Endemi v Ginman; Moore v Commonwealth Director of Public Prosecutions

Case •

[2023] NSWSC 284

•

20 March 2023

No judgment structure available for this case.

Supreme Court


New South Wales

Medium Neutral Citation: Endemi v Ginman; Moore v Commonwealth Director of Public Prosecutions [2023] NSWSC 284
Hearing dates: 20 March 2023
Date of orders: 20 March 2023
Decision date: 20 March 2023
Jurisdiction:Common Law
Before: Dhanji J
Decision:

Pursuant to Uniform Civil Procedure Rules 2005 (NSW) r 6.24(1) the plaintiffs, Kylie Endemi, Matthew Pawsey, Matthew Bolton, and Michelle McAlister, be joined as respondents to the notice of motion filed by the applicant Mr Moore on 28 April 2022.

Catchwords:

CIVIL PROCEDURE – notice of motion – joinder application - motion relates to substantive proceedings between the plaintiffs and the applicant - plaintiffs not named as a party in cross-summons or motion - joinder application not opposed – orders made

Legislation Cited:

Uniform Civil Procedure Rules 2005 (NSW), r 6.24(1)

Cases Cited:

Moore v Commonwealth Director of Public Prosecutions [2022] NSWSC 1458

Category:Procedural rulings
Parties: Kylie Endemi (First Plaintiff)
Matthew Pawsey (Second Plaintiff)
Michelle McAllister (Third Plaintiff)
Matthew Bolton (Fourth Plaintiff)
Registrar Colette Ginman (First Defendant)
Registrar Christine Sanderson (Second Defendant)
Ian Moore (Third Defendant/Cross Claimant/Applicant on Motion)
Commonwealth Director for Public Prosecutions (Cross Defendant/Respondent on Motion)
Representation: Solicitors:
Makinson d’Apice Lawyers (Plaintiffs)
Self-represented (Third Defendant/Cross Claimant/Applicant on Motion)
File Number(s): 2021/320939
Publication restriction: Nil

EXTEMPORE JUDGMENT (revised)

  1. HIS HONOUR: By notice of motion filed on 28 April 2022 in this Court, the applicant sought various orders. The notice of motion named the Commonwealth Director of Public Prosecutions as the respondent.

  2. The motion was filed in the context of substantive proceedings which were brought by the four plaintiffs seeking judicial review of the decisions of two Local Court registrars to issue Court Attendance Notices charging them with criminal offences. Those Court Attendance Notices were issued at the request of the applicant as a private informant.

  3. The Court Attendance Notices included both state and federal charges. Subsequent to the issue of the plaintiffs' summons in this Court, the Court Attendance Notices were brought to an end, as a result of the respective Directors of Public Prosecutions taking over and discontinuing the proceedings.

  4. The applicant brought a cross-summons in this Court challenging the “decisions” of the Magistrate dismissing the charges. I use inverted commas here as there was, in fact, as found by Chen J, no decision of the Magistrate: see Moore v Commonwealth Director of Public Prosecutions [2022] NSWSC 1458 at [51].

  5. The Commonwealth Director of Public Prosecutions was the defendant to that cross-summons. The Commonwealth Director of Public Prosecutions brought a notice of motion seeking summary dismissal of the applicant's cross-summons. The applicant then brought his notice of motion filed on 28 April 2022, to which the Commonwealth Director of Public Prosecutions was the respondent, by which he sought various orders.

  6. Prayer 1 sought an order that the Commonwealth Director's notice of motion seeking summary dismissal be dismissed. Prayer 3 of the applicant's motion sought an order that the affidavit filed in support of the Commonwealth Director's motion for summary dismissal be dismissed, and prayer 4 sought various orders as to costs.

  7. Prayer 2 of the motion was of a different nature. By prayer 2 of the motion, the applicant sought to appeal a decision made by the registrar of this Court on 1 April 2022. The order sought, in prayer 2 of the motion is as follows::

"Pursuant to the Uniform Procedure Rules 2005 (NSW) r 49.20 subrule (1) overturn Registrar K Jones' decision on 1 April 2022, that removed the notice of motion filed on 11 November 2021 from continuing, together with the first cross-summons filed on 1 March 2022.”

  1. I understand that the applicant seeks to amend the orders sought by prayer 2 such that it will read:

"Pursuant to the Uniform Civil Procedure Rules 2005 (NSW) r 49.20 subrule (1), 49.19 subrule (1), overturn K Jones' decision on 1 April 2022 that removed the defendants Collette Ginman (first defendant) and Christine Sanderson (second defendant) in the summons filed on 11 November 2021 by Nicholas Regener for Mr Andrew Deards of Makinson d'Apice lawyers, from continuing with Mr Moore (third defendant) in the first cross-summons filed on 1 March 2022.”

  1. The summons referred to in the orders sought is the summons brought by the plaintiffs originating the proceedings. The cross-summons referred to is the cross-summons brought by the applicant.

  2. The Commonwealth Director's motion for summary dismissal of the cross-summons and this motion were before Chen J in September 2022. The cross-summons was summarily dismissed by Chen J on 26 October 2022: Moore v Commonwealth Director of Public Prosecutions.

  3. Prayers 1, 3 and 4 of the motion, which related to the application for summary dismissal, were also dismissed. Prayer 2 of the notice of motion relates to the substantive proceedings between the plaintiffs and the applicant. The plaintiffs were not named as a party in the cross-summons (as it was only the Commonwealth Director named as a party) Nor were the plaintiffs named as a party to this notice of motion.

  4. Consequently, the plaintiffs did not appear in the proceedings before Chen J, where the cross-summons was dismissed. In those circumstances, Chen J was not able to deal with prayer 2 of the motion.

  5. The result is that prayer 2 of the applicant's notice of motion of 28 April 2022 remains unresolved. It is for hearing before me this morning.

  6. The plaintiffs to the substantive proceedings have appeared and indicated that they do not oppose the making of an order that they be joined as a party. Mr Moore, that is the applicant, has also indicated that he has no objection to the plaintiffs being joined as a party to this motion.

  7. Rule 6.24 (1) of the Uniform Civil Procedure Rules (2005) (NSW) provides:

6.24    Court may join party if joinder proper or necessary (cf SCR Part 8, rule 8(1); DCR Part 7, rule 8(1); LCR Part 6, rule 8(1))

(1)    If the court considers that a person ought to have been joined as a party, or is a person whose joinder as a party is necessary to the determination of all matters in dispute in any proceedings, the court may order that the person be joined as a party.

(2)    Without limiting subrule (1), in proceedings for the possession of land, the court may order that a person (not being a party to the proceedings) who is in possession of the whole or any part of the land (whether in person or by a tenant) be added as a defendant.

  1. Joinder will be appropriate where it is necessary to the determination of all matters in dispute. Joinder is clearly appropriate in this case, where the plaintiffs are the appropriate respondents to the notice of motion.

  2. I make the following order:

  1. Pursuant to Uniform Civil Procedure Rules (2005) (NSW) r 6.24(1) the plaintiffs, Kylie Endemi, Matthew Pawsey, Matthew Bolton, and Michelle McAlister, be joined as respondents to the notice of motion filed by the applicant Mr Moore on 28 April 2022.

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Decision last updated: 28 March 2023

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Cases Cited

1

Statutory Material Cited

1

Moore v Commonwealth Director of Public Prosecutions [2022] NSWSC 1458