Pitchuev v State of New South Wales
[2023] NSWDC 592
•10 November 2023
District Court
New South Wales
Medium Neutral Citation: Pitchuev v State of New South Wales [2023] NSWDC 592 Hearing dates: 10 November 2023 Date of orders: 10 November 2023 Decision date: 10 November 2023 Jurisdiction: Civil Before: Neilson DCJ Decision: 1. I grant leave to the Plaintiff to file and serve an amended SOC in the form of the revised amended SOC annexure “C” Affidavit of Wilson Tighe of 30 October 2023 subject to an appropriate amendment to par 2(b) within 14 days.
2. I vacate the hearing date of 27 November 2023.
3. I grant leave to the NSW Crown Solicitors Office to take over carriage of the matter on behalf of the Defendant.
4. I order the Plaintiff to pay the costs of the Notice of Motion and the costs thrown away from the vacation of the hearing date of 27 November 2023.
5. I order the Plaintiff to pay the costs thrown away from the amendment in par [1].
6. Stood over before the Judicial Registrar 3 weeks from today.
Catchwords: CIVIL – PRACTICE AND PROCEDURE – Amendment to Statement of Claim to add Defendant’s vicarious liability for alleged wrongdoing by the Office of the Director of Public Prosecutions – If allowed, necessary to adjourn 7 days – Fixed for hearing in near future – If amendment not made, Plaintiff might be unsuccessful in his claim for malicious prosecution – Amendment necessitated a change of solicitors for Defendant because of Government policy – Costs of motion and adjournment granted to Defendant as application made very late.
Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited: Nil.
Texts Cited: Nil.
Category: Procedural rulings Parties: Plaintiff – Michael Pitchuev
Defendant – State of New South WalesRepresentation: Plaintiff – Ms Goodhand
Defendant – Mr Buterin
File Number(s): 2022/00143115 Publication restriction: Nil.
Judgment
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HIS HONOUR: By a notice filed on 9 October 2023, the Plaintiff moves for leave, pursuant to Uniform Civil Procedure Rules 2005 r 6.24, for the "Office of the Director of Public Prosecutions" (“ODPP”) to be added as a Defendant. The Plaintiff also seeks leave to file and serve an Amended Statement of Claim.
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The first prayer for relief is no longer pressed. However, the Plaintiff does seek leave to file and serve an Amended Statement of Claim. There are two versions of what the Amended Statement of Claim ought be. The more recent version is the revised proposed Amended Statement of Claim, which is undated, but which is annexure C to the affidavit of Mr Wilson Tighe sworn on 30 October 2023, which is exhibit BB.
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The police who are the persons for whom the State of New South Wales is sued and who are named in the originating process oppose the proposed amendment, but the Crown Solicitor who acts for the Director of Public Prosecutions does not oppose it. There is, however, one vice in the revised proposed amended statement of claim in paragraph 2B which I have drawn to the attention of the parties, and I am confident that the Plaintiff will, when he files the amended statement of claim, have attended to the amendment of paragraph 2B of the revised proposed amended statement of claim to which I have earlier referred.
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The proposed new pleading is formally opposed by the police. The filing of the revised proposed amended statement of claim with the amendment that I have suggested to the parties to paragraph 2B, is opposed by the Defendant at the current time because it will invariably result in the adjournment of the hearing of this matter, and the matter is specially fixed for hearing for seven days, commencing on 27 November 2023. Learned Counsel for the Plaintiff accepts that if I grant the pleading relief which she seeks, that it is inevitable that the hearing date be vacated, and the matter will have to be returned to the Judicial Registrar to allocate a new seven day hearing period, which will probably be approximately one year hence.
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It is common ground that when proceedings were commenced in this Court, the State of New South Wales was alleged to be vicariously liable for the acts, neglects, and defaults of certain police officers. A defence was filed by Norton Rose Fulbright.
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It is common ground that proceedings had been commenced in the Local Court, against the Plaintiff by NSW Police on 17 February 2020. On 25 February 2020, those proceedings were referred by the NSW Police to the ODPP. On the day following that referral to the ODPP, the Plaintiff pleaded not guilty to each of the charges. Subsequently, a number of the charges were withdrawn and dismissed, and eventually, the remaining allegations against the Plaintiff were dismissed.
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When one reads the pleadings in this Court, one wonders why so many members of the New South Wales Police Force were involved, but that is addressed inferentially in a brief factual background provided to me by learned counsel for the Defendant in MFI 1, namely that at the relevant time, that is when it was alleged that the Plaintiff had committed a number of criminal offences, he was, in fact, a probationary constable of police.
