Fregnan v Stanizzo; Stanizzo v Badarne; Stanizzo v State of New South Wales [2019] NSWSC 628

Supreme Court New South Wales

Medium Neutral Citation: Fregnan v Stanizzo; Stanizzo v Badarne; Stanizzo v State of New South Wales [2019] NSWSC 628 Hearing dates: 28 and 29 May 2019 Date of orders: 31 May 2019 Decision date: 31 May 2019 Jurisdiction: Common Law Before: Harrison J Decision: See judgment Catchwords: PROCEDURE – civil procedure – where plaintiff claims damages for malicious prosecution – whether plaintiff should be granted leave to tender statement previously rejected – whether statement is relevant to a fact in issue – whether tender of statement would cause unfair prejudice to defendant – where plaintiff also seeks leave to tender series of tax invoices – whether tax invoices qualify as evidence in reply – whether tender of tax invoices would cause unfair prejudice to defendant – tender of statement and tax invoices rejected

PROCEDURE – civil procedure – where defendant seeks to set aside plaintiff's notices to produce – whether notices to produce have legitimate forensic purpose – notices to produce set aside Cases Cited: Stanizzo v Badarne [2019] NSWSC 74 Category: Procedural and other rulings Parties: Karina Vivianna Fregnan Vincent Francis Stanizzo Muhammad Badarne State of New South Wales Representation: Counsel: C Waterstreet and M Rollinson (V Stanizzo) A Macauley (M Badarne) N Newton and T Buterin (State of NSW) File Number(s): 2012/129649; 2014/92425; 2016/296293 Publication restriction: Nil

