AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
District Court 28 July 2020

Mouzakzak v The Nominal Defendant

[2020] NSWDC 421

Other
PRACTICE AND PROCEDURE WITNESS CROSS ABSENCE OF PLEADING OF FRAUD WHETHER PREJUDICE TO THE PLAINTIFF

Citation: Mouzakzak v The Nominal Defendant [2020] NSWDC 421
Court: District Court of New South Wales
Date: 28 July 2020
Judge: Abadee DCJ

Background

The plaintiff was a front-seat passenger in a Mercedes Benz that struck a tree on Henry Lawson Drive in 2016. She alleged an unidentified vehicle travelling in the opposite direction had veered onto the wrong side of the road, causing the driver of the Mercedes Benz to swerve left and collide with the tree. Because the other driver was never identified, the plaintiff commenced proceedings against the Nominal Defendant (the statutory body that stands in for unidentified drivers in NSW), and later joined the Mercedes Benz driver as a second defendant.

By the time the matter reached hearing, the claim against the driver had settled. The driver, Ms Khaled, was then called as a witness for the plaintiff. The Nominal Defendant's core defence was a flat denial that any unidentified vehicle was involved at all.

On day two of the hearing, senior counsel for the Nominal Defendant cross-examined Ms Khaled on whether she had driven deliberately into the tree, rather than as a result of negligence in responding to another vehicle. The Nominal Defendant made clear it was not suggesting the plaintiff was complicit in any such conduct. The plaintiff then applied to have that line of questioning, and the answers given, struck out.

  • Whether the Nominal Defendant was required, under the pleading and particulars rules in the Uniform Civil Procedure Rules 2005 (NSW), to expressly assert fraud or deliberate conduct by Ms Khaled before cross-examining her on that basis.
  • Whether the absence of such a pleaded assertion caused the plaintiff actual prejudice sufficient to justify striking out the evidence.
  • Whether the cross-examination of Ms Khaled's state of mind was permissible as a means of challenging her credibility in support of the Nominal Defendant's existing denial.

Decision

The plaintiff's application to strike out the evidence was refused. Abadee DCJ held that the pleading rules in rules 14.14 and 15.3 of the UCPR did not require a defendant to positively assert, in a pleading or particulars, that a witness called by the opposing party had acted fraudulently, where no such allegation of fraud was directed at the plaintiff herself.

The court drew a clear distinction between conduct of the plaintiff and conduct of a witness called by the plaintiff. The circumstances in which the Mercedes Benz struck the tree were squarely within Ms Khaled's peculiar knowledge, and her credibility was plainly in issue. Challenging a witness's credibility through cross-examination is routine, and courts do not ordinarily require the opposing party to pre-announce the basis on which that credibility will be attacked.

Abadee DCJ found support in the Court of Appeal's decision in Nguyen v Tran [2018] NSWCA 215, where the President emphasised that a pleaded denial of an elemental factual matter can be supported through cross-examination, without needing to spell out every form that denial might take. Here, the Nominal Defendant's denial of any unidentified vehicle was already on the pleadings; exploring whether the collision was deliberate was one legitimate means of substantiating that denial.

On prejudice, the court was not persuaded that any material omission in the pleadings had caused the plaintiff actual harm. The circumstances of the collision, including the driver's mental state, were always going to be in issue. Further, the plaintiff's decision to settle with Ms Khaled was made with constructive knowledge that the driver's state of mind would remain a live question in the continuing claim against the Nominal Defendant.

Orders Made

No orders were made in this decision.

Key Takeaways

  • The District Court held that UCPR rules 14.14 and 15.3 do not require a defendant to plead, as a positive assertion, that a witness called by the plaintiff acted fraudulently or deliberately, where no fraud is alleged against the plaintiff herself.
  • A pleaded denial of an elemental factual matter (here, the existence of an unidentified vehicle) can be supported by cross-examination that explores alternative explanations, including deliberate conduct by a witness, without those alternatives needing to appear on the face of the defence.
  • Where a plaintiff settles a claim against one defendant but continues against another, the settling plaintiff bears constructive knowledge that matters going to the settled defendant's conduct, including state of mind, remain open for inquiry in the remaining proceedings.
  • Challenging witness credibility through vigorous cross-examination is routine litigation conduct; it does not ordinarily require advance notice through pleadings when no fraudulent imputation is made against the party calling the witness.
  • No prejudice was established on the facts: the driver's mental state at the time of the collision was an obvious and inherent issue in the proceedings from the outset.

Legislation and Cases Referenced

Legislation:
- Uniform Civil Procedure Rules 2005 (NSW), rr 14.14, 15.3

Cases:
- Nguyen v Tran [2018] NSWCA 215