Kostov v State of New South Wales

HIS HONOUR: In this matter, a Motion on notice is listed whereby the defendant, the State of New South Wales, seeks that the proceedings be dismissed pursuant to r 13.4 of the Uniform Civil Procedure Rules 2005 (“UCPR”). An alternative remedy is sought being essentially that the proceedings be struck out pursuant to r 14.28 of the UCPR and the plaintiff pay the costs of the Motion.

The substance of proceedings to the extent one can ascertain their content arise from a Statement of Claim filed on 26 March 2018 in which the plaintiff, Adriana Kostov, sues the defendant, the State of New South Wales, for damages, costs and interest. The amount of damages is not specified.

The proceedings are difficult to understand and the Statement of Claim even more difficult to understand. It seems on the face of it, and to the extent it is able to be understood, that the plaintiff claims in negligence, giving rise it is said to personal injury, against the defendant. The claim is in relation to conduct by the Prothonotary, Ms Rebel Kenna, because she filed a police report against the plaintiff for taking documents from the registry and destroying them. Those documents were in the registry on the basis of them being produced on subpoena. It seems that the plaintiff, Ms Kostov, objected to the receipt by the Court of telephone records of the plaintiff that were in the possession of the telephone company by whom they were produced.

Secondly, it seems that Ms Kostov sues the State on account of negligence and/or defamation associated with that which she says is defamatory and/or negligent contained in the reasons for judgment of Judge Gibson of the District Court.

Thirdly, it seems that the defendant sues the State of New South Wales in its capacity as being liable for the actions of the New South Wales Police Force; the complaint being against the Police Prosecutor in relation to the action taken in regards to the complaint made by Registrar Kenna.

Fourthly, the plaintiff sues Registrar Kenna or more accurately sues the State of New South Wales as being liable for the actions of Registrar Kenna in either negligence, or some other cause of action which escapes me, because she failed to accede to the plaintiff's application for the waiver of fee in relation to the filing of documents.

Fifthly, the plaintiff sues the Attorney General, Mark Speakman (although I think it would apply to any Attorney General by virtue of the office) because Mr Speakman or the Attorney General failed to provide the plaintiff with the assistance that she had requested. It seems on the material before me at this stage, there has not been a refusal to provide the plaintiff with the assistance. Rather, there has been a failure to respond to the request for assistance but it does not make any difference to the nature of the claim before the Court. Neither mandamus nor prohibition is sought. Further, no application is made for certiorari or judicial review.

Lastly, the plaintiff sues one or other of the prosecutors in relation to proceedings for refusing to agree to suppression orders in relation to those proceedings.

The statement of claim filed 26 March 2018 was sought to be amended by an Amended Statement of Claim filed electronically on 23 April 2018, with handwritten amendments. It was subsequently rejected by the Registrar as being improper in form and inappropriate as an Amended Statement of Claim.

Another document, a Further Amended Statement of Claim, has been apparently crafted but has not been filed and has not been sought to be filed. It is, in any event, in not dissimilar form (albeit that it is typed) to the Amended Statement of Claim.

On 9 May 2018, the defendant wrote to the plaintiff over the signature of a senior solicitor for the Crown Solicitors setting out the objections both to the proceedings and to the form of the Amended Statement of Claim that had been filed on 23 April 2018. That letter put the plaintiff on notice as to abuse of process; the nature of the judicial immunity; the appropriateness of negligent proceedings against the New South Wales Police Force in this factual context; and the difficulties with the pleadings generally. It should be added that the Statement of Claim does not suggest nor claim any kind of malicious prosecution or collateral abuse of process.

As earlier stated, on 6 June 2018, the defendant filed and served the notice of the Motion which is now before the Court. The proceedings came before the Court and were listed for directions before Fagan J, who set the matter down for today's date, being the date that the plaintiff had informed his Honour was a suitable date for her. The plaintiff has not appeared.

Email correspondence was received by the Court's Associate just before coming on to Court this morning in which the plaintiff asked the Associate to call her on her mobile phone. That invitation was not accepted.

The plaintiff does not appear in proceedings notwithstanding her indication to Fagan J that this was a suitable day to have the hearing.

I have read the Statement of Claim. I have read the proposed Amended Statement of Claim. I accept that the plaintiff has declined to serve a further proposed amended pleading and has instead elected to proceed with a claim as set out in the Statement of Claim filed 26 March 2018 and to which the Court had earlier referred. The Statement of Claim is, to say the least, embarrassing, frivolous or vexatious and is an abuse of process.

The provisions of r 13.4 of the UCPR permit the Court to dismiss the proceedings generally, if it appears to the Court that the proceedings are frivolous or vexatious, or there is no reasonable cause of action disclosed, or the proceedings are an abuse of the process. It has been said that the three grounds prescribed by r 13.4(1) are tautologous but they are disjunctive. In my view, it is plain that the Statement of Claim and the proceedings sought to be commenced are frivolous or vexatious; they do not disclose a reasonable cause of action; and, on their face, the proceedings are an abuse of process.

I take into account the principles that have been established over a lengthy period of time. In particular, I take into account, the right described by his Honour Justice Kirby when President of the Court of Appeal as “the constitutional right” of a person to have their case heard by the Court. It is only in extreme circumstances that a plaintiff's claim will be struck out at this interlocutory stage or in limine.

Nevertheless, in accordance with the principles in General Steel Industries v Commissioner for Railways (1964) 112 CLR 125; [1964] HCA 69, there is no possibility that any of the claims as pleaded, or otherwise, against the defendant could succeed, regardless of what facts were adduced. In those circumstances, it seems to me that the appropriate course, particularly given the injunction in s 56 of the Civil Procedure Act 2005 and the following sections is to strike out the proceedings. For the reasons just given, albeit briefly, the Court makes the following orders: