Supreme Court New South Wales Medium Neutral Citation: Edwards v The State of New South Wales [2017] NSWSC 459 Hearing dates: 20 April 2017 Date of orders: 24 April 2017 Decision date: 24 April 2017 Jurisdiction: Common Law Before: Davies J Decision: (1) Leave is given to the Plaintiff to file a further Amended Statement of Claim containing the amendments as identified at [11] of the judgment. (2) Any such further Amended Statement of Claim is to be filed and served by Friday, 5 May 2017. (3) The Notice to Admit Facts dated 21 February 2017 is set aside. (4) The Plaintiff is to pay the Defendant's costs of the Plaintiff's Notice of Motion filed 21 February 2017. (5) The Plaintiff is to pay the costs thrown away by reason of the amendments to the Statement of Claim. (6) The Plaintiff is to pay the Defendant's costs of the Defendant's Notice of Motion filed 7 March 2017. Catchwords: PROCEDURE – amendment – claim for malicious prosecution and wrongful imprisonment – self-represented plaintiff – plaintiff seeks to claim abuse of process – plaintiff seeks amendments to plead evidence EVIDENCE – admissions – notice to admit facts – pleadings not closed – whether notice was premature – whether facts were appropriate to be included in notice Legislation Cited: Civil Procedure Act 2005 (NSW) Uniform Civil Procedure Rules 2005 (NSW) Cases Cited: Gerard Michael McGuirk v The University of New South Wales [2009] NSWSC 253 McGuirk v University of New South Wales [2010] NSWCA 104 Category: Procedural and other rulings Parties: Matthew Edwards (Plaintiff) State of New South Wales (Defendant) Representation: Counsel: In person (Plaintiff) A N Williams (Defendant) Solicitors: Self-represented (Plaintiff) Crown Solicitors Office (Defendant) File Number(s): 2014/349652 Judgment 1. These proceedings commenced on 27 November 2014 claiming damages for false imprisonment and malicious prosecution. The proceedings arose from the Plaintiff being charged on 25 February 2011 with causing grievous bodily harm with intent to murder. He was remanded bail refused until 28 March 2011 when he was granted conditional bail. He was not able to provide the necessary surety and was not released from prison until 5 May 2011. 2. The matter went to trial on 11 February 2013 and on 26 February 2013 he was found not guilty. 3. When the present proceedings commenced the Plaintiff acted for himself. The Statement of Claim was in an unsatisfactory form from a pleading point of view. Subsequently the Plaintiff retained Wright Lawyers & Associates who on 11 May 2015 filed and served an Amended Statement of Claim that clearly articulated the causes of action. A Defence was filed on 4 September 2015. 4. On 7 October 2015 Wright Lawyers & Associates ceased to act for the Plaintiff. There is no evidence of why that was so. Thereafter, the Plaintiff had Harris Wheeler Lawyers act for him from 13 March 2016 until 22 July 2016 when they ceased to act, citing the reason of conflict of interest. Then on 22 August 2016 the Plaintiff retained Nyman Gibson Miralis who acted until 2 December 2016. It is not known why they ceased to act. 5. While Nyman Gibson Miralis acted for the Plaintiff a mediation was held unsuccessfully. Those solicitors also arranged for the preparation and filing of a Statement of Particulars pursuant to r 15.12 Uniform Civil Procedure Rules 2005 (NSW) and an evidentiary statement of the Plaintiff. 6. On 21 February 2017 the Plaintiff, acting for himself, filed a notice of motion which in substance sought leave to amend further the Statement of Claim and to amend the statement of particulars so that, as the Plaintiff asserted, the causes of action matched those contained in the Statement of Claim. In his affidavit in support the Plaintiff said he wished to add a further cause of action being abuse of process, and he wished to fix up some other items that his lawyers had failed to do. 7. On the same day the Plaintiff served a Notice to Admit Facts. The Notice set out 169 so-called facts which it required the Defendant to admit. On 2 March 2017 the Defendant filed a notice disputing all of the facts and noted that it would be filing a notice of motion seeking to set aside the Notice to Admit Facts in any event. That motion was filed on 7 March 2017. That motion and the Plaintiff's motion to amend his Statement of Claim came before me for hearing. 8. The Plaintiff appeared for himself at the hearing of the notices of motion and Mr Adrian Williams of counsel appeared for the Defendant. In advance of the hearing Mr Williams had helpfully prepared an outline of submissions where he dealt with each of the amendments sought to be made by the Plaintiff and also addressed each of the facts, often in groups, that the Plaintiff required to be admitted. 9. The Defendant did not oppose all of the proposed amendments to the Statement of Claim. However, the addition of a claim for abuse of process was opposed, as were a number of other amendments where it was said the Plaintiff was seeking to add matters of evidence and material that went beyond particulars. 10. At the hearing of the motions I indicated to the Plaintiff that a number of matters that he sought to amend would not be allowed and, in particular, the addition of a so-called claim for abuse of process would not be allowed. I said that I would provide brief reasons which set out the amendments for which I was prepared to grant leave. Amendments to the Amended Statement of Claim 1. (a) The reference to Wright Lawyers & Associates on the coversheet should be removed as should the references to "Wrongful Continued Arrest" and "Abuse of Process". It is not necessary, in any event, to specify the causes of action on the coversheet of the pleading. (b) The amendment to paragraph 5 is allowed. (c) The amendment to paragraph 10(e) is disallowed – it sets out evidence and not particulars. (d) The amendment in paragraph 10(g) is disallowed – it sets out evidence and not particulars, it contains comment ("making Fings (sic) fictional story more unbelievable") and the date is inconsistent with what appears to be the same assertion in paragraph 20(j). (e) The amendment in paragraph 10(i) is allowed. (f) The amendments in paragraphs 10(n), (o), (p) and (u) are disallowed – they plead matters of evidence and contain comment. (g) The amendments in paragraph 10(s) are partly allowed so