New South Wales District Court CITATION: Mina Reznytska v State of New South Wales; Boris Reznystki v State of New South Wales [2010] NSWDC 326 JUDGMENT DATE: 7 December 2010 JURISDICTION: District Court of New South Wales JUDGMENT OF: Cogswell SC DCJ CATCHWORDS: CIVIL LAW - notice of motion - causes of action assault, wrongful arrest, unlawful detention - notice of motion by State of NSW asking Court to strike out parts of each statement of claim - notices of motion by plaintiffs asking Court to dismiss the State's notice of motion - notice of motion by plaintiffs asking for judgment against the State because a defence has not yet been filed LEGISLATION CITED: Law Reform (Vicarious Liability) Act 1983 s 9B(2) Evidence Act 1995 Mina Reznystka PARTIES: Boris Reznystki State of New South Wales FILE NUMBER(S): 2009/338284; 2009/338357 COUNSEL: Mr Giagios for the State of New South Wales SOLICITORS: Mr Reznystki for himself and Ms Reznystka JUDGMENT 1. Boris Reznytski and his mother, Mina Reznytska, say they were in a car on 28 January 2008. The police stopped them for a random breath test, which was negative. Mr Reznytski and Mrs Reznytska say what followed was an attack by a number of police officers on both of them. 2. Mr Reznytski commenced proceedings in the District Court against the State of New South Wales, the Commonwealth of Australia, a prosecution officer and various police officers. 3. Mrs Reznytska also commenced a separate set of proceedings against some of those persons, excluding the prosecution officer. 4. For reasons it is not necessary to go into, the relevant parties in each case at this stage are each plaintiff and the State of New South Wales, which is in each case the first defendant. 5. The causes of action pleaded by in Mr Reznytski's case are assault, wrongful arrest, and unlawful detention. In Mina Reznytska's case she pleads assault and wrongful detention. 6. The first defendant, the State of New South Wales, has put on notices of motion on 14 October 2010 asking the Court to strike out certain parts of each statement of claim. Mr Reznytski and his mother put on later notices of motion relevantly asking the Court to dismiss the State's notices of motion. Finally, Mr Reznytski and his mother have put on notices of motion asking for judgment to be entered against the State of New South Wales because it has not yet filed a defence. 7. Two important observations need to be made at this stage of the judgment. The first is that the Law Reform (Vicarious Liability) Act 1983 provides by s 9B(2) that persons may not bring a legal case against police but may instead make the claim against the Crown. In this case both cases are brought against both the Crown and the police. 8. The second observation is that an earlier statement of claim came before the Judicial Registrar, who gave orders on 25 June 2010 striking out certain causes of action as disclosing no reasonable cause of action or as tending to cause prejudice, embarrassment or delay. My understanding is that some of those causes of action concerned a claim of malicious prosecution by Mr Reznytski. 9. It appears to be common ground between Mr Reznytski and the State that he was in fact prosecuted and convicted. His appeal was unsuccessful. It appears to be uncontested before me that one of the essential things to prove in a case for malicious prosecution is the case that the plaintiff was in fact acquitted in the proceedings. That cannot be made out in this case. 10. Having made those observations, I turn to the State's notices of motion. The State was represented by Mr Giagios. Mr Boris Reznytski represented himself and spoke for his mother in her proceedings. English is not her first language; indeed she does not appear to speak English. Attempts to obtain an interpreter were unsuccessful and, if I have not yet granted Mr Reznytski leave, I do so now to speak for his mother which I am satisfied occurred with her agreement. 11. The thrust of many of Mr Giagios' submissions concerned paragraphs in Mr Reznytski's statement of claim which canvassed one of the two topics I referred to in my earlier observations, namely the naming of police officers as parties to the proceedings and the pursuit of causes of action which are not available to Mr Reznytski and which the Judicial Registrar has already dealt with. 12. Mr Boris Reznytski filed written submissions in court today, and made submissions orally in court as well. My understanding is that Mr Reznytski appreciates that the police cannot be joined in these proceedings. 