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The simple fact is that the solicitor with the carriage of the matter at the DPP is currently engaged in a criminal trial which is due to finish on 21 November, but I can assure those who listen or read what I say that criminal trials often overrun. As I have said earlier, the current civil proceedings are listed for hearing on 27 November 2023, and that would only leave six days, which probably includes a weekend, when the solicitor at the DPP who had the carriage of the matter for a period of time in the Local Court is available to give instructions. In any event, it is clear that because two New South Wales government agencies would be involved in the proceedings if the revised proposed amended statement of claim is filed and served, that the proceedings would have to be transferred from Norton Rose Fulbright to the Crown Solicitor.
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The State currently objects to the Plaintiff's application to file and serve the amended statement of claim because it would involve the throwing away of the hearing date on 27 November and would hardly be involved in the "just, quick, and cheap" disposition of the real issues before the Court. That is so, but equally, if the adjournment were not granted, one could see the Plaintiff to be in grave difficulty in seeking to establish his claims of false imprisonment and malicious prosecution.
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For those reasons, I grant leave to the Plaintiff to file and serve an amended statement of claim in the form of the revised proposed amended statement of claim, which is annexure C to the affidavit of Mr Wilson Tighe of 30 October 2023, which is exhibit B B, subject to an appropriate amendment being made to paragraph 2B of that document.
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I vacate the hearing dates commencing on 27 November 2023. I grant leave to the Crown Solicitor to take over the carriage of the matter on behalf of the Defendant. I order the Plaintiff to pay the costs of the notice of motion and the costs thrown away by the vacation of the hearing date of 27 November 2023. The order, including the costs of the notice of motion, is because it is clear from the pleading filed on 9 October 2022, paragraph 51(i)(C), that the Defendant alleged that on 25 February 2020, the investigation of the charges against the Plaintiff was transferred to the ODPP, and the defence denied that Detective Sergeant Whiting was the prosecutor thereafter. However, as I said, the notice of motion was not filed until 9 October 2023, ten days less than one year after the filing of the defence.
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Any other orders sought?
BUTERIN: Yes, your Honour. For the avoidance of any doubt, the costs order that I've recorded as being made was order the Plaintiff to pay the Defendant's costs of the notice of motion, and the costs thrown away.
HIS HONOUR: And the costs thrown away by the adjournment.
BUTERIN: By reason of the adjournment.
HIS HONOUR: Yes.
BUTERIN: For the avoidance of doubt, I ask for that order to include, "And the costs thrown away by reason of the amendment," so there's no doubt that because there will be costs necessarily now thrown away by reason of this amendment because the costs of the motion, on one view, might only encompass the costs in preparing for this motion, the evidence in support of the motion, and the appearance today, and the costs thrown away by reason
of the adjournment might only encompass preparation costs of the hearing that may now be wasted. What I seek as well is an order that costs thrown away by reason of the amendment be paid by the Plaintiff because the State to date has met a pleaded case which is now changed, and there will be costs that are necessarily thrown away.
HIS HONOUR: Yes. What do you say, Ms Goodhand?
GOODHAND: Your Honour, in my submission, it should be confined to the costs thrown away in the hearing. All of the preparation is largely going to be able to be utilised in the upcoming new hearing. The counsel are also likely to be the same. As I understand it, the costs of counsel and cancellation fees aren't included pursuant to government policy, so much of what has been done can still be used for the upcoming hearing. Also, this was notified two months ago, so it's a different scenario, for example
HIS HONOUR: Yes, but the revised proposed amended statement of claim was only put forward in of exhibit B-B, the affidavit of 30 October 2023, and that was in order to respond to the criticism made of it by the Crown solicitor. But those costs would be costs of the notice of motion.
BUTERIN: Your Honour, there's one important matter I overlooked to raise and submit in support of this application for an order.
HIS HONOUR: It's already 20 past. Sorry, 10 past.
BUTERIN: Sorry. I'll be brief.
HIS HONOUR: You better be.
BUTERIN: In terms of the costs thrown away by reason of the amendment, the amendment necessitates the transfer of the file from Norton Rose to the Crown Solicitor's Office. The Crown Solicitor's Office will incur costs in conducting its own investigations and meeting the allegations in the statement of claim.
HIS HONOUR: Yes. Someone will have to spend the time getting it under control.
BUTERIN: That's so.
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HIS HONOUR: I understand. I follow. The costs order is to include the costs thrown away by the making of the amendment at such a late stage.
Decision last updated: 02 February 2024
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