that the paragraph reads: That the ability to identify the alleged offending vehicle as claimed was improbable when regard was had to the crime scene and made more so when the alleged note could not be produced. (h) Corrections should be made to the lettering of sub-paragraphs "u", "r" and "s" so that they read "r", "s" and "t". (i) The amendments to paragraph 12(g) are disallowed – they contain comment. (j) The amendments to paragraph 15 are allowed. (k) The amendments to paragraph 17 are allowed. (l) The amendments to paragraph 20(g) and (j) are disallowed – they plead evidence. (m) The amendments to paragraph 20(m) are allowed. (n) The amendments to paragraph 20(jj) are disallowed except for the inclusion of the word "eventually". (o) Paragraph 20(y) may be amended so that it reads: That the gunpowder residue report was not in fact served on the plaintiff until months after the alleged event. The words "closer to trial or by subpoena thereby intentionally depriving the defence of that exculpatory information" may be deleted. The addition of the second sentence commencing "In fact" is disallowed. (p) The amendments in paragraph 20(ab) and (ac) are disallowed – they contain comment. (q) The amendments in paragraph 20(ae) are allowed. (r) The lettering of the sub-paragraphs of paragraph 20 should be corrected so that they read in alphabetical order from "a" to "kk". (s) The amendments in paragraph 23(a) should be disallowed – they plead evidence and contain comment. (t) The amendments in paragraphs 24, 25, 26, 27 and 28 are allowed. (u) The amendments in paragraph 31(ii) are disallowed – they contain comment. (v) The amendments in paragraph 32 are allowed except for the words "all coincidentally around the plaintiff's birthday". (w) Paragraph 34 is disallowed. This paragraph purports to plead a so-called tort of abuse of process. Counsel for the Defendant correctly points out that there is no such tort. There is a tort of collateral abuse of process but it is concerned with something entirely different from the matters about which the Plaintiff complains. It is clear from what is set out in paragraph 34 and from what the Plaintiff said to me in Court that his complaint in this regard is one about the way he asserts the Crown has defended the proceedings. There is nothing in the material that I have seen that suggests that there has been any improper approach to the defence of the proceedings by the Crown. There is no basis for the complaint. 1. The Plaintiff has been largely unsuccessful in seeking to amend the Statement of Claim. All of the proposed amendments of substance have been disallowed. In the circumstances, the Plaintiff should pay the Defendant's costs of the Plaintiff's Notice of Motion filed 21 February 2017. In addition, in accordance with usual practice, the Plaintiff should pay the Defendant's costs thrown away by reason of the amendments which have been allowed. Notice to Admit Facts 1. The principal purpose of a Notice to Admit Facts and a Notice to Admit Authenticity of Documents is to facilitate proof. In particular, it is to facilitate proof of incidental matters or matters of some precondition which may not be in issue. However, until issue is joined on the pleadings what will and will not be contested will not be apparent. Although there may be some cases where it may be appropriate to seek an admission at a very early stage (and r 17.3 UCPR contains no time stipulation) ordinarily it would be inappropriate to serve a Notice to Admit Facts until the pleadings are completed: Gerard Michael McGuirk v The University of New South Wales [2009] NSWSC 253 at [98]. That holding was apparently not disapproved on appeal although the appeal was allowed: McGuirk v University of New South Wales [2010] NSWCA 104 at [130]. 2. However, prematurity is not the only problem with the Notice as served. I do not intend to traverse each of the facts sought to be admitted. It is enough to make some general comments. 3. Paragraphs 12-20, 56-65 require admissions of material contained in documents. On the assumption that the material is relevant (and there may be some doubt about the relevance of some of the material) requiring admission of facts rather than seeking admissions as to the authenticity of documents is inappropriate. 4. Many of the paragraphs are expressed so generally that admission is not possible (e.g. paragraphs 30-38, 46-48, 67). Some paragraphs are incapable of admission by the Defendant (e.g. paragraphs 110-113, 152-157). Many of the paragraphs are assertions of a conclusion by the Plaintiff for which he seeks admission (e.g. paragraphs 30-38, 56-58, 145). A number deal with what appears to be an irrelevant event (e.g. paragraphs 24-34 5. I am satisfied that the Court has the power pursuant to r 2.1 UCPR to set aside the Notice to Admit Facts: McGuirk (CA) at [144] and [160]ff. I am also satisfied that there is power in s 61(1) of the Civil Procedure Act 2005 (NSW) in the present case because I consider that the setting aside of the Notice to Admit Facts in its present form is more likely to bring about a speedier determination of the real issues between the parties to the proceedings. That is particularly so because, as noted, the pleadings are not complete and the issues are not defined, and many of the matters raised by the Notice to Admit Facts are irrelevant to what is known of the issues on the present state of the pleadings. The introduction of irrelevant matters in such a lengthy Notice is likely to delay the final speedy determination of the proceedings. 6. The Notice to Admit Facts must be set aside. Conclusion 1. I make the following orders: (1) Leave is given to the Plaintiff to file a further Amended Statement of Claim containing the amendments as identified at [11] above. (2) Any such further Amended Statement of Claim is to be filed and served by Friday, 5 May 2017. (3) The Notice to Admit Facts dated 21 February 2017 is set aside. (4) The Plaintiff is to pay the Defendant's costs of the Plaintiff's Notice of Motion filed 21 February 2017. (5) The Plaintiff is to pay the costs thrown away by reason of the amendments to the Statement of Claim. (6) The Plaintiff is to pay the Defendant's costs of the Defendant's Notice of Motion filed 7 March 2017. ********** 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. Decision last updated: 24 April 2017