Saad v State of New South Wales
[2013] NSWSC 154
•08 March 2013
Supreme Court
New South Wales
Medium Neutral Citation: Saad v State of New South Wales [2013] NSWSC 154 Hearing dates: 20/02/2013 Decision date: 08 March 2013 Jurisdiction: Common Law Before: Garling J Decision: (1) Order the defendant to serve statements pursuant to Part 31 r 4 of the evidence of all witnesses which it proposes to call at the hearing of the proceedings on or before 4pm 28/06/2013.
(2) Costs of this hearing to be costs in the cause.
(3) Stand proceedings over for further directions to 9.30am on 05/07/2013.
(4) Fix the matter for hearing on 10/02/2014
Catchwords: PRACTICE AND PROCEDURE - Exchange of witness statements prior to the commencement of the trail - Parties to exercise a degree of co-operation to ensure that only real issues in dispute are brought forward for the trial - Efficient and proper conduct of litigation - Balancing the overriding purpose to facilitate a just resolution with a cheap and quick resolution - Case management order or direction pursuant to section 61 of the Civil Procedure Act 2004 -- use of Uniform Civil Procedure Rules 2005 Part 31 r 4. Legislation Cited: Civil Procedure Act 2005
Interpretation Act 1987
Legal Profession Act 2004
Limitation Act 1969
Uniform Civil Procedure RulesCases Cited: Baulderstone Hornibrook Engineering Pty Ltd v Gordian Runoff Ltd [2008] NSWCA 243
Beckett v NSW [2012] NSWCA 114
Boyes v Colins [2000] WASCA 344; (2000) 23 WAR 123
Halpin v Lumley General Insurance [2009] NSWCA 732
Nowlan v Marson Transport Pty Ltd [2001] NSWCA 346; (2001) 53 NSWLR 116
White v Overland [2001] FCA 1333Category: Procedural and other rulings Parties: Fred Saad (P1) (2007/265173)
Danny Saad (P2) (2007/265173)
James El-Wasfi (P3) (2007/265173)
Sam Kassas (P4) (2007/265173)
AH (P5) (2007/265173)
Ashley Saad (P) (2008/289620)
State of New South Wales (D) (both matters)Representation: Counsel:
D E Baran (P) (both matters)
I Temby QC / D Villa (D) (both matters)
Solicitors:
Margiotta Solicitors (both matters)
Crown Solicitor (D) (both matters)
File Number(s): 2007/265173 2008/289620
Judgment
In the course of the case management of these proceedings, an issue has arisen as to whether the Court, by way of a direction, ought order the defendant, the State of New South Wales, to file and serve statements of evidence of the witnesses whom it may call when the matter is finally heard and determined.
The plaintiffs submit that the Court should make such an order, and the defendant opposes the making of the order.
For the reasons which follow, I have decided that an order for witness statements should be made.
Nature of the Proceedings
Whilst there are in fact two separate sets of proceedings, they are to be heard together and are being dealt with together for case management purposes.
The plaintiffs in both actions are jointly represented, and there is the same representation for the State.
The issues that fall for determination are identical in both sets of proceedings. For all practical purposes the two sets of proceedings should be regarded as one.
There are six plaintiffs in all. Each of them claims compensatory, aggravated and exemplary damages for wrongful arrest, false imprisonment and malicious prosecution.
Factual Context
On 27 January 1998, Mr Robert McPherson was murdered in James Street, Redfern. He was set upon by a number of males and assaulted with a range of weapons including a baseball bat, a chain, a stick and a knife. He died from the effects of his injuries.
On 2 April 1998, three of the plaintiffs were arrested and charged with Mr McPherson's murder. On 27 October 1998, the prosecution against two of the plaintiffs was withdrawn. On 22 February 1999, the Director of Public Prosecutions directed that there be no further proceedings against the third man arrested on 2 August 1998.
These facts constitute the first cause of action against the State. These three plaintiffs claim that they were wrongfully arrested and then falsely imprisoned.
On 9 August 2002, each of the six plaintiffs was arrested and charged with the murder of Mr McPherson, or else with concealing a serious offence, being the murder of Mr McPherson. A number of the plaintiffs were also charged with other unrelated offences. One of the plaintiffs initially charged with the concealment offence, was later charged with murder.
As a result of the charges of 9 August 2002, and in some cases, the other unrelated charges, the plaintiffs were detained in custody for lengthy, but differing, periods of time.
