Fregnan v Stanizzo; Stanizzo v Badarne; Stanizzo v State of New South Wales

1. [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. [2]

   The statement is in the following terms:

3. [3]

   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.

4. [4]

   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.

5. [5]

   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.

6. [6]

   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.

7. [7]

   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.

8. [8]

   I reject the tender of the statement.

9. [9]

   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.

10. [10]

    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.

11. [11]

    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.

12. [12]

    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.

13. [13]

    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.

14. [14]

    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.

15. [15]

    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.

16. [16]

    I reject the tender of these tax invoices.

17. [17]

    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.

First notice to produce

1. [18]

   This notice seeks production by Mr Badarne of the following documents:

2. [19]

   Mr Stanizzo seeks production of pay slips, group certificates and the like in respect of Mr Badarne’s employment by the University of Wollongong. I have already considered these documents in an earlier judgment: see Stanizzo v Badarne [2019] NSWSC 74 at [15]. I do not consider that Mr Stanizzo has demonstrated that there is any legitimate basis to reconsider that decision.

Second and third notices to produce

1. [20]

   The second notice is addressed to Ahmad Abu Ria, care of Mr Badarne, and seeks production of the following documents:

2. [21]

   The third notice is similarly addressed and seeks production of the following documents:

3. [22]

   These notices are directed to a former client of Mr Badarne rather than to Mr Badarne himself. Mr Badarne no longer acts for the client and the client is not, despite Mr Stanizzo’s submissions to the contrary, a party to these proceedings. The notices to produce should be set aside on that basis alone.

4. [23]

   Mr Ahmad Abu Ria is a party to the deed to which I have earlier referred that Mr Stanizzo challenges as a sham. In accordance with that deed, Mr Abu Ria purports to assign the benefit of his entitlement to a compensation payment arising out of an injury that he is said to have suffered on a building site. Mr Stanizzo says, among other things, that Mr Abu Ria had only been in Australia for a short period before his accident and for a short period thereafter and that this reliably informs or further supports his contention that the deed is a sham.

5. [24]

   I am unable to see how the dates when Mr Abu Ria came and left Australia could have any legitimate forensic purpose, even having regard to the submissions made by Mr Stanizzo concerning that information. The issue of the authenticity of the deed will not be aided by the travelling status of one of its parties if it cannot otherwise be successfully impugned.

Fourth notice to produce

1. [25]

   This notice seeks production by Mr Badarne of the following documents:

2. [26]

   This notice is not pressed.

Fifth notice to produce

1. [27]

   This notice seeks production by Mr Badarne of the following documents:

2. [28]

   This notice seeks the production of communications and correspondence over a period of approximately four and a half years between Mr Badarne and any firm of solicitors in relation to six nominated individuals and any litigation between them.

3. [29]

   Mr Badarne complains that the notices are akin to discovery, are oppressive and are in any event too late in the context of the present proceedings. Mr Badarne has estimated that it would take him approximately 50 hours to examine all of the potentially relevant files in his office in order to be satisfied that he had complied strictly with the notice if required to do so.

4. [30]

   In my opinion the material sought does not concern any legitimate forensic purpose. The terms and breadth of the notice at this late stage also make it oppressive. It should be set aside.

Sixth notice to produce

1. [31]

   This notice seeks production by Mr Badarne of the following documents:

2. [32]

   The documents sought by this notice have already been produced in response to the fourth notice to produce. However, on Mr Badarne’s submission, the documents listed in categories 2 to 5 are arguably without any legitimate forensic purpose.

3. [33]

   I am unable to discern how any of these documents could legitimately inform the proof of any issue that is alive for my determination in these proceedings. As I have noted on several occasions, I understand and accept that Mr Stanizzo wishes to establish that Mr Badarne disliked him and that there are several areas of conflict between them that is evident from Mr Badarne’s employment with Mr Stanizzo and the disputes that they had concerning the receipt and distribution of fees owing to the firm or to one or other of them individually. However, there is, and must necessarily be, a limit to the lengths to which a party to litigation can expect an opponent to go in order that the party might be given access to documents that on almost any reasonable view lie beyond, or at the very best, on the outer limits of, any possible relevance to the issues in the proceedings.

Seventh notice to produce

1. [34]

   This notice seeks production by Mr Badarne of the following documents:

2. [35]

   With respect to the documents sought in the first category, Mr Badarne says that he does not have the conveyancing file as this work was carried out by Mr Stanizzo. With respect to the balance of the documents, Mr Badarne contends that they have no legitimate forensic purpose.

3. [36]

   The property referred to is the property that was purchased by Mr Badarne with what Mr Stanizzo alleges are fees owing to his legal practice that were illegitimately diverted to his own use by Mr Badarne pursuant to the impugned deed. Mr Stanizzo does not seek to establish that Mr Badarne obtained the funds from legitimate sources, to which issue the documents sought could only possibly be relevant.

Eighth notice to produce

1. [37]

   This notice seeks production by Mr Badarne of the following documents:

2. [38]

   With respect to categories 1 to 7, Mr Badarne contends that the documents sought have no legitimate forensic purpose. He has no documents to produce with respect to category 8.

3. [39]

   I am unable to detect any legitimate forensic purpose that would support the call for the production of the documents in the first seven categories. These documents on their face appear to be concerned with the legitimacy of the deed that Mr Stanizzo says is a sham, about which I have commented earlier in these reasons.

Conclusion

1. [40]

   Except to the extent that documents have already been produced, or Mr Badarne does not oppose production, each of the notices to produce issued by Mr Stanizzo should be set aside.