Stanizzo v Fregnan

Case [2021] NSWCA 195

Court of Appeal


Supreme Court


New South Wales

  • Summary available
  • Amendment notes
Medium Neutral Citation: Stanizzo v Fregnan; Stanizzo v Badarne; Stanizzo v State of New South Wales [2021] NSWCA 195
Hearing dates: 27-29 April 2021
Date of orders: 3 September 2021
Decision date: 03 September 2021
Before: Payne JA; McCallum JA; Simpson AJA
Decision:

Stanizzo v Fregnan:

1.    Appeal dismissed with costs.

2.    Appeal against the order dismissing the cross-claim dismissed  with costs.

Stanizzo v Badarne:

1.    Appeal dismissed with costs.

2.    Notice of motion of 29 January 2021 dismissed with costs.

Stanizzo v State of New South Wales:

1.    Appeal dismissed with costs.

Catchwords:

TORTS — Trespass to the person — Battery — Sexual assault — where resolution of the issues depended on the assessment of the truthfulness of each party — no issue of principle

TORTS — Evidence — proof of a fact relied on by defendant

TORTS — Malicious prosecution — where defendant provided statement to police in connection with criminal investigation — whether defendant a prosecutor for purposes of the tort — whether defendant knowingly provided false information to a prosecuting authority

Legislation Cited:

Civil Liability Act 2002 (NSW), s 3B

Director of Public Prosecutions Act 1986 (NSW), s 9

Evidence Act 1995 (NSW), ss 136, 140

Law Reform (Vicarious Liability) Act 1988 (NSW), Pt 4

Oaths Act 1900 (NSW)

Supreme Court Act 1970 (NSW), s 75A

Surveillance Devices Act 2007 (NSW)

Cases Cited:

A v State of New South Wales (2007) 230 CLR 500; [2007] HCA 10

Clavel v Savage [2015] NSWCA 61

Commonwealth Life Assurance Society Ltd v Brain (1935) 53 CLR 343; [1935] HCA 30

Crowley v Glissan (1905) 2 CLR 744; [1905] HCA 31

Edwards v The Queen (1993) 178 CLR 193; [1993] HCA 63

Fregnan v Stanizzo; Stanizzo v Badarne; Stanizzo v State of New South Wales [2020] NSWSC 402

Fox v Percy (2003) 214 CLR 118; [2003] HCA 22

Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8

Lee v Lee; HSU v RACQ Insurance Ltd; Lee v RACQ Insurance Ltd (2019) 266 CLR 129; [2019] HCA 28

Mitchell v John Heine & Son Ltd (1938) 38 SR (NSW) 466

Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12

R v Baden-Clay (2018) 258 CLR 308; [2018] HCA 35

Robinson Helicopter Company Inc v McDermott [2016] HCA 22; (2016) 90 ALJR 679

State of New South Wales v Quirk [2012] NSWCA 216

Texts Cited:

Fleming, The Law of Torts, Law Book Company Information Services, 1998

Category:Principal judgment
Parties: Vincent Stanizzo (Appellant)
Karina Vivianna Fregnan (1st Respondent)
Muhammed Badarne (2nd Respondent)
State of New South Wales (3rd Respondent)
Representation:

Counsel:
N Hutley SC/M Rollinson (Appellant)
In person (1st Respondent)
A J Macauley (2nd Respondent)
N Newton/T Buterin (3rd Respondent)

Solicitors:
Oliveri Attorneys (Appellant)
Self-represented (1st Respondent)
Badarne Lawyers (2nd Respondent)
NSW Crown Solicitor (3rd Respondent)
File Number(s): 2020/151357
 Decision under appeal 
Court or tribunal:
Supreme…

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Details
AGLC
Stanizzo v Fregnan [2021] NSWCA 195
Case
[2021] NSWCA 195
Decision Date

CaseChat Overview and Summary

The appeal concerned a dispute between the appellant, Stanizzo, and the respondents, Fregnan and Badarne, and the State of New South Wales. The core of the dispute involved allegations of sexual assault and malicious prosecution. The matter was heard in the Court of Appeal of New South Wales.

The Court of Appeal was required to determine several key legal issues. These included whether the appellant had committed a battery by way of sexual assault, the standard of proof required for facts relied upon by a defendant in tortious claims, and whether the respondent Fregnan could be considered a prosecutor for the purposes of a malicious prosecution claim, particularly in circumstances where Fregnan had provided a statement to the police during a criminal investigation.

The Court's reasoning focused heavily on the assessment of the credibility of the parties involved, finding that the resolution of the factual disputes, particularly concerning the alleged sexual assault, depended on this assessment. The Court applied established principles of tort law relating to trespass to the person and malicious prosecution. In relation to the malicious prosecution claim, the Court considered whether the respondent had knowingly provided false information to a prosecuting authority, a crucial element for establishing such a tort.

Ultimately, the Court of Appeal dismissed the appellant's appeals in all matters, including the appeal against the dismissal of the cross-claim. The appellant was ordered to pay the costs of the appeals.

Orders

Orders of the court

Stanizzo v Fregnan:

1. Appeal dismissed with costs.

2. Appeal against the order dismissing the cross-claim dismissed with costs.

Stanizzo v Badarne:

1. Appeal dismissed with costs.

2. Notice of motion of 29 January 2021 dismissed with costs.

Stanizzo v State of New South Wales:

1. Appeal dismissed with costs.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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