13. I propose to dismiss the proceedings against the fourth to twelfth named defendants in Mr Reznytski's first amended statement of claim, filed on 24 September 2010. I regard that as an appropriate course rather than removing them because I am satisfied there is no cause of action available against them and they should not be left in jeopardy. 14. Insofar as paras 3 and 4 of Mr Reznytski's first amended statement of claim is concerned, I strike out those paragraphs because they refer to police officers. 15. I do not regard the material which appears in the first half of p 3 of the first amended statement of claim as pleading material facts. They contain references to the Magna Carta and the Evidence Act. They are both matters which Mr Reznytski can draw to the Court's attention in submissions. In my opinion they have no place in the statement of claim and I strike them out. 16. Para 5 from the second line, beginning with the word "institution" to the second last line ending with the words "and omissions" I strike out as clearly being a reference to malicious prosecution proceedings. 17. I also strike out para 13 because it contains no material allegation of fact. It may or may not be a matter which is relevant for Mr Reznytski to give or call evidence about in the proceedings, but it does not appear to be a material fact which should be pleaded. Paras 14 and 15 I regard as falling into the same category. Accordingly I order that paras 13, 14 and 15 of Mr Reznytski's statement of claim be struck out. 18. Para 16, Mr Giagios argued, appears to relate to Mrs Reznytska and therefore falls into the same category. Mr Reznytski argued that they are relevant to the issue of police duty. Police duty is obviously relevant to the causes of action of wrongful arrest and detention, if not assault. I do not propose to strike out para 16. 19. In para 21, Mr Giagios argues that the words in the third line from "the defendants" to "twelve", should be struck out. I agree with that because they make reference to the police defendants and I order that there be struck from para 21 the words "- the defendants from four to twelve". 20. Mr Giagios argues that para 23 is not relevant to the alleged assault but to the events which occurred afterwards. Mr Reznytski argues that a judge is entitled to know about witnesses. I do not think that would be the subject matter of a pleading. He also argues that it would be relevant to the wrongful arrest. I can see some force in that argument and I do not propose to strike out para 23. 21. Paragraph 25, Mr Giagios argues, falls into a similar category as para 23. Mr Reznytski, on the other hand, argues that he was in fact arrested twice and that that clause is relevant to the second arrest. I can see some force in that argument so far as the introductory two lines of para 25 are concerned, as well as clauses (iii), (iv), (vi), (vii) and (viii) are concerned. I do not see that clauses (i), (ii) and (v) plead material facts. So far as para 25 is concerned I therefore strike out clauses (i), (ii) and (v). 22. Mr Giagios argued that para 26 mostly concerns the irrelevant claim of malicious prosecution. I can see the force of that argument and I strike out those parts of para 26, commencing on the second line with the words "was used" down to the end of the clause ending "of the matter". 23. Mr Giagios argues that paras 27 to 70 inclusive should be struck out, with the exception of para 53. He argues that they all appear to relate to the irrelevant cause of action of malicious prosecution and I agree with him. I direct that there be struck out from the statement of claim paras 27 to 52 inclusive and paras 54 to 70 inclusive. 24. So far as para 71 is concerned, it appears to concern the conduct of one police officer during the incident and appears to argue why that police officer should be joined, or assert why that police officer should be joined. Mr Reznytski argued that the particulars, which commence on p 19, following para 71, should be retained insofar as particulars 1 to 11 are concerned. Mr Giagios agreed that particulars 1, 2, 5 and 6 assert material facts. I do think that cl 71 does not plead a material fact and I strike out para 71 of the statement of claim. I do not see that particulars 9, 10 and 11 plead material facts, nor particular 7. Accordingly, I direct that all of the particulars following para 71, whether they are particulars of that clause or not, be struck out, except particulars 1, 2-- PLAINTIFF REZNYTSKI: 4. HIS HONOUR: Was it 4? GIAGIOS: 5 and 6. 1, 2, 5 and 6. PLAINTIFF REZNYTSKI: 4, 5, 6. HIS HONOUR: 4, 5 and 6 and 8: that should stay. 25. In addition, I strike out from the heading above the particulars, the words of "FRAUD". 26. Mr Giagios asked for orders which were not in his notice of motion and which Mr Reznytski did not appear to oppose. I strike out from the second line on p 23 of the statement of claim under the heading "A. General Damages", the words "and malicious prosecution". I also strike out the words commencing from the beginning of the fourth-last line "Suffering" down to and including "legal proceedings". 27. Much of the material under "Punitive Damages" on p 23 appears to relate to malicious prosecution, but it could also relate to a wrongful arrest or unlawful detention. I propose to make no order so far as that is concerned. 28. Turning to Mrs Reznytska's statement of claim, Mr Reznytski did not oppose the relief sought by the notice of motion, except he asked that particulars 1 to 6 following para 27 of the first amended statement of claim by Mina Reznytska not be altered. I would strike out para 27. I would strike out the words "OF FRAUD" in the heading following para 27. I would strike out all of the particulars following that heading, except particulars 1 to 6 inclusive. HIS HONOUR: That's the end of my judgment. I think I've disposed of your notices of motion, Mr Giagios. Is that right? GIAGIOS: Except in Mina Reznytska's matter, your Honour. I assume you haven't made the balance of the orders HIS HONOUR: No, I haven't made the balance, thank you. 29. Returning to Mina Reznytska's first amended statement of claim, I grant the orders sought by the first defendant in its notice of motion, filed 14 October 2010, in paras 1, 2 and 3, with the exception of particulars following para 27 which I have already referred to. GIAGIOS: And also your Honour paragraph 14 is withdrawn, the objection is withdrawn to paragraph 14 of that statement. HIS HONOUR: Thank you and with the exception that – 30. I make no order in respect of para 14 of the first amended statement of claim. GIAGIOS: May it please your Honour. HIS HONOUR: Okay now that disposes of your notices of motion Mr Giagios. GIAGIOS: It does your Honour. HIS HONOUR: And Mr Reznytski effectively I think that disposes of your notices of motion seeking unconditional dismissal of the first defendant's notices of motion. I have dealt with those. 31. I do not propose to grant orders 1, 2 and 3 in your notices of motion filed today entitled 7A. I agree with Mr Giagios they are not really orders which I can make. HIS HONOUR: Now that brings me to Mr Reznytski your notices of motion seeking summary judgment. PLAINTIFF REZNYTSKI: Yes. HIS HONOUR: So the normal course is that I have struck out some of your statements of claim. What I am going to do is ask Mr Giagios, they do need to file a defence so you know what their defence is, how much time he proposes or asks for and then I'll see what you say about that. Mr Giagios? GIAGIOS: Your Honour we can file a defence by no later than 4pm on Friday 17 December. HIS HONOUR: All right now Mr-- PLAINTIFF REZNYTSKI: And your Honour just-- GIAGIOS: That's in both matters of course. HIS HONOUR: Yes. PLAINTIFF REZNYTSKI: Yes if you could just simply give sort of determination what happens with the case because it goes nowhere, it's one year old - 75 years old woman-- HIS HONOUR: All right, yes I see we'll come to that in a moment-- PLAINTIFF REZNYTSKI: --who is not able to get legal representation, who is not able to get you know interpreter, really I just try to get in touch with about ten interpreters paid $400 was agreed, didn't happen and was ordered to refer to pro bono lawyer at least on the same issues as Justice Levy did, probably she was denied, just referred to the Court to you know just to brief pro bono lawyer that he would be able to-- HIS HONOUR: All right let's just do one thing at a time. PLAINTIFF REZNYTSKI: Thanks. 