Simic v Bailey - [2024] NSWSC 1076

Supreme Court

New South Wales

Medium Neutral Citation: Simic v Bailey [2024] NSWSC 1076
Hearing dates: 23 August 2024
Date of orders: 23 August 2024
Decision date: 23 August 2024
Jurisdiction: Common Law
Before: Chen J
Decision:
See [16]

Catchwords:
CIVIL PROCEDURE – Pleadings – Striking out – Application by first defendant that the proceedings be dismissed pursuant to r 13.4 of the Uniform Civil Procedure Rules 2005 (NSW) or, alternatively, the pleading be struck out pursuant to r 14.28 – Application by the State of New South Wales to be joined as a defendant – Pleading struck out for failure to meet minimum requirements – Application for summary dismissal denied

Legislation Cited:
Crimes Act 1900 (NSW)
Law Reform (Vicarious Liability) Act 1983 (NSW)
Uniform Civil Procedure Rules2005 (NSW)

Cases Cited:
Dickens v State of New South Wales (No 3) [2018] NSWSC 485
O'Brien v Bank of Western Australia Ltd [2013] NSWCA 71; (2013) 16 BPR 31,705
Spencer v Commonwealth (2010) 241 CLR 118; [2010] HCA 28
Young v Hones [2013] NSWSC 580

Category: Procedural rulings
Parties: Ivan Simic (Plaintiff)
Scott Bailey (First Defendant)
Timothy Connolly (Second Defendant)
Joshua Mabon (Third Defendant)
State of New South Wales (Fourth Defendant)
Representation: Solicitors:
Plaintiff (self-represented)
Carter Newell Lawyers (First Defendant)
Wotton + Kearney (Fourth Defendant)

File Number(s): 2024/00089564
Publication restriction: Nil

JUDGMENT EX TEMPORE

Introduction

The statement of claim filed by the plaintiff on 8 March 2024 is in these terms:

Trespass on the 14^th November 2023 by wrongdoers.

The affidavit verifying the statement of claim provides a little more detail. It is in these terms:

I am the claimant.
I am the man wronged and harmed.
I seek remedy for trespass that occurred on 14^th November 2023.

From other evidence (including an affidavit of the plaintiff dated 1 July 2024), it appears that the events giving rise to the plaintiff’s “complaint” result from him being charged with a fraud offence under s 192E(1)(b) of the Crimes Act 1900 (NSW) – the allegation being that, between 7:35pm and 8:30pm on 14 November 2023, at the Lightning Ridge and District Bowling Club (‘the Club’) the plaintiff, by deception, dishonestly obtained $1,900 “by stacking cards during [a] poker game”. Mr Simic argued today that the evidence underpinning this allegation is false. Separately, he complains that the prosecution of him in the Lightning Ridge Local Court has been beset by delay and, further, the police have engaged in stalking and harassing him.
The statement of claim names three defendants: the first defendant is the CEO of the Club and the second and third defendants are NSW police officers who are said to have had some involvement with the plaintiff being charged. Those police officers, it should be noted, have been joined contrary to ss 9B(1)-(3) of the Law Reform (Vicarious Liability) Act 1983 (NSW).

The applications

The first defendant, by notice of motion filed 17 May 2024, seeks an order that, pursuant to r 13.4(1) of the Uniform Civil…

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.

Continue reading Simic v Bailey

Details

AGLC: Simic v Bailey [2024] NSWSC 1076
Case: [2024] NSWSC 1076
Decision Date: 23 August 2024

CaseChat Overview and Summary

Simic v Bailey is a case before the Supreme Court of New South Wales where the primary dispute revolves around the validity and sufficiency of pleadings filed by the plaintiff. The plaintiff, Simic, filed a claim against Bailey, the first defendant, and subsequently, the State of New South Wales sought to be joined as a defendant in the proceeding. The court was tasked with addressing an application by the first defendant to dismiss the proceedings under rule 13.4 of the Uniform Civil Procedure Rules 2005 (NSW) or, alternatively, to strike out the pleading under rule 14.28. Additionally, the court considered the State of New South Wales' application to be joined as a defendant.

The legal issues before the court were whether the plaintiff's pleadings met the minimum requirements for proceeding to trial and if the pleadings were sufficient to warrant a dismissal of the case or a striking out of the plaintiff's claim. The court had to determine if the plaintiff's claims were adequately pleaded and if the plaintiff's case had any prospects of success. The court also needed to decide if the State of New South Wales should be allowed to join the proceeding as a defendant.

The court found that the plaintiff's pleadings did not meet the minimum requirements set out in the rules, leading to the striking out of the plaintiff's pleadings. Despite this, the court denied the application for summary dismissal because it found that the plaintiff's case had some prospect of success. The court ruled that the State of New South Wales' application to be joined as a defendant was not appropriate at that stage of the proceeding. The court's reasoning was based on the need to ensure that parties have a fair opportunity to present their case while also maintaining the efficiency and effectiveness of the court process.

The final orders of the court were that the plaintiff's pleadings were struck out for failing to meet the minimum requirements. However, the application for summary dismissal was denied, allowing the plaintiff to amend the pleadings within a specified timeframe. The application by the State of New South Wales to be joined as a defendant was dismissed, with the court indicating that this could be revisited if the plaintiff's amended pleadings included a claim against the State.

Orders