PP v DD [2021] NSWSC 1157

Supreme Court New South Wales

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 Act 1900 (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 1. 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. 2. 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. 3. 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. 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. 5. 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. 6. 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. 7. On Thursday 8 July 2021, the defendant served what purports to be three witness statements dated 8 July 2021, being statements of the defendant, Robert Tennant and Mark Barbeliuk. The statements are not signed and, at least on one view, read more like a summary of the oral evidence that the witnesses might be intending to give. 8. The plaintiff opposes the defendant being granted leave to rely on any evidence from these three witnesses. Mr Hall agreed that it was appropriate to deal with this issue at the outset and agreed that, bearing in mind non‑compliance with earlier orders, it was really incumbent upon the defendant to seek leave to rely on this evidence at this late stage. 9. I am thus dealing with two important issues at the outset of these proceedings, being: 1. whether the defendant should be permitted to put in issue and challenge the plaintiff on the essential facts relied upon by the plaintiff to ground his cause of action, that is, the facts of the alleged sexual assaults; and 2. whether the defendant should be permitted to rely on evidence from three witnesses, when notice of an intention to do so was only given two days before the commencement of the hearing.