The arrests of 9 August 2002, form the basis of the second cause of action against the State for damages for wrongful arrest and false imprisonment.
After these arrests, and the charging of the plaintiffs, in the period from 4 November 2002 until 27 March 2003, the charges against the plaintiffs were prosecuted by way of a committal hearing before a Magistrate in the Local Court. This proceeding gives rise to a third cause of action, being one for malicious prosecution.
Five of the plaintiffs stood their trial, following their committal for trial, before Newman AJ in the Supreme Court between 13 October 2003 and 21 November 2003. The trial terminated early, when the jury was discharged, and did not proceed to a conclusion. A further trial was held in the Supreme Court before Sully J from 13 September 2004 to 17 November 2004.
These two trials are relied upon as constituting maintenance of the malicious prosecution, and are relied upon as forming an essential part of the third cause of action for malicious prosecution.
It is admitted on the pleadings that all of the prosecutions were terminated in favour of the plaintiffs, with the exception of one plaintiff, Mr Danny Saad. He pleads that he is innocent of all charges.
The plaintiffs allege that in respect of each of the causes of action, a number of named police officers, did not have a sufficient and reasonable basis to arrest and charge them. They also allege that all of the prosecutors, which term is used to describe the police officers who were informants, and the officers of the DPP's office, who laid or caused to be laid the criminal indictments, acted without reasonable and probable cause.
The defences consist of a number of factual admissions, a large number of denials of various allegations and a pleading that the provisions of the Limitation Act 1969, prevent the plaintiffs from succeeding in their actions. The defence also denies any liability at all.
There is no dispute that if any one of the relevant police officers, or officers of the DPP's office, did proceed in a way which constituted any of the pleaded tortious causes of action, then the State, the named defendant, would be vicariously liable for their conduct and hence, it is the properly named defendant.
Some Features of the Pleadings
It will be observed from the summary above, that the Court will be called upon to determine about 15 separate causes of action, although clearly, there will be a significant commonality of fact and factual issues underlying this multiplicity of causes of action. Each plaintiff has at least one cause of action, and some plaintiffs have all three.
The current version of the Statement of Claim (which is substantially similar as between the two actions) is 62 pages in length. This is largely because the pleader has included a lengthy pleading of particulars of facts, matter and circumstances which it is said support the necessary conclusions of:
(a) in respect of the wrongful arrest and false imprisonment allegations, an absence of reasonable suspicion of the commission of the relevant crime for which the plaintiffs were arrested and charged; and
(b) in respect of the malicious prosecution allegation, an absence of reasonable and probable cause for the commencement and maintenance of the prosecutions.
These particulars, often involve allegations that particular identified police officers obtained statements from named witnesses, which allegations are combined with assertions as to what, at least in part, these statements contain. The particulars also include allegations that identified police officers failed to take steps to check the veracity of particular versions of fact given by named witnesses.
With respect to the cause of action relating to malicious prosecution, the particulars contain assertions as to what was said in the course of the evidence, what was known to prosecutors and, in a number of cases, what was said by the presiding Judge at the trial?
The current defence to the latest version of the Amended Statement of Claim makes it clear that the State denies that the torts alleged were committed. In respect of the arrests, confinement to custody, and the committal hearing and trials, appropriate admissions are made as to the relevant facts and dates. In addition, the defences plead the existence of other criminal charges and terms of imprisonment which were imposed on some plaintiffs which it seems is intended to demonstrate that the periods in custody of those plaintiffs, were based upon a proper justification by reason of crimes which were unassociated with the murder of Mr McPherson.
However, the defence does not plead that any of the police officers, or officers of the DPP, either had a reasonable suspicion prior to the arrests of the plaintiffs, or else had reasonable and probable cause for the prosecution of the plaintiffs in the sense of a positive averment, supported by particulars of those states of mind.
What has happened is that the current Statement of Claim pleads the existence of a negative state of mind, or else the absence of a positive state of mind. The defence denies the existence of that negative state of mind, and denies the absence of a positive state of mind. It does not plead or particularise a positive state of mind of any of the relevant police officers or officers of the DPP.
In making these remarks, it is unnecessary for me to consider, and I do not do so, whether the defence is adequately or properly pleaded. There is no motion for any order striking out the defence. However, as will be seen in due course, the present state of the pleadings, including the defence, is the context against which it is necessary to consider whether or not to make the order sought.
Civil Procedure Act 2005
The making of an order that a party file and serve written statements of evidence from witnesses whom it intends to call at trial, is a case management order or direction made pursuant to the provisions of s 61 of the Civil Procedure Act 2005 ("the Act").
Section 56 of the Act obliges the Court when exercising any power given to it by the Act, here s 61, or the Uniform Civil Procedure Rules, to give effect to the overriding purpose of the Act, which is to facilitate the just, quick and cheap resolution of the real issues in the dispute or proceedings.
Section 57 of the Act requires that case management is to have regard to four objects, namely:
(a) the just determination of the proceedings;
(b) the efficient disposal of the business of the Court;
(c) the efficient use of available judicial and administrative resources; and
(d) the timely disposal of the proceedings, and all other proceedings in the Court at a cost affordable by the respective parties.
Section 58 of the Act obliges the Court when making a case management order, or giving such directions, to act in accordance with the dictates of justice. There are matters listed in that section to which the Court must have regard, and matters as to which it may, have regard. Of particular relevance in this case is the degree of difficulty or complexity to which the issues in the proceedings give rise: s 57(2)(b)(i) of the Act.
Section 61 of the Act provides ample power for the making of the orders sought. No party suggested otherwise. The provisions of Part 2 of the Uniform Civil Procedure Rules, also provide ample power to make an order of the kind sought.
The State's Submissions
Mr Temby QC, who appeared with Mr Villa, for the State, drew attention to the nature and extent of the task involved for his client, if the Court were to make the order sought.
Mr Temby QC informed the Court that it would be necessary to interview and take statements from 13 or 14 witnesses who speaking generally were the police officers named in the Statement of Claim, or else those involved in the arrests, and also the officers of the DPP relevant to the prosecutions. He pointed out that, unsurprisingly given the length of time which has passed since the events in question, many of these individuals no longer work as police officers or within the DPP's office and that, accordingly, they would not be obliged to co-operate with the Crown Solicitor.
I take into account that as well as these particular witnesses, it may also be necessary for the Crown Solicitor to interview other people such as the Crown Prosecutor who was briefed to conduct each of the criminal trials to obtain evidence and materials which would be relevant to the defence of the State.
I accept, as Mr Temby QC submitted, that particularly having regard to the lengthy history, the complexities of the evidence at the committal and at the two trials, and the likely quantity of documents which I was told was in the order of many volumes of paper, that the task of interviewing witnesses could not be achieved in a short space of time, but would rather be a lengthy, perhaps protracted, and probably complex exercise.
Mr Temby QC submitted that the cost, expense and effort involved in obtaining these statements was not justified in the particular circumstances of this case because:
(a) depending upon the extent of admissions made during the course of oral evidence by each of the plaintiffs, it may not be necessary to call each of these witnesses;
(b) since it was the intention that in respect of many, if not all, of the causes of action, that the State would at the conclusion of the plaintiff's evidence, make a "no case to answer" submission, and since in Mr Temby QC's assessment, there were real and substantial prospects of success of some, if not all of those applications, then there is a real risk that the exercise of taking statements from all of the witnesses including the cost and expense would be substantially wasted; and
(c) that the terms of clause 27 of Practice Note SC CL 5, would not be satisfied in this case by an order for witness statements.
It is necessary, in order to give further context to these submissions of Mr Temby QC, to understand that at present, the best estimate which the parties can give for the likely length of hearing of the whole of these proceedings is seven to eight weeks.
The parties presently anticipate that the plaintiffs' case will take in the order of three hearing weeks. It is anticipated that the balance of the case, being the defendant's evidence and final submissions, will occupy a further four to five weeks.
Mr Temby QC submits that the appropriate and most efficient course of action to follow, in terms of the manner of the hearing, would be that the Court would set aside an initial period of three weeks, during which time the plaintiff's case would be presented and heard, and at the end of which, the defendant would have the opportunity make the submissions which it anticipates it will make of there being no case for it to answer. Mr Temby QC submits that it would then be appropriate for the proceedings to be adjourned for a period of time during which the trial Judge would decide the issues raised by the defendant, give his or her decision, and then give further directions for the conduct of any of the remaining causes of action and issues in the proceedings including the service of witness statements. He then submits that after a period which would enable those steps to be taken, the Court could resume the hearing of the matter until its conclusion.
