ABC by her tutor DEF v AI; ABC by her tutor DEF v Irmak

[2023] NSWSC 825

Supreme Court

New South Wales

Medium Neutral Citation:

ABC by her tutor DEF v AI; ABC by her tutor DEF v Irmak [2023] NSWSC 825

Hearing dates:

13 July 2023

Date of orders:

13 July 2023

Decision date:

13 July 2023

Jurisdiction:

Common Law

Before:

Garling J

Decision:

See [10]

Catchwords:

CIVIL PROCEDURE – Consolidation of proceedings – Where plaintiff claimed damages against first and second defendant in relation to sexual assaults – Where plaintiff commenced separate proceedings against third defendant concerning alleged conspiracy with first defendant to intimidate the plaintiff to change her evidence – Significant factual cross-over between proceedings – Risk of inconsistent judgments if heard separately – Consolidation ordered

Legislation Cited:

Civil Procedure Act 2005

Uniform Civil Procedure Rules 2005

Cases Cited:

Not Applicable

Texts Cited:

Not Applicable

Category:

Procedural rulings

Parties:

ABC by her tutor (P in both matters)
AI (D1 in 2020/248409)
R Dagdanasar (D2 in 2020/248409)
R Irmak (D in 2022/220365)

Representation:

Counsel:
M Keaney (P in both matters)
Self-represented (D1 in 2020/248409)
Self-represented (D2 in 2020/248409)

Solicitors:
Gerard Gooden Solicitor & Notary Public

File Number(s):

2020/00248409
2022/00220365

Publication restriction:

Not applicable

EX TEMPORE JUDGMENT

1. The plaintiff claims damages in two proceedings. The first proceedings, 2020/00248409, is a claim for damages filed by the plaintiff against two defendants. The first has a pseudonym AI and the second Mr Ruhi Dagdanasar. This claim, which each of the defendants tell me relies on facts which they dispute, is for damages for physical and mental injury and consequent disability.

2. The claim arises out of an incident which the plaintiff says happened on 8 November 2016, and into the morning of Wednesday 9 November 2016, at premises at a house in Glenwood.

3. Consequent upon the events the subject of this claim, the defendants were each arrested and faced criminal charges and were remanded in custody until those offences were finalised.

4. The second proceedings, numbered 2022/220365, is a claim brought against Mr Recep Irmak alleging that, together with one of the defendants, he engaged in a conspiracy to intimidate the plaintiff into changing her factual account of what occurred at Glenwood. The plaintiff claims, as a consequence of that intimidation, that she has suffered from on-going mental illness.

5. In the Statements of Claim with respect to each proceeding, there are identical pleadings. There is a considerable factual overlap and any assessment of the plaintiff's damages which the Court embarks upon will involve a consideration of both of the events in her life and the consequences of those events should she prove that they in fact occurred.

6. Today I am dealing with a Notice of Motion brought by the plaintiff seeking orders that the two sets of proceedings be heard together at the same time and that formally an order be made that the evidence in one proceeding be the evidence in the other proceeding.

7. The plaintiff relies on r 28.5 of the Uniform Civil Procedure Rules 2005 (“UCPR”). That rule provides that the Court may make orders of the kind which the plaintiff seeks if there is involved a common question of fact or law in the proceedings, or that the rights to relief are in respect of or arise out of the same transaction, or a series of transactions, or that, for some other reason it is desirable to make an order. I am satisfied that it is desirable to make an order under the rule because such an order would be in the interests of justice.

8. Section 56 of the Civil Procedure Act 2005 requires the Court in civil proceedings to make orders which give effect to the overriding purpose set out in s 56(1), namely that the Court in making orders under the Civil Procedure Act and the UCPR, is to facilitate the just, quick and cheap resolution of the real issues in the proceedings.

9. In my view, a number of witnesses will be required to give evidence in each case. Those witnesses will be the same. There is significant factual cross-over between the cases, and it would not be possible to hear and determine any assessment of damages separately in each of the cases. As well, unless the cases can be heard together, there is a risk that two separate judges may arrive at inconsistent judgments. That risk is not one which ought be permitted. In those circumstances, I will make orders pursuant to r 28.5 of the UCPR that each of the two proceedings numbered 2020/248409 and 2022/220365 be heard together.

Orders

10. The Court makes the following orders:

1. Orders pursuant to r 28.5 of the UCPR that each of the two proceedings numbered 2020/248409 and 2022/220365 be heard together.

2. Order that the evidence in each of those two proceedings be the evidence in each other proceedings.

3. Order that the costs of this Notice of Motion be costs in the cause.

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Decision last updated: 13 July 2023