32. I direct the first defendant to file and serve defences to each first amended statement of claim on or before Friday 17 December 2010. In the event that those defences are filed, the notices of motion filed 19 November 2010 will be dismissed. HIS HONOUR: All right that disposes of all the notices of motion. Now you are concerned Mr Reznytski about what happens to the case now is that right? PLAINTIFF REZNYTSKI: Yes just because we just - we came - last few times we just came like a blank appearance, we came, no proceedings, nothing and this issue we could arrange you know talking directly because I was concerned with-- HIS HONOUR: So what are you asking me to do? PLAINTIFF REZNYTSKI: Okay with this determination or you could refer to us - probably you would make some sort of judgment to refer - Registrar to refer Mina Reznytska to pro bono lawyer because what happens actually I check on legislation if a court refers the pro bono lawyer and pro bono lawyer will act for Mina Reznytska if Mina Reznytska has a winning case I believe it is, my opponents will pay pro bono lawyers his fee, full fees. It somehow it would force both party to come to consent because currently we just keep coming. HIS HONOUR: All right. PLAINTIFF REZNYTSKI: And we see different barristers which as I said three times you know ..(not transcribable).. Mina Reznytska after all that she passed through and-- HIS HONOUR: All right so what you're asking is some sort of referral to a pro bono lawyer. PLAINTIFF REZNYTSKI: Yes for Mina Reznytska yes. HIS HONOUR: But not for you? PLAINTIFF REZNYTSKI: I would prefer for me as well, I'm not entitled because-- HIS HONOUR: Okay I see your point. PLAINTIFF REZNYTSKI: But just - but Judge Levy actually referred my matter also to pro bono lawyer because it's the same matter..(not transcribable).. not many differences. HIS HONOUR: All right. PLAINTIFF REZNYTSKI: So if we lose we pay but if it's our opponents would lose they will pay legal fees, it means that somehow this matter will come to conclusion because currently just is you know it's really causing delays-- HIS HONOUR: All right let's - I can see your point. Let's see what Mr Giagios has to say. PLAINTIFF REZNYTSKI: Thanks a lot, thanks. GIAGIOS: Your Honour I have absolutely nothing to say about the referral to pro bono. HIS HONOUR: No. GIAGIOS: It would be improper for me to make any submissions. HIS HONOUR: Yes. GIAGIOS: I understand Mr Reznytski had previously applied and for whatever reason it didn't happen. HIS HONOUR: It was unsuccessful. GIAGIOS: Whether he's entitled again or not entitled it is not for me to debate, so I make no submissions about that, it's a matter for the Court. So far as the future progress of the matter is concerned your Honour assuming that the statements of claim are not amended again, the matter could proceed relatively quickly towards either mediation or hearing. I'm not sure what the court's calendar is like for next year and when these matters can happen, I don't know how long it will take given the Christmas period, pro bono representation to be given to Mr and/or Mrs Reznytski and Reznytska but I can't see any impediment your Honour following the determination of the pro bono question to the matter being either referred for mediation or for hearing and again I say that on the assumption that - well I say that on the assumption that the statement of claim is not further amended but if Mr Reznytski is legally represented and there are proper bases for an amendment then notices of motion to be filed or perhaps even by consent. HIS HONOUR: All right well my recollection is that and I'm not going to try to look it up now but there is something in one of the practice books that judges are given about references for pro bono. PLAINTIFF REZNYTSKI: Actually I've got a copy of decision of Judge Levy if you want I can-- HIS HONOUR: No - it might be helpful. PLAINTIFF REZNYTSKI: Because it just shows submission because majority of all the delays was that we didn't have legal representation that would force our opponents to reply. HIS HONOUR: No, I thought I might have had something here but it's probably upstairs. What's the - look it's probably helpful, I think we've got to finish for today, I might be able to find something overnight. I just don't know what the system is. Division 9 Pt 7. Were you referred before Mr Reznytski? PLAINTIFF REZNYTSKI: Yes we referred-- HIS HONOUR: And what happened? PLAINTIFF REZNYTSKI: By his order of Justice Levy was in relation to motions only. It seems that it went-- HIS HONOUR: That was for motions only. PLAINTIFF REZNYTSKI: Yes but on the same basis because unrepresented, doesn't speak English and there were of course we have some, you know, don't have knowledge of legislation up to the certain level that is required. So she's entitled - Australian citizen she is entitled to have legal representation. I've got paperwork from Legal Aid, I've got copies from Bar Association. Now is just went to nowhere, so second point is-- HIS HONOUR: All right, what I have in mind is making a referral order. Did you want to add something Mr Giagios? GIAGIOS: I do and this is consistent with my obligations to the Court. So far as Mr Reznytski's referral is concerned I remember on one occasion the Judicial Registrar asked the Registrar Fukuda-Odie to come before the Court because there was some dispute as to the nature of the referral. I don't want to buy into that your Honour but apparently it's on the file and your Honour could make some enquiries and I'll leave it at that. HIS HONOUR: I think I'll leave it to the Judicial Registrar to sort that out, but thank you Mr Giagios. 