PP v DD - [2021] NSWSC 1157

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: PP v DD [2021] NSWSC 1157
Hearing dates: 12 July 2021
Date of orders: 12 July 2021
Decision date: 12 July 2021
Jurisdiction: Common Law
Before: Cavanagh J
Decision:
(1) The plaintiff’s application for paragraphs 3 and 4 of the amended defence to be struck out is dismissed.
(2) Leave for the defendant to rely on three witness statements is refused.

Catchwords:
CIVIL PROCEDURE – Court administration – Case management – Defendant seeking to serve evidentiary statements on the eve of trial – Leave refused to rely on statements
CIVIL PROCEDURE – Pleadings – Striking out – Abuse of process – Application for paragraphs of a defence to be struck out as they deny events which were the subject of a criminal conviction

Legislation Cited:
Crimes Act1900 (NSW)
Evidence Act 1995 (NSW)

Cases Cited:
Hunter v Chief Constable of the West Midlands Police [1982] AC 529
Tomlinson v Ramsey Food Processing Pty Ltd (2015) 256 CLR 507; [2015] HCA 28
Walton v Gardiner (1993) 177 CLR 378; [1993] HCA 77

Category: Procedural rulings
Parties: PP (Plaintiff)
DD (Defendant)
Representation:
Counsel:
K W Andrews with R Brown (Plaintiff)
Solicitors:
Carroll & O’Dea Lawyers (Plaintiff)
Hall Partners (Defendant)

File Number(s): 2018/204001
Publication restriction: Nil

REVISED EX TEMPORE Judgment

These proceedings are listed before me for a hearing for five days, commencing today, 12 July 2021. Kelvin Andrews appears with Ryan Brown on behalf of the plaintiff. Trevor Hall, solicitor, appears for the defendant.
The proceedings are being conducted by audio-visual link (“AVL”), having regard to the current COVID difficulties in Sydney. The defendant is currently in custody and is observing the proceedings by AVL.
At the commencement of the hearing, the defendant sought leave to file an amended defence. The plaintiff did not oppose the filing and I granted leave to file the amended defence. The further amendments relate to the contentious paragraphs, being paras 3 and 4. I say, “contentious”, because there has already been considerable debate about paras 3 and 4.
Immediately after I granted leave, the plaintiff sought an order that the defendant not be permitted to cross-examine the plaintiff on the matters raised in paras 3 and 4, on the basis that the raising of the matters in paras 3 and 4 would constitute an abuse of process.
As I understand the plaintiff’s position, it is really that the defendant should not be permitted to contest the essential facts relied upon by the plaintiff as constituting the sexual assaults and, even if the defendant is permitted to rely on his defence, he should not be permitted to challenge the plaintiff, in the witness box, on these essential facts.
The second issue which arose at the commencement of the hearing is that the defendant seeks to adduce evidence from three witnesses, one of whom is the defendant.
On Thursday 8 July 2021, the defendant served what purports to be three witness statements dated 8 July 2021,…

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.

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Details

Case: [2021] NSWSC 1157
Decision Date: 12 July 2021

CaseChat Overview and Summary

The matter between PP and DD was before the Federal Court. The dispute involved the defendant's attempt to serve evidentiary statements on the plaintiff on the eve of the trial, which the plaintiff objected to. Additionally, the plaintiff made an application to strike out certain paragraphs of the defendant's defence on the basis of an abuse of process, alleging that the defendant was denying events that had already been the subject of a criminal conviction.

The court had to determine whether the defendant should be granted leave to serve the evidentiary statements late and whether the paragraphs of the defence that denied the criminal conviction should be struck out. The court considered the principles of case management and the need for finality in litigation. It also examined the plaintiff's application to strike out specific parts of the defence, focusing on whether the defendant's actions constituted an abuse of process.

The court concluded that granting leave for the late service of the evidentiary statements would be inappropriate and would undermine the principles of finality and fairness in litigation. The court found that the defendant's attempt to introduce new evidence at such a late stage was unreasonable and prejudicial to the plaintiff. Regarding the application to strike out, the court determined that striking out the paragraphs of the defence was not warranted, as it would not constitute an abuse of process, and the defendant had a right to raise all available defences. The court held that the criminal conviction alone did not preclude the defendant from denying the events in question.

No further orders were made beyond the refusal of leave to serve the evidentiary statements and the dismissal of the application to strike out.

Orders