers in their vehicles on 2 May 2015, requested under subpoena (filed 24 January 2018)

• The original version of the prosecutor, Constable Elzemetter's [sic] notebook requested under subpoena (filed 30 June 2017) and again under subpoena (filed 24 January 2018).”

5. Thus, the issues in the amended notice of motion are:

1. did the State fail to produce in answer to a subpoena the CAD log, the VKG audio file and any transcript, the Denis Lovric POI summary, and the notebook of Constable Ellzmeter, or any of them;

2. did that failure constitute a suppression of relevant evidence by the solicitors for the State;

3. did any failure (in (1)) or suppression (in (2)) warrant this Court exercising its discretion under subr (3A) to set aside the judgment; and

4. in any event, what orders, including in respect of costs, ought to be made. 

C.  PRELIMINARY MATTER

6. A question arose as to whether a r 36.16 application to set aside a judgment was the appropriate procedure in the circumstances of allegations of suppression of evidence or failure to produce documents at trial.

7. In State of New South Wales v Nash [2016] NSWCA 98, Barrett AJA considered an appeal from the State in proceedings similar to those considered in the judgment against Mr Lovric, save that the plaintiff in that case was successful. The appeal in that case raised contested issues of fraud and perjury. The appellant was the State.

8. Barrett AJA reviewed the authorities [2] and held:

“55. The case law thus indicates that an important consideration is whether there is, or is likely to be, factual dispute on the issue of fraud. The appeal court is more likely to retain and determine the matter if fraud is admitted or the evidence of fraud is incontrovertible. But if there are likely to be dispute about the facts, the preferred course is to see the matter of fraud determined in a trial court.

56. There are two reasons for this. First, the appellate court setting is not conducive to cross-examination and determination of issues of credit based on raw testimony. A judge sitting alone is much better equipped to deal with such matters. Second, pre-trial processes are apt to distil factual issues in an efficient way that is of particular relevance to fraud cases. As was said in Permanent Trustee Australia Ltd v FAI Insurance Co Ltd (in liq) [2003] HCA 25; 214 CLR 514 at [38], ‘[a]n allegation of fraud should be clearly and distinctly pleaded and put’, or, as Williams J put it in a case of the present kind, [3] ‘[i]n actions based on fraud the particulars of the fraud must be exactly given and the allegation established by the strict proof such a charge requires’.” [3]

2. At [45]-[54].

3. At [55]-[56].

9. Similar principles appear to apply to an application under UCPR 36.16, not because this trial court is ill equipped to investigate and deal with misconduct in litigation, but because a r 36.16 application does not envisage the usual pre-trial processes. Such an application does not commonly involve the resolution of contested facts, but rather when the facts forming the basis of the application are either agreed or incontrovertible. Circumstances where a r 36.16 application is appropriate include where the judgment manifests a misapprehension of the facts or the law; where a party has been denied the opportunity to be heard or submissions are not considered on a determinative issue in the proceedings; where readily identifiable, rectifiable, inadvertent errors are sought to be corrected thereby saving the complication and expense of an appeal; or where a centrally relevant issue has not been determined. [4] Whilst this list is not intended to be exhaustive, the nature of the circumstances listed underline that the principle of finality of litigation remains an important factor in this area. Rule 36.16 is not intended to serve as an alternative right of appeal or a general opportunity to re-agitate issues determined against a party. The interests of justice are considered under r 36.16 in the context of these principles.

   4. Kerry Albert Pty Ltd t/as Kerry Albert & Co v Fuller (No 2) [2018] NSWDC 383 at [66].

10. An allegation of suppression of evidence by the State’s solicitors is a serious allegation, described by the State as "akin to perverting the course of justice".  The allegation is perhaps analogous to a claim of fraud in the litigation.  A proper resolution of such an allegation would involve pleadings and other pre-trial procedures "apt to distil factual issues in an efficient way".  The proof of that allegation, if contested, would not be straightforward, and would likely involve fresh evidence. 

11. UCPR 36.15 deals with the setting aside of judgments obtained "irregularly, illegally or against good faith". That may be an appropriate avenue by which to ventilate the issues raised by a claim of a suppression of evidence. But no reliance was placed upon r 36.15. Alternatively, fresh proceedings may be required either in this Court or the Supreme Court, but as none have been taken that matter need not be determined on this application.

12. In this application, there was no specification of the precise misconduct, either by pleadings or otherwise.  Nor was there evidence in support. 

13. I was not persuaded that an application under r 36.16(3A), at least in the manner and form it was advanced, was an appropriate means by which Mr Lovric could ventilate the allegation of a suppression of evidence. But in case I am wrong, I shall proceed to deal with the other issues.

