New South Wales Supreme Court CITATION : Reznitsky v Quinn & Ors [2007] NSWSC 150 HEARING DATE(S) : 26 February 2007 JUDGMENT DATE : 6 March 2007 JURISDICTION : Common Law Division JUDGMENT OF : Studdert J DECISION : (1) I order that the claim against the tenth defendant in the fourth amended summons be struck out. (2) I order that the plaintiff pay the tenth defendant's costs of the notice of motion. Uniform Civil Procedure Rules, Pt 13 r 13.4 LEGISLATION CITED : Supreme Court Rules Pt 51B r 6 Crimes (Local Courts Appeal and Review) Act 2001, ss 18, 19, 52, 53 CASES CITED : General Steel Industries Inc. v Commissioner for Railways (1964) 112 CLR 125 Boris Reznitsky (Plaintiff) Margaret Quinn (1st Defendant) Kyle Williams (2nd Defendant) Jon Ward (3rd Defendant) Ian Priest (4th Defendant) PARTIES : Howard Fox (5th Defendant) Vanessa Robinson (6th Defendant) Colin Moar (7th Defendant) Jonathan Fitisemanu (8th Defendant) Jared Cowan (9th Defendant) The State of New South Wales (10th Defendant) FILE NUMBER(S) : SC 12176/05 COUNSEL : In person (Plaintiff) C. Lonergan (6th, 10th Defendants) SOLICITORS : Not applicable Crown Solicitor's Officer (6th, 10th Defendants) IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION STUDDERT J Tuesday 6 March 2007 12176/05 BORIS REZNITSKY v MARGARET QUINN & ORS JUDGMENT 1 HIS HONOUR: The plaintiff, Boris Reznitsky, has filed a number of summonses, and most recently and relevantly, his fourth amended summons. In that summons he has named ten defendants. The tenth defendant is the State of New South Wales and that defendant alone has filed a notice of motion seeking an order that the fourth amended summons be struck out and an order for costs for that defendant and for the sixth defendant. I was informed on the hearing of the application that the only defendants who have been served with the fourth amended summons are the sixth and tenth defendants. 2 Before considering the merits of the tenth defendant's application, it is desirable to refer to the proceedings which prompted the filing of the fourth amended summons. 3 Criminal proceedings were brought against the plaintiff in the Downing Centre Local Court. He was there prosecuted, having been charged with assault occasioning actual bodily harm on a person named Colin Moar. The first defendant, Magistrate Quinn, conducted the hearing in that court and found the charges to be proved. The events giving rise to the charge took place at St Vincent's Hospital on 23 February 2002. The hearing in the Local Court was a lengthy one, following which, on 21 January 2004, the magistrate proceeded to convict the plaintiff and placed him on a bond to be of good behaviour for a period of eighteen months. 4 The plaintiff appealed to the District Court, filing a notice of appeal on 5 February 2004. The appeal was dismissed by his Honour Judge Nield on 19 April 2005. In his judgment, Nield DCJ recorded that the plaintiff appeared in the District Court in relation to the appeal on sixteen occasions but on 18 April 2005 the plaintiff left the court after the judge had refused an adjournment application. The judge proceeded to dismiss the appeal on two grounds: (i) failure to prosecute the appeal; (ii) his Honour also dismissed the appeal on the merits. 5 The plaintiff thereafter commenced proceedings in this court by summons filed on 24 May 2005, some sixteen months after the proceedings in the Local Court had been concluded. In this court the plaintiff has filed a number of amended summonses, and he presently proceeds on the document the subject of the strike out application, that is to say his fourth amended summons. 6 The plaintiff does not have the benefit of legal representation. This becomes apparent when one considers the content of the fourth amended summons. In this document it is stated in para 2: "The conviction was imposed after fifteen days trial, of an offence inflicting actual bodily harm upon the person claiming was 'Colin MOAR' under s59 Crimes Act 1900. However, it seems sufficient evidences were presented to the court, that the person claiming as 'Colin MOAR', even was not in the place and could not possibly be involved into the incident. The issue raised, that the conviction was unreasonable and could not be supported by the evidence. Further, supportive evidences were presented to the court, that the applicant – Reznitsky Boris, was actually the victim of the incident." 7 The document proceeds: "3. Initially this appeal was filed pursuant to s52 CRIMES (Local Court Appeal and Review) Act 2001 on the grounds involve the questions of the law alone against the following: first defendant – Margaret QUINN (LCM) second defendant – constable Kyle WILLIAMS; third defendant – constable Jon WARD; forth defendant – constable Ian PRIEST; fifth defendant – sen. constable Howard FOX; sixth defendant – sen. constable Vanessa ROBINSON; seventh defendant – Colin MOAR; eighth defendant – Jonathan FITISEMANU; ninth defendant – Jared COWAN" 8 In para 4 (referring to one of the number of notices of motion which he has filed), the plaintiff sets out grievances in these terms: "…the plaintiff seeking the decision/judgement, as it was outlined in B.Reznitsky's Notice of Motion dated 20 January 2006, that: 4.1 Plaintiff's arrest on 23 February 2002 was performed at no reason. 4.2 The Police failed to advise the applicant about the reason of his arrest and the following detention. 