Fregnan v Stanizzo; Stanizzo v Badarne; Stanizzo v State of New South Wales [2019] NSWSC 26

Fregnan v Stanizzo; Stanizzo v Badarne; Stanizzo v State of New South Wales [2019] NSWSC 26

The uncertainty about Detective Murdock's evidence did not justify aborting the scheduled hearing because any objection to adducing his previous representations could be addressed if and when the State sought to rely on them. However, because Mr Stanizzo had timely sought access to documents ordered to be produced but withheld pending an expedited Court of Appeal appeal, he should not be required to defend or prosecute the claims before he either obtained access to those documents or knew that access would not be given. A partial adjournment to 12 February 2019 preserved the remaining hearing days while addressing that prejudice.

Jurisdiction
Australia
Judgment Date
01 February 2019
Procedural Posture
Procedural Ruling in Common Law Civil Proceedings Involving Assault and Malicious Prosecution Claims / Application by Mr Stanizzo to Vacate Listed Hearing Dates Pending a Court of Appeal Appeal About Privilege and Determination of a S 67 Evidence Act Notice
Outcome
Application to vacate the whole hearing refused, but the proceedings were partially adjourned to 12 February 2019; costs reserved.
Legal Topics
['application to Vacate Hearing' 'adjournment' 'malicious Prosecution' 'privilege' 'unavailable Witness' 'evidence Act S 67 Notice']
['civil Procedure' 'evidence' 'torts'] ['application to Vacate Hearing' 'adjournment' 'malicious Prosecution' 'privilege' 'unavailable Witness' 'evidence Act S 67 Notice']

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Procedural Posture

Procedural Ruling in Common Law Civil Proceedings Involving Assault and Malicious Prosecution Claims / Application by Mr Stanizzo to Vacate Listed Hearing Dates Pending a Court of Appeal Appeal About Privilege and Determination of a S 67 Evidence Act Notice

Legal Issues

  1. 1 ["Whether the scheduled three-week hearing should be vacated because the State's appeal against orders rejecting its privilege claim had not yet been determined." 'Whether the scheduled hearing should be vacated because former Detective Senior Constable Murdock was unwell and the State had served a s 67 notice seeking to rely on his previous representations.' 'Whether a partial adjournment was preferable to vacating the whole hearing.']

Ratio Decidendi

The uncertainty about Detective Murdock's evidence did not justify aborting the scheduled hearing because any objection to adducing his previous representations could be addressed if and when the State sought to rely on them. However, because Mr Stanizzo had timely sought access to documents ordered to be produced but withheld pending an expedited Court of Appeal appeal, he should not be required to defend or prosecute the claims before he either obtained access to those documents or knew that access would not be given. A partial adjournment to 12 February 2019 preserved the remaining hearing days while addressing that prejudice.

Court Disposition

Application to vacate the whole hearing refused, but the proceedings were partially adjourned to 12 February 2019; costs reserved.

Orders

  • ['Adjourn the proceedings to 12 February 2019 for hearing.' "Reserve the costs of the plaintiff's application to vacate the hearing."]