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

1. 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.

2. 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.

3. 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.

4. 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

5. 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 Procedure Rules2005 (NSW) (‘UCPR’), the proceedings be dismissed or, in the alternative, that the pleading be struck out pursuant to r 14.28(1) of the UCPR. The relief sought is based upon the state of the pleading and, in connection with the order seeking dismissal of the proceedings, a contention that no viable claim can be advanced through such pleading. The first defendant relies upon an affidavit from its solicitor, Julie Bowker, affirmed 17 May 2024.

6. The State of New South Wales, by notice of motion filed 30 April 2024, seeks a number of orders: first, an order, pursuant to r 6.27 of the UCPR, that it be joined as a party – essentially to correct the improper joinder of the police officers having regard to the provisions of the Law Reform (Vicarious Liability) Act referred to; secondly, an order, pursuant to r 12.7(1) of the UCPR, that the proceedings be dismissed for want of due despatch; and, thirdly, and in the alternative to the second order, that the proceedings against the second and third defendants be dismissed pursuant to s 9D of the Law Reform (Vicarious Liability) Act (because the police officers, rather than the State of New South Wales, have been named as defendants), the pleading be struck out pursuant to r 14.28(1) of the UCPR, and that the plaintiff have leave to file an amended statement of claim within 14 days. The State relies upon an affidavit of Philippa Mylchreest affirmed 28 May 2024.

7. There is also an affidavit from the plaintiff dated 1 July 2024.

Discussion and consideration

8. The State sought its joinder to the proceedings, pursuant to r 6.27 of the UCPR, to reflect the fact that any tortious claim that the plaintiff might have against the police officers involved must be brought against the State, not the individual officers. That is because the claim is a “police tort claim” (s 9B(1) of the Law Reform (Vicarious Liability) Act) and because the State has not denied that it would be vicariously liable for the alleged tort if it were otherwise established that one or other of the police officers concerned had committed it (ss 9B(2) and (3) of the Law Reform (Vicarious Liability) Act). That order should be made.

9. I turn now to address the pleading.

10. The nature and function of a pleading was helpfully summarised by Garling J in Young v Hones [2013] NSWSC 580 at [79]-[80] and by Adamson J (as her Honour then was) in Dickens v State of New South Wales (No 3) [2018] NSWSC 485 at [36]-[39]. A number of the principles referred to in those decisions are reflected in the rules that deal with the form of pleadings: rr 14.6-14.20 of the UCPR.

11. The statement of claim patently fails to conform with these rules (and others) and the minimum requirements for an acceptable pleading in this Court. The statement of claim filed 8 March 2024 will be struck out pursuant to r 14.28(1)(b) of the UCPR.

12. Given that I have made that order, the remaining order sought by the State does not arise (an order dismissing the proceedings for want of due despatch).

13. The first defendant also sought summary relief, pursuant to r 13.4(1) of the UCPR, in effect arguing that the pleading was incapable of being salvaged by legitimate amendment and thus should be dismissed (first defendant’s submissions at [12]).

14. When dealing with an application for summary dismissal on this basis, the critical question is “whether there is an underlying cause of action or defence, not simply whether one is pleaded”: O'Brien v Bank of Western Australia Ltd [2013] NSWCA 71; (2013) 16 BPR 31,705 at [3], citing Spencer v Commonwealth (2010) 241 CLR 118; [2010] HCA 28 at [23].

15. I am not persuaded to make the order sought by the first defendant. That is because although I entertain some not inconsiderable doubt about this, I cannot exclude the possibility that there is a claim that is capable of being advanced by the plaintiff. I have in mind, in particular, what is said by the plaintiff in his affidavit dated 1 July 2024, par 9. It would appear that, based upon what is there said, the first defendant is (according to the plaintiff, of course) “deeply involved in creating the malicious prosecution of [him]” and what the plaintiff described as “the false allegation of [him] cheating at the poker game” on 14 November 2023. It may be possible, therefore, for the plaintiff to properly frame an action that would nominate the first defendant as prosecutor for the purposes of that tort – although the fact that the prosecution is ongoing (that is, has not been terminated in the plaintiff’s favour) may very well present a difficulty in the plaintiff pursuing such a claim, at least at the present time.

Orders

16. For the above reasons, I make the following orders:

1. Order that, pursuant to r 6.27 of the Uniform Civil Procedure Rules 2005 (NSW), the State of New South Wales be joined to proceedings.

2. Order that, pursuant to r 14.28(1)(b) of the Uniform Civil Procedure Rules 2005 (NSW), the statement of claim filed 8 March 2024 be struck out.

3. Order the plaintiff pay the first defendant’s costs of the notice of motion filed 17 May 2024 and of the proceedings.

4. Order the plaintiff pay the State of New South Wales’s costs of the notice of motion filed 30 April 2024 and of the proceedings.

5. Order that, in the event that the plaintiff wishes to pursue the proceedings, the plaintiff file and serve a notice of motion (and any evidence in support as well as a draft of the proposed pleading) seeking leave, with such notice of motion to be filed and served by 27 September 2024, 4pm. Any notice of motion filed pursuant to this order is to be made returnable for directions only on 4 October 2024.

6. Vacate the listing on 23 September 2024 before the Common Law Registrar.

7. List the matter for directions before the Common Law Registrar on 4 October 2024.

8. Direct that the Court forward a copy of this judgment to the plaintiff to the PO Box address nominated in the statement of claim filed 8 March 2024.

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Decision last updated: 23 August 2024