Citation: Mina Reznytska v State of New South Wales; Boris Reznystki v State of New South Wales [2010] NSWDC 326
Court: District Court of New South Wales
Date: 7 December 2010
Judge(s): Cogswell SC DCJ
Background
A mother and son commenced separate proceedings in the District Court arising from an incident on 28 January 2008. They alleged that after a negative random breath test, a number of police officers attacked them. The son pleaded causes of action in assault, wrongful arrest, and unlawful detention; the mother pleaded assault and wrongful detention.
Both plaintiffs were self-represented, with the son also speaking on behalf of his mother, whose first language is not English. The State of New South Wales was the relevant defendant at this stage of the proceedings.
The matter came before Cogswell SC DCJ on a cluster of competing notices of motion. The State sought to strike out large portions of each statement of claim; the plaintiffs sought to dismiss the State's motions; and the plaintiffs separately sought judgment against the State on the basis that it had not yet filed a defence.
Legal Issues
- Whether individual police officers could be named as defendants alongside the State, given the vicarious liability framework under the Law Reform (Vicarious Liability) Act 1983
- Whether the statements of claim contained causes of action (principally malicious prosecution) that were unavailable to the plaintiffs and had already been struck out by a Judicial Registrar
- Whether various paragraphs and particulars pleaded material facts or were otherwise appropriate for inclusion in a statement of claim
- Whether the plaintiffs were entitled to judgment because no defence had yet been filed
Decision
The court granted the State's notices of motion in large part and dismissed the plaintiffs' competing motions. Proceedings against the individually named police officer defendants (the fourth to twelfth defendants in the son's amended statement of claim) were dismissed outright. The court reasoned that because section 9B(2) of the Law Reform (Vicarious Liability) Act 1983 prevents claims being brought directly against police officers, those defendants should not be left in a state of ongoing jeopardy and dismissal was more appropriate than merely removing their names.
Extensive portions of the son's statement of claim were struck out. References to the Magna Carta and the Evidence Act were removed as matters of submission rather than pleading. A large block of paragraphs (27 to 52 and 54 to 70) was struck out in full on the basis that they related entirely to malicious prosecution, a cause of action unavailable to the son because his conviction had been upheld on appeal and acquittal is an essential element of such a claim. Other specific paragraphs and sub-clauses were struck out for failing to plead material facts.
The plaintiffs' application for immediate judgment against the State for failure to file a defence was refused. The State indicated through counsel that it intended to file a defence before 17 December 2010, and the court accepted that course, listing the matter before the Judicial Registrar for directions shortly after. The court also noted the mother's age of seventy-five years and the possibility of referring both plaintiffs for pro bono legal assistance, directing that those arrangements be confirmed at the directions hearing.
Each party was ordered to bear their own costs of all six notices of motion across the two sets of proceedings.
Orders Made
- Proceedings against the fourth to twelfth named defendants in the son's first amended statement of claim were dismissed
- Paragraphs 3, 4, 13, 14, 15, 27 to 52, and 54 to 70 of the son's statement of claim were struck out
- Portions of paragraphs 5, 21, 25, 26, and 71 were struck out, with specified sub-clauses and particulars retained
- Specific words referring to police officer defendants were removed from paragraph 21
- The son's application for judgment against the State for failure to file a defence was refused
- The State's defence was to be filed on or before 16 December 2010
- The matter was listed before the Judicial Registrar for directions on 17 December 2010
- Each party was ordered to bear their own costs of all six notices of motion
Key Takeaways
- Under section 9B(2) of the Law Reform (Vicarious Liability) Act 1983, claims cannot be brought directly against individual police officers; the proper defendant is the Crown. Where plaintiffs nonetheless join police officers, dismissal of proceedings against those individuals is available where no cause of action lies against them.
- A claim for malicious prosecution requires, as an essential element, that the plaintiff was acquitted in the underlying proceedings. Where a plaintiff has been convicted and an appeal has failed, that cause of action is not available and pleadings asserting it will be struck out.
- Pleadings must contain material facts, not submissions, statutory references, or arguments going to the conduct of the proceedings. References to legislation such as the Evidence Act and documents such as the Magna Carta belong in submissions, not statements of claim.
- The District Court declined to enter judgment against the State simply because a defence had not yet been filed, accepting instead an undertaking through counsel to file within a short timeframe and listing the matter for further directions.
- Where self-represented litigants face language barriers, the court may grant leave for one party to speak on behalf of another where there is clear evidence of agreement between them.
Legislation and Cases Referenced
Legislation:
- Law Reform (Vicarious Liability) Act 1983 (NSW), s 9B(2)
- Evidence Act 1995 (NSW)
Cases cited: No cases were cited in the judgment.