Although he was not necessarily firm in his estimate, Mr Temby QC suggested that it may be appropriate for there to be at least six to eight weeks or perhaps longer if necessary, between the two tranches of hearing, to enable the orderly preparation and presentation of such of the defendant's case as remained.
Mr Baran of counsel who appeared for the plaintiffs, submitted that the Court should hear the whole of the proceedings in one sitting, and that there ought not be any lengthy adjournment between the presentation of the plaintiffs' and defendant's cases other than such adjournment as was occasioned by any need for the trial Judge to reflect on such decisions as he or she might make on the applications brought by the defendant at the close of the plaintiffs' case. Hence, he submits, there should be an order for witness statements in advance of the commencement of the hearing to enable this course to happen.
Discernment
The determination of the submissions of the defendant commences with noting some matters of particular relevance in these proceedings.
The first is that since the tortious causes of action turn, in significant part, on the state of mind of the individuals relevantly involved in the arrest, imprisonment and prosecution of each of the plaintiffs, it will be necessary for counsel for the defendant to have full and complete instructions as to what those states of mind were to enable them to properly conduct the defence of the plaintiffs' allegations, including undertaking any necessary cross-examination of the plaintiffs and any witnesses called in their case.
Secondly, to enable those instructions to be obtained, it will be necessary for each of the witnesses to be interviewed by the Crown Solicitor. Whether this has as yet happened is not revealed by the evidence, but it seems likely that it will need to happen before the hearing of the matter commences.
Thirdly, the additional time, cost and expense of turning the instructions of these individuals into witness statements is significantly less than taking a statement afresh without any previous interaction with the witness.
Fourthly, one significant issue which will contribute to the cost and expense of taking the witness statements will be the need for the defendant to identify and highlight in the statements, particular points of time which may be different for each witness depending upon the role played by that individual, at which the state of the witnesses' mind, and the reasonableness of it, will be relevant. But this will necessarily be a part of the instructions given to counsel.
I also note that it formed no part of the submissions advanced by the State, that there were particular reasons applicable to these proceedings why it would be inappropriate for the statements of the proposed witnesses to be disclosed in advance of the proceedings.
The benefit of the exchange of witness statements prior to the commencement of the trial is well accepted: see Boyes v Colins [2000] WASCA 344; (2000) 23 WAR 123, per Ipp JA; Halpin v Lumley General Insurance [2009] NSWCA 732 at [102]-[106].
One particular benefit which comes from the exchange of witness statements is that the exchange of statements provides in a practical way, for the co-operation of the parties to ensure that only the real issues in dispute are brought forward for the trial and it encompasses the need for the parties to be clear and precise in illuminating the issues for trial. See Baulderstone Hornibrook Engineering Pty Ltd v Gordian Runoff Ltd [2008] NSWCA 243 at [160]-[163] per Allsop P, Beazley and Campbell JJA agreeing. In other words, it is the mechanism which helps to further the overriding purpose in s 56 of the Act.
A second well recognised benefit from the exchange of statements, is that such exchange ensures that neither party to the proceedings is caught by surprise by any evidence in the proceedings, and enables them to meet their opponents case in a timely manner. As Allsop J (as his Honour then was) said in White v Overland [2001] FCA 1333, at [4]:
"... in the efficient and proper conduct of civil litigation, even civil litigation hard fought between parties, it should always be recognised that in the propounding of issues for trial, the parties should take steps to ensure that all relevant parties to the dispute are cognisant of what the issues are."
The time has long passed where the ambush theory of litigation prevails: see Nowlan v Marson Transport Pty Ltd [2001] NSWCA 346; (2001) 53 NSWLR 116 at [26]-[31] per Heydon JA (with whom Mason P and Young CJ in Eq agreed).
It is clear that the exercise of the power of case management, here to order the provision of witness statements, involves a balancing of competing objectives. It is just as between the parties for each party to know fully the nature of the evidence which witnesses will give before the commencement of a trial, and before they commence their case. On the other hand, forcing the State to obtain statements from witnesses who may not be called to give evidence, involves a degree of wasted expenditure.
As may be obvious, the disclosure of the evidence of each side to the other prior to the commencement of the trial, assists the parties to consider and make a fully informed assessment of the strengths and weaknesses of their own case, and their opponent's case. This necessarily assists in any possible settlement of the proceedings as a whole, or else the resolution of particular issues within the proceedings.
As well, full disclosure prior to trial may assist a legal practitioner to form, amend or maintain the necessary state of belief required by s 345 of the Legal Profession Act 2004.