33. Under UCPR 7.36, being satisfied it is in the administration of justice, I order the referral of Mr Boris Reznytski and Mrs Mina Reznytska to the Registrar for referral to a barrister or solicitor on the Pro Bono Panel for legal assistance for the conduct of the substantive proceedings. HIS HONOUR: Anything else? We will come to costs in a moment. GIAGIOS: In that case your Honour would it be convenient to have the matter come back for directions say in the second or third week of February just to see how Mr and Mrs Reznytski have gone with their referral and whether it's happened or not happened yet? HIS HONOUR: Yes. GIAGIOS: I just don't want the matters to go nowhere from here. HIS HONOUR: No I think that's a fair thing. Mr Giagios is suggesting Mr Reznytski that I should give it a date when it comes back to court to make sure that if need be it can be kept on track and that you're not waiting for too long and Mr Giagios is suggesting sometime in February after the Court resumes and I'm not sure what, somebody will have to help me here, what are the days, any day? DISCUSSION AS TO SUITABLE DATE HIS HONOUR: The Court's last day is 17 December and then it doesn't resume again until early February. PLAINTIFF REZNYTSKI: We could have it on 17 December, in this case Mr Giagios he would file defence before the 17th so we'll have appearance in the Court on the 17th and he would file defence before the 17th. HIS HONOUR: What's going to happen then? PLAINTIFF REZNYTSKI: So we'll just simply see what happens and we'll probably get a hearing date or something like that, because we will know what his stand is, what his position is, so if we could appear on the 17th he would file and serve before 17th. HIS HONOUR: All right, what do you say to that Mr Giagios? GIAGIOS: The only difficulty I have is I think it's unlikely that the Registrar will be able to refer the matter for pro bono assistance between now and the 17th and to get back the response necessary. It could be a wasted appearance. If Mr Reznytski wants to take a hearing date I'm happy to do that but in view of the fact that he seeks pro bono assistance he may need to fit in with whoever it is who takes the matter and they're availabilty also. PLAINTIFF REZNYTSKI: I would be happy to take a hearing date so if we were entitled to get a pro bono lawyer we'll go ahead with that ..(not transcribable).. if it's not we'll just go ahead by ourselves. HIS HONOUR: All right, what I have in mind Mr Giagios is to pull you back one day for the defence, is there any problem with that? GIAGIOS: No problem with that. 34. I amend the orders so that the defence is to be filed on or before Thursday 16 December 2010 and I list this matter before the Judicial Registrar for directions on Friday 17 December 2010. GIAGIOS: Would your Honour also make a note that the directions are either for the purpose of obtaining a hearing date or to confirm the referral to pro bono assistance? 35. The purpose of the directions are to confirm arrangements for pro bono assistance for Mr Reznytstki and Mrs Reznytska and the possible allocation of a hearing date given that Mrs Reznytska is seventy-five years old. PLAINTIFF REZNYTSKI: The last one may I ask your Honour just to publish your decision to put in the court file, thanks. HIS HONOUR: Sure, that might not be available by the 17th though. 36. I direct that a transcript of my judgment be taken out and be made available to the parties after revision, if possible, by 16 December 2010, as well as a transcript of discussion after judgment - only after judgment, nothing before, just the judgment and discussion after the judgment. Costs I have in mind, each party pay their own costs of these motions, yes you're both nodding. 37. So far as the costs of the six motions, three in each sets of proceedings, are concerned, I order each party to bear their own costs. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.