Judgment 1. HIS HONOUR: Mr Stanizzo has sought leave to read a statement made by him dated 21 February 2019. I previously rejected an application to read the statement upon the basis that it was not relevant to any issue in the proceedings. Mr Stanizzo has revived the application in his case in reply. 2. The statement is in the following terms: "In 2008, I was acting for my then client Mr George Dimitrovski, the principal of Bevans Real Estate agency, in the matter of the misappropriation of funds by a former employee of the agency, Ms Robyn Boyd-Jones. Rental bonds had been collected from tenants by Boyd-Jones on behalf of the agency but she had failed to remit them to the Rental Bonds Board but had misappropriated them to her own use. 2. I contacted Wollongong Police about the matter. Detective Sergeant Jason Hogan, and another officer whose name I do not remember, visited my office. I explained the situation to them and said that a report would be obtained from an accountant. Hogan said that when such report was available I should contact Police again. 3. A report was obtained by Mr Melvin Bell, accountant, and I arranged to visit Hogan at Wollongong Police Station. I did so with my client Mr Dimitrovski. I handed a copy of the report to Hogan and the conversation was to the following effect. Stanizzo: 'This is the report prepared by Mel Bell, the accountant. It contains evidence of many misappropriations of the rental bonds that have been received by Boyd-Jones but not sent on to the Rental Bonds Board as required by law. This lady has now absconded to Queensland. There have been some telephone discussions between Bell and her about returning the money. My client believes she should be charged and extradited to New South Wales.' Hogan flicked through the pages of the report, sat back and said: 'I'm not prepared to waste Police resources on this matter. We are not a debt collector for your client.' Stanizzo: 'But it is your duty to charge this lady for embezzlement and misappropriation. As you know, they are criminal offences.' Hogan: 'Well, Police will not be doing anything about this. Your client can take civil action to recover the money.' Stanizzo: 'I don't need to be told what to do. I'm saying to you what you should be doing about the criminal offences committed by this lady.' Hogan looked at me silently. Stanizzo: 'Are you going to do anything about it?' Hogan: 'No.' I stood up and said: 'Your attitude would have been different if my client was an Australian and the perpetrator was a Macedonian.' Hogan: 'Get out of here, before I have you thrown out.' 4. My client and I walked out of Hogan's office. On my way out I turned around and said to Hogan: 'You'll be hearing from me about this is [sic] due time.' 5. My client was then in dire financial situation and had no desire to get into another dispute with the Police. 6. About two years ago, I went into the showroom at Corbin Motors, Flinders Street, Wollongong. I saw that Hogan was there looking at a car on display. I spoke to him. Stanizzo: 'Hogan, don't hide behind the car. You put that idiot Murdock on to me to get me, didn't you?' Hogan looked at me, said nothing and walked away. I have not seen or heard from Hogan since then." 1. Mr Stanizzo contends that this statement is capable of supporting an inference that former Detective Murdock acted maliciously in prosecuting him. That is said to be so inasmuch as Detective Hogan was Mr Murdock's superior at the Wollongong Police Station when the first incident described in the statement occurred and that an inference arises that Mr Murdock was or may have been influenced against Mr Stanizzo by Detective Hogan whose animus for Mr Stanizzo is said to be evident from the manner in which he dealt with Mr Stanizzo's report about his client. Mr Stanizzo contends that this inference is strengthened by the fact that Detective Hogan was Mr Murdock's superior officer in Wollongong when Mr Murdock investigated the complaints against Mr Stanizzo made by Ms Fregnan and Mr Badarne and eventually charged him with the relevant offences. 2. The State of New South Wales objects to the tender. First, the statement was never included in the court book in accordance with the directions of Rothman J and Mr Stanizzo should not now be entitled to rely upon it in his case in chief if an application to reopen his case for that purpose is made. Secondly, the statement does not qualify as evidence in reply because the fleeting references to Detective Hogan in some COPS reports that have been tendered do not provide a sufficient basis for its tender as such. 3. In my opinion, there is a significantly more fundamental basis for rejecting the statement. Mr Stanizzo suspects that Mr Murdock was or might have been influenced against him by Detective Hogan's apparent disaffection for Mr Stanizzo. In my opinion, the statement does not even closely approach the type of evidence that would warrant the drawing of an inference of that type. There is no evidence that Detective Hogan ever said anything to Mr Murdock about this incident or that he expressed any opinion, favourable or otherwise, about Mr Stanizzo that he might have held. The fact that both men worked in the same police station and that they were both concerned with police action taken with respect to the charges brought against Mr Stanizzo does not in my opinion mean that his statement thereby becomes relevant to the proof of a fact in issue in these proceedings. 4. I accept that proof by Mr Stanizzo of the existence of some anterior or pre-existing malice towards Mr Stanizzo on the part of Mr Murdock may be relevant to the question of whether or not he maliciously instituted or maintained the proceedings against him. The somewhat unremarkable fact that Mr Murdock worked as a junior officer to Detective Hogan who acted dismissively, and on one view inappropriately, when dealing with Mr Stanizzo's report, does not easily translate to proof, even by inference, that Mr Murdock might or must also have shared the same attitude arguably held or evinced by Detective Hogan merely as the result of the apparently close professional relationship that they shared. 5. I am also of the view that it is now too late in the day to permit this statement to be utilised by Mr Stanizzo. It would be unfair to the State to receive it in circumstances where Detective Hogan's response has not been sought and where further investigation of the circumstances referred to in the statement has not been undertaken. Moreover, the circumstances described in the statement are not offered as particulars of malice in the current statement of claim. Having regard to the somewhat tenuous relationship between the events described and the malice alleged, the absence of particularisation of these events is arguably quite significant. 6. I reject the tender of the statement. 7. Mr Stanizzo next tenders a series of tax invoices issued to what the parties have described or referred to as the Ayoub interests. That description encompasses a selection of clients of the firm V F Stanizzo of which at all relevant times Mr Stanizzo was the principal and for whom Mr Badarne worked at one time as an employed solicitor. The tender is made having regard to the following (briefly described) circumstances. 8. Mr Stanizzo alleges that Mr Badarne prosecuted him maliciously on charges of intimidation upon the basis of things said during conversations between Mr Stanizzo and Mr Badarne. These conversations are recorded and transcribed. Mr Stanizzo contends that Mr Badarne was motivated to complain to the police about these matters because of a breakdown in their professional relationship, including significant disputes over the terms and implementation of costs sharing arrangements, in particular in accordance with a Deed of Settlement made 30 July 2010 and the making of complaints by each man against the other to the Law Society or the Office of the Legal Services Commissioner. One of the areas of dispute between the men concerns the validity or otherwise of a deed pursuant to which Mr Badarne was paid the sum of $200,000 on certain conditions in order to assist him with the purchase of a house. Mr Stanizzo alleges in these proceedings that the money so paid was in fact a payment by the Ayoub interests of costs due to the firm, which were or would have become subject to the costs sharing arrangement but which were improperly diverted by Mr Badarne to his own personal use under the cloak of an allegedly sham transaction. 9. The tax invoices that Mr Stanizzo now wishes to tender are said to be memoranda of fees due to V F Stanizzo from the Ayoub interests in respect of monies owing to the firm as professional fees which the Ayoub interests instead paid, at least in part, allegedly to Mr Badarne. Mr Stanizzo wishes to tender the invoices to prove not merely that they were issued but also to establish that Mr Stanizzo maintained that the amounts claimed were in fact due and payable to the firm. Mr Stanizzo proposes to rely upon the invoices in order to give content to his allegation that Mr Badarne improperly diverted fees owing to the firm by the Ayoub interests and to negative the suggestion that there was nothing owing for Mr Badarne to deal with in the way alleged. 10. Mr Badarne does not oppose the tender of one of the invoices dated 10 March 2010 upon the basis that it is admitted as proof only of the fact that it was issued for the amount that it claims. All of the invoices are objected to by Mr Badarne to the extent that Mr Stanizzo tenders them for unlimited purposes. 11. The invoices are in fact evidence that Mr Stanizzo wishes to rely upon as part of his case in chief. They do not and, having regard to the evidence tendered by Mr Badarne, could not qualify as evidence in reply. 12. In my opinion the tender should be rejected. This material was not included in the court book and should have been. If the tender is pressed upon the basis that the amounts claimed are owing in fact, Mr Badarne should have been given notice of the proposed tender in order to take such steps, or conduct such investigations, as he may have desired in order to verify their authenticity. He would not have such an opportunity to do so if the documents were admitted into evidence at this very late stage of the proceedings. 13. I note in passing, however, that the schedule to the Deed of Settlement dated 30 July 2010 contains a series of references to files in respect of which Mr Badarne and Mr Stanizzo had agreed to share fees. Several of the files were files that could be described as being in respect of work undertaken on behalf of the Ayoub interests. There is no suggestion that these files were not genuine matters conducted by the firm and that work in progress or completed on these files would be a valuable asset of the firm. The inference that Mr Stanizzo wishes to promote, that there were real monies owing which Mr Badarne might have been able to divert to his own use, is already available on the evidence tendered so far. I hasten to add in that context that Mr Badarne, through his counsel, denies the allegations of impropriety of any sort. 14. I reject the tender of these tax invoices. 15. Mr Stanizzo finally has issued a series of notices to produce. There are eight such notices in all. Not all of the requests for production are either current or controversial. By notice of motion dated 20 May 2019, Mr Badarne seeks to set aside, or to restrain Mr Stanizzo from calling upon, all of the notices in whole or in part. He relies upon his own affidavit sworn 20 May 2019.