Sourian v State of NSW [1999] NSWSC 1173

New South Wales Supreme Court CITATION : Sourian v State of NSW [1999] NSWSC 1173 CURRENT JURISDICTION : NSWSC FILE NUMBER(S) : 020124/95; 020125/95 HEARING DATE(S) : 08/11/99, 09/11/99, 10/11/99, 11/11/99, 12/11/99, 15/11/99 JUDGMENT DATE : 9 December 1999

PARTIES : Jake Sourian v State of New South Wales & Ors Gerier Agop Magarditch & Ors v State of New South Wales & Ors JUDGMENT OF : James J

LOWER COURT JURISDICTION : Supreme Court (Master) LOWER COURT FILE NUMBER(S) : LOWER COURT JUDICIAL OFFICER : Master Harrison

In Person - Plaintiff K Burke - 1st Defendant COUNSEL : I Mescher - 2nd Defendant R Horsley - 3rd Defendant G Lindsay SC - 4th Defendant J Thomson - 5th Defendant Unrepresented - Plaintiff I V Knight - 1st Defendant SOLICITORS : Moray & Agnew - 2nd Defendant Curwood & Partners - 3rd Defendant Middleton Moore & Bevins - 4th Defendant Norton Smith & Co - 5th Defendant CATCHWORDS : Malicious Prosecution - Conspiracy - Supreme Court Rules Pt33 r6 - Pt13 r5 DECISION : 020124/95 - Appeal allowed in part.; 020125/95 - Appeal dismissed

THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

JAMES J

Thursday 9 December 1999

020124/95 - Jake Sourian v State of New South Wales & Ors 020125/95 - Gerier Agop Magarditch & Ors v State of New South Wales & Ors

JUDGMENT 1 HIS HONOUR: These are appeals from decisions of Master Harrison given on 18 September 1998 in proceedings No.20124/95 and proceedings No.20125/95. 2 In the appeal in proceedings No.20124/95 the appellant is Mr Jake Sourian, who is the plaintiff in the proceedings, and the respondents are the State of New South Wales, Francis Egan trading as Liability & All Claims, VACC Insurance Co Limited, Caltex Oil (Australia) Pty Limited and the Australia and New Zealand Banking Group Limited. It is convenient to refer to these proceedings as "the Sourian proceedings". 3 In the appeal in proceedings No.20125/95 the first two appellants are Gerier Agop Magarditch and Sonya Magarditch, who are Mr Sourian's parents. In the notice of appeal instituting the appeal Magic Australia Pty Limited is named as a third appellant. I will refer to the first two appellants as Mr Magarditch and Mrs Magarditch, to the third named appellant as "Magic" and to the proceedings No.20125/95 as "the Magarditch proceedings". The respondents to the appeal in the Magarditch proceedings are the same five corporate or natural persons as are respondents to the appeal in the Sourian proceedings. 4 In this judgment I will refer to the first respondent in both appeals as "the State", to the second respondent as Mr Egan or "the loss assessor", to the third respondent as "VACC" or "the insurer", to the fourth respondent as "Caltex" and to the fifth respondent as "ANZ" or "the Bank". 5 The substantive orders made by Master Harrison in the Sourian proceedings were that a notice of motion filed by Mr Sourian on 29 June 1998 be dismissed and that the proceedings generally be dismissed. In the notice of motion Mr Sourian had sought orders giving leave to join Magic as a plaintiff and ANZ as a fifth defendant. 6 The substantive orders made by Master Harrison in the Magarditch proceedings were that a notice of motion filed on behalf of the plaintiffs Mr and Mrs Magarditch on 15 July 1998 be dismissed and that the proceedings generally be dismissed. In the notice of motion Mr Magarditch had sought orders that:-