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District Court 10 November 2023

Pitchuev v State of New South Wales

[2023] NSWDC 592

Other
CIVIL PRACTICE AND PROCEDURE IF ALLOWED, NECESSARY TO ADJOURN 7 DAYS FIXED FOR HEARING IN NEAR FUTURE

Citation: Pitchuev v State of New South Wales [2023] NSWDC 592
Court: District Court of New South Wales
Date: 10 November 2023
Judge: Neilson DCJ

Background

The plaintiff commenced proceedings against the State of New South Wales, alleging vicarious liability for the acts of named police officers. The underlying claim concerned charges brought against the plaintiff in the Local Court on 17 February 2020. Those charges were referred to the Office of the Director of Public Prosecutions (ODPP) on 25 February 2020, and were ultimately dismissed.

The plaintiff had been a probationary constable of police at the time of the alleged offences, which explained the involvement of multiple NSW Police officers. Norton Rose Fulbright had been acting for the State throughout the proceedings on behalf of the police defendants.

In October 2023, with the matter specially fixed for a seven-day hearing commencing 27 November 2023, the plaintiff filed a notice of motion seeking to add the ODPP as a defendant and to file an amended statement of claim. The first prayer (adding the ODPP as a named defendant) was ultimately abandoned, but the plaintiff pressed for leave to file a revised amended statement of claim that would plead the State's vicarious liability for the conduct of the ODPP in prosecuting the charges.

  • Whether the plaintiff should be granted leave under r 6.24 of the Uniform Civil Procedure Rules 2005 (NSW) to file and serve an amended statement of claim pleading the State's vicarious liability for the ODPP's conduct.
  • Whether the existing hearing dates should be vacated as a consequence of any amendment.
  • Which party should bear the costs of the notice of motion, the adjournment, and the costs thrown away by reason of the late amendment.

Decision

Neilson DCJ granted leave to file the amended statement of claim, subject to a correction to paragraph 2B of the revised proposed document. His Honour accepted that the amendment was necessary because, without it, the plaintiff faced a real risk of failing to establish his claims for false imprisonment and malicious prosecution. The Crown Solicitor, acting for the DPP, did not oppose the amendment, though the police defendants did.

The amendment made the hearing date on 27 November 2023 untenable. The DPP's solicitor with carriage of the matter was engaged in a criminal trial expected to finish on 21 November, leaving at most six days (including a weekend) before the listed hearing. Additionally, because two NSW Government agencies would now be involved, government policy required the file to be transferred from Norton Rose Fulbright to the Crown Solicitor's Office. Counsel for the plaintiff conceded that vacation of the hearing was inevitable if the amendment were allowed.

His Honour vacated the hearing dates and granted the Crown Solicitor leave to take over carriage of the matter. The costs orders were resolved against the plaintiff. The motion was not filed until 9 October 2023, almost one year after the defence was filed on 9 October 2022. Critically, that defence had itself put in issue the transfer of the investigation to the ODPP as far back as February 2020, meaning the plaintiff had notice of the significance of the ODPP's involvement long before the application was made.

Orders Made

  • Leave granted to the plaintiff to file and serve an amended statement of claim in the form of annexure C to the affidavit of Mr Wilson Tighe sworn 30 October 2023, subject to appropriate amendment to paragraph 2B.
  • Hearing dates commencing 27 November 2023 vacated.
  • Leave granted to the Crown Solicitor to take over carriage of the matter on behalf of the defendant.
  • The plaintiff ordered to pay the defendant's costs of the notice of motion, the costs thrown away by reason of the adjournment, and the costs thrown away by reason of the late amendment.

Key Takeaways

  • The District Court confirmed that leave to amend a pleading will ordinarily be granted where, without the amendment, a party may be unable to pursue a substantive cause of action, even where that amendment necessitates an adjournment of a specially fixed hearing.
  • A late amendment that requires a government agency to transfer a matter between legal representatives can generate its own category of wasted costs, distinct from the costs of the motion and the costs of the vacated hearing dates.
  • Where the opposing party's own pleading has long put in issue the very matter that prompts the amendment, a court is likely to treat the delay in bringing the amendment application as a significant factor in costs.
  • Under the Uniform Civil Procedure Rules 2005 (NSW), the overriding objective of just, quick, and cheap resolution did not preclude an amendment in these circumstances, but it reinforced the costs consequences for the plaintiff whose late application caused the delay.
  • In dismissing the argument that costs thrown away would be minimal because the same counsel were likely to appear at the rescheduled hearing, the court focused on the concrete additional expense the defendant would incur in familiarising new solicitors with the amended pleaded case.

Legislation and Cases Referenced

Legislation
- Uniform Civil Procedure Rules 2005 (NSW), r 6.24

Cases Cited
- None cited in the judgment.