Thus, in this case, the just resolution, the efficient resolution and the cheap resolution of the real issues in the proceedings are in tension.
Some other features may be noted. The defendant's submissions are made on the basis that they intend to make a "no case" to answer submission, which they anticipate will be successful. This, it is said, will mean that there will be significant cost savings. But the persuasive features of this argument for costs savings are elusive. This Court is not in a position now to evaluate whether or not there will be a case to answer, nor to predict whether the State will actually make an application, nor the number of causes of action in respect of which an application may be made, and the likelihood of success of those applications.
The plaintiffs have brought the proceedings. The proceedings have been supported by their evidence. The defendant has not moved for summary dismissal on the basis that the pleadings do not disclose a cause of action, nor that all of the evidence, based on the statements, which is to be tendered in support of the causes of action, would if accepted not constitute a case. Rather, the defendant, it must be said entirely properly, will seek to argue having undertaken cross-examination of such witnesses as are called in the plaintiffs' case, that there is no case to answer. Such a submission may or may not succeed. It is impossible for the Court at this stage of these proceedings to determine, based upon such submissions as are put before it, that inevitably there will be a finding of "no case to answer".
I am not persuaded that the material before me at present enables me to conclude that there will be any significant saving of cost to the defendant. There are three particular reasons for this, namely:
(a) I am not satisfied on the present material that any of the "no case to answer" submissions will necessarily succeed. This degree of satisfaction is entirely different from, and should not in any way influence, any ultimate determination of that issue. Rather it is a conclusion based on what is put before the Court presently;
(b) the difference in cost between taking instructions from various witnesses involved in the arrest and prosecution of the plaintiffs sufficiently to enable the case to be properly conducted, and the preparation of their statements in a form suitable for service, is not so great that the Court ought refrain from requiring statements to be served in advance of the proceedings;
(c) it is not possible to reach any conclusion at this stage that one or more of the defendant's potential witnesses may not be called. Of course, that remains a possibility, but the weight which can be given to that possibility, at the moment, is necessarily limited; and`
(d) the overall interests of justice require that, unless there is good reason otherwise, parties should be fully informed of the witnesses likely to be called, and the nature of their evidence before the commencement of proceedings.
I am also satisfied that the dictates of justice, as that term is used in the Act, including the interests of other litigants in proceedings in the Court, will be served because there is likely to be a reasonable saving of time in the conduct of litigation if all of the statements are served prior to the commencement of proceedings.
Practice Note SC CL5
In his submissions, Mr Temby QC called attention to the provisions of clause 27 of Practice Note SC CL5. That clause, relevantly, reads as follows:
"27. The tasks of a Directions Hearing, include but are not limited to:
...
directing that a party or all parties serve, or file and serve, witness statements - the purpose of such a direction being to facilitate clarification of issues and realistic negotiations for settlement."
Mr Temby QC submits that, in the circumstances of this case, an order that the State serve its witness statements would not fulfil either of the two purposes nominated.
I do not accept that submission. For the reasons which I have earlier described, the service of statements in advance of a hearing is likely to facilitate each of the nominated purposes. But even if they did not, it would be wrong as a matter of principle to hold that the broad discretion given to the Court by the case management provisions of the Act and the UCPR, are fettered by the terms of the Practice Note.
The power to make a Practice Note is contained in s 15 of the Act. Practice Notes are important, and practitioners are obliged to act in accordance with them, but a Practice Note is the equivalent of a Statutory Rule which can be disallowed by the Parliament: see s 40 and s 41 of the Interpretation Act 1987. The terms of subordinate legislation do not prevail over the enabling statute.
I reject the State's submission that an order for the provision of witness statements which does not fulfil the purposes nominated in clause 27 of the Practice Note cannot, or else ought not, be made.
In all of those circumstances, I will not accede to the submissions of the State that it should be excused from serving witness statements in advance of the hearing, and I will make an order for the service witness statements in advance of the final hearing.
Orders
I make the following orders:
(1) I order the defendant to serve statements pursuant to Part 31 r 4 of the evidence of all witnesses which it proposes to call at the hearing of the proceedings on or before 4pm, 28 June 2013.
(2) Costs of the hearing to be costs in the cause.
(3) Stand proceedings over for further directions to 9.30am 5 July 2013.
(4) I fix the matter for hearing on 10 February 2014.
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Decision last updated: 08 March 2013
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