Gabriel v Grech (No 5)

[2020] NSWSC 759

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Gabriel v Grech (No 5) [2020] NSWSC 759

Hearing dates:

17 June 2020

Decision date:

17 June 2020

Jurisdiction:

Common Law

Before:

Adamson J

Decision:

1.   The directions hearing on 17 June 2020 at 10:10am before the Registrar in proceedings 2020/168163 be vacated.

 

2.   That proceedings 2020/168163 be consolidated with proceedings 2017/273635.

 

3.   The first defendant file and serve written submissions and any evidence on the first defendant’s request to extend time to appeal by 23 June 2020.

 

4.   The other parties to file and serve written submissions and any evidence on the first defendant’s request to extend time to appeal by 18 August 2020.

 

5.   The first defendant to file and serve written submissions and evidence in reply on the first defendant’s request to extend time to appeal by 25 August 2020.

 6.   List the matter for directions before Adamson J at 9:00am on 28 August 2020.

Catchwords:

CIVIL PROCEDURE — Hearings — Consolidation of proceedings — order for consolidation made – further directions

Legislation Cited:

Civil Procedure Act 2005 (NSW), s 56

Cases Cited:

Gabriel v Grech (No 3) [2020] NSWSC 218
Gabriel v Grech (No 4) [2020] NSWSC 726

Category:

Procedural and other rulings

Parties:

Joseph Gabriel (Plaintiff)
Paul Grech (First Defendant)
Drive My Car Rentals Pty Ltd (Second Defendant)
Mark Gabriel (Third Defendant)

Representation:

Counsel:
S A Baron Levi (Plaintiff and Third Defendant)
S Maybury (First Defendant)
P Barham (Second Defendant)

  Solicitors:
William Roberts Lawyers (Plaintiff and Third Defendant)
Lawandi Lawyers (First Defendant)
Clancy Lawyers Pty Ltd (Second Defendant)

File Number(s):

2017/273635

Judgment

Introduction

1. This matter was listed before me for directions on 17 June 2020. At the conclusion of the directions hearing, I made directions as follows:

“1.   The directions hearing on 17 June 2020 at 10:10am before the Registrar in proceedings 2020/168163 be vacated.

2.   That proceedings 2020/168163 be consolidated with proceedings 2017/273635.

3.   The first defendant file and serve written submissions and any evidence on the first defendant’s request to extend time to appeal by 23 June 2020.

4.   The other parties to file and serve written submissions and any evidence on the first defendant’s request to extend time to appeal by 18 August 2020.

5.   The first defendant to file and serve written submissions and evidence in reply on the first defendant’s request to extend time to appeal by 25 August 2020.

6.   List the matter for directions before Adamson J at 9:00am on 28 August 2020.”

2. There was agreement between the plaintiff in these proceedings, Mr Gabriel, for whom Mr Baron Levi appeared and Mr Grech, the plaintiff in proceedings 2020/168163 (the 2020 proceedings), the first defendant in these proceedings, for whom Mr Maybury appeared, as to the directions required to advance the matter. The directions were wholly opposed by Mr Barham, who appeared for Drive My Car Rentals Pty Ltd, the second defendant (DMC). In order to explain why the directions were made, it is necessary to give some short background to these proceedings and the 2020 proceedings.

The background to the directions

3. Mr Gabriel sued Mr Grech in proceedings in the Local Court for damage to a motor vehicle. Mr Grech cross-claimed against DMC. The magistrate found that Mr Grech’s negligence had caused the damage but that Mr Gabriel was not entitled to judgment because the damaged motor vehicle was not his. The magistrate held that DMC would have been liable to Mr Grech if Mr Grech had been liable to Mr Gabriel. Mr Grech appealed to this Court pursuant to ss 39 and 40 of the Local Court Act 2007 (NSW).

4. The appeal was heard on 4 March 2020. DMC was the only active contradictor to Mr Gabriel as Mr Grech did not participate in the substantive hearing, although he had appeared on previous occasions.

5. I delivered reasons for decision on 11 March 2020: Gabriel v Grech (No 3) [2020] NSWSC 218.

6. Subsequently, I directed that Mr Gabriel be notified of my decision. This led to DMC applying for me to recuse myself. I declined DMC’s application: Gabriel v Grech (No 4) [2020] NSWSC 726.

7. On 5 June 2020 Mr Grech commenced the 2020 proceedings by filing a summons for an extension of time to appeal against the magistrate’s decision. This was a defensive appeal since it only arose because Mr Gabriel was successful in his appeal to this Court.

Consideration

8. Mr Maybury submitted that the 2020 proceedings should be consolidated with these proceedings. He explained that the summons had only commenced the 2020 proceedings because of his oversight and Mr Grech could equally well have filed a cross-summons in these proceedings. He submitted the proceedings were related since they both arose from the same Local Court proceedings before the magistrate. He contended that it would be inefficient for the matters not to be heard together.

9. Mr Barham submitted that the 2020 proceedings should be case-managed by the Registrar and dealt with entirely separately from the present proceedings. He objected to the absence of a notice of motion for consolidation or evidence in support and objected to my making such an order.

10. While, generally speaking, a party seeking consolidation would be required to file a notice of motion, I am not persuaded that such a course is either necessary or desirable in the present case. I accept Mr Maybury’s submission that, had Mr Grech filed a cross-summons in these proceedings, there would have been no occasion for such an order and that Mr Grech ought not be punished for what was an oversight by his legal representatives. I am required to make directions to advance the overriding purpose of the Civil Procedure Act 2005 (NSW), which is to facilitate the just, quick and cheap resolution of the real issues in the proceedings: s 56. I am satisfied that it would not advance that purpose either by requiring a notice of motion or by refusing to consolidate the proceedings. Were I to take either of those courses, it would be open to Mr Grech simply to file a cross-summons which would have the same effect: namely, the application by Mr Grech would form part of these proceedings in any event, without any such order. Since the outcome is in the hands of the party which propounds the order for consolidation, it would not be in the interests of justice to do other than consolidate the proceedings so that they can be determined as efficiently as possible.

11. While Mr Barham opposed directions being made at all in the 2020 proceedings, he was insistent that, if I were to make directions, his client would require 8 weeks to respond to Mr Grech’s submissions and evidence. Mr Barham explained that he envisaged the issue of notices to produce and subpoenas. On this basis I allowed DMC the 8 weeks it sought to respond to Mr Grech’s submissions.

12. Mr Maybury sought that I list Mr Grech’s application for an extension of time separately from the appeal itself. Although he contended that it would be more efficient for his client were the extension application and the leave to be heard together, he apprehended that DMC would prefer for the extension application to be determined first. Mr Barham submitted that it could not be assumed that DMC would want the extension application dealt with in advance of an appeal and that it was preferable to list the matter for directions at the end of the period envisaged by the timetable, rather than to list it for hearing. I acceded to his submissions in this respect.

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Amendments

18 June 2020 -

[7] - "arose" inserted after "only"

Decision last updated: 18 June 2020