4.3 The Police acted in a bad faith and prosecution was instituted unlawfully, without any reasonable cause. 4.4 The Police failed to investigate relevant matter that suggested, that the plaintiff was, actually, the victim of the incident. 4.5 The proceeding in the Local Court was initiated without reasonable cause or in bad faith." 9 Paragraph 5 is in these terms: "Also, this forth amended application is filed under common law practice to apply to superior Supreme Court for its supervisory jurisdiction for judicial review of the actions taken at Local Court, and refers to the questions of the law upon the sections of State and Commonwealth laws, as well as very fundamental principles of legal proceeding against: first defendant – Margaret QUINN (LCM) The Plaintiff claims, that the legal proceeding against him and the decision made by Margaret QUINN (LCM) was substantial abuse of the process, miscarriage of justice, error of law, in particular the breach of procedural fairness and affected by the fraud. The applicant is seeking the decision to have the conviction of Local Court quashed for substantial miscarriage the justice, error of the law, made contrary to the law and affected by the fraud. Strictly speaking, this appeal should be conducted by Police Integrity Commission and Independent Commission against Corruption of NSW, under appropriate sections of CRIMES Acts, Commonwealth and NSW." 10 Then, the plaintiff alleges he was denied basic civil rights in para 6: "Also, this application raises the question of law about very fundamental principles of human and civil rights alleged violated or denied by the State of NSW and its public officers, conducting for the years defective legal proceedings under criminal law against the citizen of this country, and clearly profiteering from such conduct at the expense of the public/taxpayers. The applicant is seeking the decision/judgment against: tenth defendant – the State of NSW, that he was denied of basic Civil Rights, set out in SCHEDULE2 of HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION ACT 1986 (Cth) (further – the Act), which is also International Covenant on Civil and Political Rights, guaranteed by the Australian Federal Government." 11 The plaintiff then sets out what he refers to as the grounds for his claim to relief in this court. These grounds are set out over three pages and it is contended that the magistrate "conducted unlawful legal proceedings" and that those proceedings were an abuse of the court process. It is contended that the magistrate did not act within her jurisdiction and that the plaintiff was denied his civil rights. Reference is made to the Human Rights and Equal Opportunity Commission Act and to certain of the articles contained in it. The plaintiff alleges that perjury was committed in the case against him. This is a broad summary of what the plaintiff has referred to as the grounds for his claim to relief, more fully set out in pp 4-6 of the fourth amended summons. 12 In moving to have the amended summons struck out, the tenth defendant relies upon Pt 13 r 13.4 of the Uniform Civil Procedure Rules 2005. The relevant rule is in the terms following: " 13.4 Frivolous and vexatious proceedings (1) If in any proceedings it appears to the court that in relation to the proceedings generally or in relation to any claim for relief in the proceedings: (a) the proceedings are frivolous or vexatious, or (b) no reasonable cause of action is disclosed, or (c) the proceedings are an abuse of the process of the court, the court may order that the proceedings be dismissed generally or in relation to that claim. (2) The court may receive evidence on the hearing of an application for an order under subrule (1)." 13 The exercise of the power conferred by the above rule is to be exercised only in a case where entitlement to the relief sought is clearly established: see General Steel Industries Inc. v Commissioner for Railways (1964) 112 CLR 125. It is appropriate to make the order sought in a case where it would be futile to allow the proceedings to go to trial. 14 I am persuaded by the submissions advanced by Mr Lonergan that it would indeed be futile to allow this matter to proceed against the tenth defendant, substantially for the reasons advanced by Mr Lonergan in his submissions. 15 The affidavit evidence relied upon by the tenth defendant is to be found in the affidavit of Warren Abadee sworn on 23 November 2006. The content of that affidavit evidences that following the incident at St Vincent's Hospital on 23 February 2002 the applicant was arrested by police officers and taken to Kings Cross Police Station. He was there detained until 24 February 2002 and then released on bail. There were then the proceedings in the Local Court followed by the appeal to the District Court. The tenth defendant was not involved in either the proceedings at first instance or in the appeal, and its joinder is inappropriate for this reason alone. 16 It is evident from the fourth amended summons that the plaintiff's grievances are related to the conviction in the Local Court and that what the plaintiff is seeking to do is to challenge that conviction in this Court having earlier chosen to appeal to the District Court where his appeal was dismissed. 