Carvanna v State of New South Wales [2022] NSWSC 594

Supreme Court New South Wales

Medium Neutral Citation: Carvanna v State of New South Wales [2022] NSWSC 594 Hearing dates: 12 May 2022 Date of orders: 12 May 2022 Decision date: 12 May 2022 Jurisdiction: Common Law Before: Cavanagh J Decision: (1) The plaintiff to file a further amended statement of claim by 10 June 2022. (2) The plaintiff to pay the defendant's costs of the motion. (3) See case management orders set out at paragraph [27]. Catchwords: CIVIL PROCEDURE — Pleadings — Form and content of pleading — Malicious prosecution — Defects — Application to strike out Legislation Cited: Crimes Act 1900 (NSW) Uniform Civil Procedure Rules 2005 (NSW) Cases Cited: Seidler v Caroll & O'Dea [2013] NSWSC 338 Beckett v New South Wales (2013) 248 CLR 432; [2013] HCA 17 Category: Procedural rulings Parties: David Romano Carvanna (Plaintiff) State of New South Wales (Defendant) Representation: Counsel: C Coventry (Defendant)

Solicitors: Plaintiff (Self-Represented) Wotton & Kearney (Defendant) File Number(s): 2021/23783 Publication restriction: None

REVISED EX TEMPORE Judgment 1. By way of a notice of motion filed on 30 July 2021 the defendant, the State of New South Wales, seeks orders pursuant to rr 14.28 or 13.4 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) that the paragraphs of the plaintiff's second amended statement of claim filed 26 July 2021 set out in the schedule to the notice of motion be struck out and that the plaintiff pay the costs of the motion. 2. The paragraphs referred to in the schedule are paras 1 and 2 under the "Relief Claimed" and paras 99 to 110 under the heading "Malicious Prosecution". On the hearing of the application the plaintiff appears in person (through the AVL). He is unrepresented in the proceedings. The defendant is represented by Ms Carolyn Coventry of counsel. 3. The motion is the culmination of a dispute between the parties relating to the pleadings which has been ongoing since the plaintiff commenced these proceedings. The defendant filed a motion previously on 14 April 2021 seeking to strike out certain paragraphs of the original statement of claim. That motion was heard by Bellew J on 20 May 2021. At that time, his Honour: 1. Struck out paragraphs 1 and 2 of the relief claimed; 2. Struck out various parts of the particulars; and 3. Granted the plaintiff leave to re-plead the relief claimed and a cause of action based on the tort of malicious prosecution. 1. The result of his Honour's orders was the filing of what purports to be a second further amended statement of claim on 23 July 2021. The defendant, not being satisfied that the plaintiff has properly pleaded his cause of action or that the plaintiff has complied with his Honour's earlier orders, brings a further motion. 2. The defendant's position is that as the plaintiff has still not pleaded his cause of action properly, the paragraphs of the second amended statement of claim which purport to plead a cause of action in malicious prosecution should be struck out in their entirety, leaving the plaintiff only to pursue a claim for false imprisonment. 3. The plaintiff's position appears to be that he believes that he has done what he should have done and that, in any event, the defendant knows all about it. There are documents such as a Court Attendance Notice and his statement which provide the necessary information. 4. The defendant provided helpful written submissions. Ms Coventry clearly and candidly identified the problems which the defendant perceives with the second further amended statement of claim during oral submissions. 5. To summarise, the defendant identifies the following problems with the second amended statement of claim: 1. In the relief claimed the plaintiff seeks both a declaration and damages which the plaintiff specifies in the sum of $1,245,000. The defendant says this is not permissible; 2. The plaintiff does not plead or particularise the person or persons who are said to have had the malicious intent for the purposes of the cause of action; 3. There is no particularisation of the basis on which those persons (whoever they might be) did not have reasonable cause for the prosecution. In other words, it is not clear whether the plaintiff submits that the officer or officers knew that there was no reasonable basis to pursue the prosecution or that, on an objective basis, there was no reasonable basis for the prosecution; 4. The plaintiff makes allegations essentially against the State but the defendant submits that it is necessary in this type of matter for the plaintiff to plead the identity of the persons said to have been engaged in the conduct and then plead that the State is vicariously liable for their conduct. The plaintiff has not done so; and 5. Finally, the defendant says that there are no particulars of the state of mind, that is the malice of the officers, and it is necessary that the plaintiff gives such particulars.