D.  RESPONSE TO SUBPOENAS

14. Mr Lovric issued two relevant subpoenas.  It is not necessary that the schedule to the subpoenas be set out in full.  The first subpoena filed 15 June 2017 referred to "CAD entries/messages, police notebook entries" "relating to charges brought against the Plaintiff relating to the subject incident occurring on 2 May 2015", and also related to "a complaint of a missing vehicle on 2 May 2015 by Mr Lovric".  There was also a reference in the first subpoena to "CAD entries/messages police notebook entries" related to events prior to 2 May 2015, which are not relevant to the nonproduction and suppression alleged by Mr Lovric. 

15. No issue was taken about the differing dates specified in the motion (see [4] above) and in the subpoenas.

16. The second subpoena filed 25 January 2018 referred to the "original only of the police notebook of Constable Ellzmeter", and also the "POI Web Link Summary of ‘Denis Lovric’", as at 2 May 2015.  The reference to a later POI is not relevant to this application. 

17. There was no express reference in either subpoena to the VKG audio file or transcript. Although there was some negotiation between the parties as to precisely what documents were required and correspondence was tendered on this application, there was no reference in that correspondence to the VKG audio file or transcript.

18. In the result, I am satisfied that the subpoenas required production of the POI summary of Mr Lovric, the police notebook entries relevant to the events of 2 May 2015, and the CAD messages, but not the VKG audio file or transcript. Some of the more general words in the subpoenas might, on a proper construction, embrace the VKG files, although I was not comfortably satisfied of that, especially when they were not identified in any correspondence.

19. The other component of this issue concerns the material produced in answer to these subpoenas. There was no direct evidence of what was produced. Mr Lovric prepared a long affidavit, but read only two paragraphs of it, and those paragraphs contained no evidence identifying the extent of production. 

20. Both Mr Lovric and the State tendered correspondence related to the ambit of the subpoenas, although Mr Lovric argued that the obligations imposed upon the recipient of a subpoena result from the document itself, and cannot be affected by the conduct of the issuing party. Though true in some respects, it is incorrect in at least one respect, for the parties can, irrespective of the terms of the subpoenas, agree that an original document is not required to be produced. [5]  

    5. UCPR 33.7(4) cf UCPR 33.6(6).

21. However, there does not appear to be any more general provision in the rules allowing for the issuing party to excuse the addressee of the subpoena from compliance in whole or in part with its terms. Yet there is a notorious practice of parties negotiating concerning the acceptable ambit of a subpoena without the need for a formal application to set the subpoena aside.  Sometimes only certain paragraphs are "called upon".

22. A legal basis for that practice might be found in the law of estoppel, or may arise from the overriding purpose in s 56 of the Civil Procedure Act 2005, that the rules are to be construed so as to enable a cheap, quick, and just determination of the real issues in the proceedings.  The ability of the parties to agree to limit production to the materially relevant documents would seem to serve that end.

23. In any event, I think that any agreement between the parties on the ambit of the documents required must be relevant both to the question of whether there was a "suppression of evidence", and the manner in which any discretion of the Court might be exercised, even if such an agreement does not impact directly on the documents the recipient is obliged to produce.

24. On 26 February 2018, [6] after the service of the second subpoena, the State’s solicitor wrote to Mr Lovric's solicitor, noting that the notebook entry of Constable Ellzmeter (presumably a copy) had previously been produced, but queried whether there was a legitimate forensic purpose in requiring the production of the residue of the notebook.  The letter indicated that without a written response, the Commissioner of Police would assume that Mr Lovric accepted this objection, and requested a response if that assumption was incorrect.  There was no response thereafter indicating a need for production of the residue of the notebook. [7]  

    6. Exhibit 1.

    7. Exhibit 4.

25. However, on 29 March Mr Lovric's solicitor requested any police attending the hearing to attend with original police notebooks. [8]   There was no evidence as to whether that request was complied with, [9] although Constable Ellzmeter did not attend the hearing so the request on its terms had no application to him.

    8. Exhibits 2 and 3.

    9. Cf Exhibit 3.

26. Accordingly, there is evidence of production of "the notebook entry made by [Constable] Ellzmeter in relation to the matter", presumably a copy, but no evidence of the existence or extent of any redaction from the original.  I would infer from the correspondence that the original notebook was not produced. 

27. It is to be expected that a police officer's notebook would have material irrelevant to the particular matter before the Court, but which is confidential and should not be disclosed; and that a subpoena requiring such irrelevant material is liable to be set aside.

28. In these circumstances, I am not satisfied that there was any material non-compliance with the subpoenas in respect of Constable Ellzmeter's notebook.  I regard the non-compliance as technical only, especially in the circumstances here, where the nonproduction of the original notebook, or any part of it, was not the subject of any application at trial.

29. Mr Lovric submitted that the most important issue he raised was in respect of the notebook.  It was the only document among those subpoenaed and raised in this application that might relate directly to the incident the subject of the charges and the civil proceedings.  The other documents, the CAD entries and the POI summary, if at all relevant, are documents created and provided prior to the relevant incident.