17 The magistrate's reasons for finding the offence proved against the plaintiff are set out in the transcript of 21 January 2004. It is recorded (at p 26) that the magistrate found beyond reasonable doubt on the facts and evidence before her Honour that the plaintiff assaulted Colin Moar and caused him actual bodily harm on 23 February 2002. 18 The reasons for the subsequent dismissal of the appeal in the District Court are set out in the reasons for judgment of his Honour Judge Nield delivered on 19 April 2005. There his Honour said (at [13]-[14] of his reasons): "13. However, as to the merits of the appellant's appeal, the appellant believes that he is the victim of a conspiracy involving the nursing and security staff at the hospital, the police at Kings Cross Police Station and the prosecuting authority, but, in all of the evidence before the Magistrate, there is simply nothing to support the appellant's belief and everything to confound it. The plain and simple fact is that the appellant, being concerned for his father's well being, his father having been informed that one of his legs would need to be amputated because of gangrene in the leg, and being worried that his father, who exhibited bruises on the inside of his arms, believed that his father may have been subjected to some undefined abuse by the hospital's nursing staff, and, in that belief, caused such upheaval in the ward, which included his use of physical force upon nursing and security staff, which resulted in his being physically restrained by security staff before being taken away from the hospital by police. 14. The evidence of the appellant's assaults upon the nursing and security staff, including, specifically, the complainant, and the evidence of the injuries suffered by the complainant, being an actual injury, but one not serious, life-threatening or permanent, was over-whelming. The Magistrate could not have done otherwise than to find the offence to be proved, particularly after when she had twice enquired of the appellant as to whether or not he relied upon self-defence, something that he said that he did not rely upon." 19 The decision in the Local Court involved findings of fact. That those findings were made is evident from a perusal of the transcript in the Local Court of 21 January 2004. There is nothing in the fourth amended summons which persuades me that the findings of fact made were affected by any error of law or that it is arguable that there was any such error. The facts were identified by the magistrate which supported the elements of the offence charged and in respect of which the applicant was convicted. 20 Having been convicted in the Local Court, the plaintiff had two possible avenues of appeal: (i) an appeal to the District Court; (ii) an appeal to the Supreme Court. The plaintiff pursued avenue (i). 21 Appeal to the District Court is by way of rehearing, with some opportunity in an appropriate case for oral evidence to be given: Crimes (Local Courts Appeal and Review) Act 2001, ss 18 and 19. The alternative avenue of appeal to the Supreme Court is more limited, and the plaintiff's opportunity by way of appeal to this court is limited to appeal as of right on a ground or grounds which involve a question or questions of law only: see s 52 of the said Act. There was also the opportunity for appeal to this court on a question of fact or a question of mixed fact and law by leave (see s 53 of the Act). 22 If there was any appealable error enlivening the jurisdiction of this court, the time for appeal was governed by the Rules of Court, which required that an appeal be instituted within twenty-eight days: see Pt 51B r 6 of the Supreme Court Rules in place at the relevant time. 23 It is to be observed then that even if there was an available avenue of appeal in this court, the time for pursuing it had expired long before the plaintiff filed the summons which instituted proceedings in this court. There is power for the court to extend any time restraint in an appropriate case but there is not a scintilla of evidence to indicate that when the plaintiff commenced proceedings in this court there was any proper reason for time to be extended. 24 Putting aside that problem, no identifiable error of law is detectable either in the transcript from the Local Court which is presently before this Court or in the reasons for judgment of his Honour Judge Nield. I have read not only the fourth amended summons and the various notices of motion referred to in it, but also the document recently filed by the plaintiff headed "Notice of Motion to Claim and Exercise Constitutional Rights and Require the Presiding Judge to Rule upon this Motion, and all Public Officers of this Court to Uphold Said Rights." I have found nothing in those various notices of motion or in the summons such as gives rise to an arguable issue of law for consideration in this Court. 25 For the above reasons, I conclude that the tenth defendant is entitled to succeed on its notice of motion. 26 Costs should follow the event. I refer to the costs of the tenth defendant, but I make no order for the costs of the sixth defendant. Formal orders 27 1. I order that the claim against the tenth defendant in the fourth amended summons be struck out. 2. I order that the plaintiff pay the tenth defendant's costs of the notice of motion. ********** 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. 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