30. The correspondence indicates that there were no documents to produce in answer to some paragraphs of the subpoenas.  There was reference to a computer record in the trial,[10] perhaps the CAD record, which may lead to the inference that it was produced.  The parties accepted before me that a CAD record was produced, although Mr Lovric asserted that it was the wrong one.  There was no evidence to support that assertion.  As I indicated earlier, there was no argument at the trial about a failure to produce documents. 

    10. See Lovric at [33].

31. Accordingly, I was not satisfied on the evidence before me that there was any material failure to produce documents answering the subpoenas.

E.  SUPPRESSION OF EVIDENCE

32. Mr Lovric alleges that the State’s solicitors suppressed evidence, a grave allegation as I indicated earlier.  There was no evidence additional to that to which I have referred which would support his claim.  The principles in Briginshaw v Briginshaw [11] would require that there be cogent evidence to satisfy the civil onus. Apart from the absence of evidence already mentioned, there was no evidence about what the State’s solicitor did or believed, and in particular, no evidence of misconduct, so the allegation must be rejected.

    11. (1938) 60 CLR 336.

F.  DISCRETION

33. I propose to make some brief comments about the discretion in r 36.16(3A). The power in r 36.16 to set aside a judgment was recently considered in this Court by Dicker SC DCJ in Kerry Albert Pty Ltd t/as Kerry Albert & Co v Fuller (No 2) [2018] NSWDC 383. After considering the authorities, [12] his Honour then set out some principles as follows:

    12. At [58]-[65].

“66. Having regard to my view on the penalty issue, the court must consider whether it should exercise its discretion to set aside the orders made on 14 September 2018 pursuant to Part 36.16(3A) of the UCPR. The power in that rule is discretionary but it must be exercised judicially. It must be exercised taking into account the matters which are referred to in the Court of Appeal cases I have set out above and having regard to the public interest in maintaining the finality of litigation. It seems to be clear that the following principles apply:

(a) The court may reopen its judgment if it has proceeded on a misapprehension as to the facts or the law, where there is some matter calling for review or where the interests of justice so require;

(b) The jurisdiction to recall a judgment or order extends beyond cases where a party is not given an opportunity to be heard on an issue held to be determinative;

(c) There is a heavy burden on a party seeking to reopen orders pursuant to UCPR Part 36.16(3A). It is well-established that the jurisdiction to set aside orders should be exercised sparingly and with caution, having due regard to the importance of the finality of litigation;

(d) The rule is subject to the ‘overriding purpose’ of facilitating the ‘just, quick and cheap resolution of the real issues’ between the parties to litigation in s 56 of the Civil Procedure Act 2005 (NSW);

(e) The rule does not give a licence to disgruntled litigants to re-agitate issues that have been determined against them;

(f) Readily identifiable, readily rectifiable, inadvertent errors may be corrected without the complication and expense of an appeal;

(g) The importance of the matter calling for review is relevant;

(h) The prejudice to the other party is relevant;

(i) A clear example where the power should be exercised is where the court does not determine a centrally relevant issue, or fails to consider submissions which, if accepted, could materially affect the outcome of a case;

(j) Whether there has been any fault on the part of the other party is an important matter to consider;

(k) The final test is what is in the interests of justice having regard to the objective of the finality of litigation.”[13]

13. At [66].

34. Mr Lovric relied on some of these principles, in particular items (c), (d), (h), (i) and (k).  In my view, none of them assist him.  The matters he complained of were not “[r]eadily identifiable, readily rectifiable, inadvertent errors", or a failure to "determine a centrally relevant issue", or a failure "to consider submissions".  Rather, the matters raised by Mr Lovric involve an attempt to re-ventilate issues determined at trial, on the basis that certain evidence was not, but should have been, before the Court.  Thus, this is more closely a situation of "disgruntled litigants" seeking to "re-agitate issues that have been determined against them" by referring to the existence of possible documents not in evidence and that were neither tendered nor the subject of application at trial.

34. Mr Lovric's application followed a finding in favour of the police account on the relevant events.  Mr Lovric says that the account accepted in the judgment was incorrect, and other documents not produced would prove that to be so.  But no issue was taken at the trial about the absence of documents and no explanation for that failure was given, other than to attribute it to the lack of competence of his legal representation (also not a matter raised at trial).  There was no evidence that the documents would assist in any probative way to determine the issues at trial.  The documents were not before me on this application, and there is no evidence of any default, let alone misconduct, in the State in not producing the documents. 

35. All these circumstances militate against relief under r 36.16(3A).

G.  CONCLUSION ON THE ISSUES

37. The application should be dismissed because the factual matters said to found the relief were not established, and the discretionary factors are against relief.

H.  COSTS

38. Costs should follow the event.

I.  ORDERS

39. I make the following orders:

1. Amended notice of motion filed 22 June 2018 dismissed.

2. Plaintiff to pay the defendant's costs.

**********

Endnotes

Decision last updated: 06 May 2019