Majak v Rose (No 2)

[2021] NSWSC 610

Supreme Court

New South Wales

Medium Neutral Citation:

Majak v Rose (No 2) [2021] NSWSC 610

Hearing dates:

30 April 2021

Date of orders:

30 April 2021

Decision date:

30 April 2021

Jurisdiction:

Common Law

Before:

Davies J

Decision:

1. An order pursuant to section 140 of the Civil Procedure Act 2005 that Proceedings No. 2019/00366294 in the District Court of New South Wales, Sydney Registry (District Court Proceedings) be transferred into this Court.

2. All questions of costs with respect to the proceedings transferred into this Court be reserved.

3. That the District Court Proceedings and these proceedings be consolidated.

4. That the consolidated proceedings bear the Proceedings No. 2019/400687.

5. That in the consolidated proceeding:

(a) Zofia Majak is the Plaintiff

(b) Alan Wesley Rose is the First Defendant

(c) Sheila Jasmin Bebeiro is the Second Defendant

(d) Marc Anthony Riviere trading as Riviere Law is the Third Defendant.

(e) For the purpose of the consolidated proceeding, claims are to be taken to have been first filed at the time and in the manner in which they were first filed in any of the previous proceedings.

(f) Any particulars provided in any of the previous proceedings are to be particulars provided in the consolidated proceeding.

6. The Plaintiff is to serve on each party in the consolidated proceedings on or before 28 May 2021 a proposed Further Amended Statement of Claim, setting out:

(a) The relief claimed against each Defendant in the consolidated proceedings;

(b) Each cause of action against each Defendant in the consolidated proceedings and all material facts upon which the Plaintiff relies.

7. Listed for Directions before Davies J at 9:30am on 4 June 2021.

Catchwords:

CIVIL PROCEDURE – jurisdiction – transfer to and from other courts – District Court – where District Court proceedings concerned similar claims against the same defendant in proceedings in the Supreme Court

Legislation Cited:

Civil Procedure Act 2005 (NSW)

Cases Cited:

Majak v Rose [2021] NSWSC 292

Texts Cited:

Nil

Category:

Procedural rulings

Parties:

Zofia Bozena Majak (Plaintiff)
Alan Wesley Rose (Defendant)
Marc Anthony Riviere trading as Riviere Law (First Defendant in District Court proceedings)

Representation:

Counsel:
Self-represented (Plaintiff)
R Byrnes (Defendant)
D Collins (First Defendant in District Court proceedings)

Solicitors:
Self-represented (Plaintiff)
Byrnes Legal (Defendant)
Mullane & Lindsay (First Defendant in District Court proceedings)

File Number(s):

2019/400687

Publication restriction:

Nil

Judgment

1. On 10 December 2020 there were two motions before me for hearing. One motion was by the plaintiff for leave to amend the statement of claim filed in this Court. That was necessary because on 25 June 2020 Rothman J had dismissed parts of that claim against two of the defendants. The plaintiff had been given leave by the Registrar on 10 July 2020 to amend her statement of claim, but she had not done so by the time limited.

2. The other notice of motion was a motion by the defendant, Mr Rose, to remove into this Court proceedings brought against him by the plaintiff in the District Court, because Mr Rose asserted that the District Court proceedings concerned similar issues to those pleaded against him in this Court.

3. In my judgment of 29 March 2021 (Majak v Rose [2021] NSWSC 292) I refused the plaintiff's leave to amend her statement of claim in this Court in the manner she put forward. Because she was a litigant acting for herself, I granted her leave to serve any proposed further amended statement of claim in this Court so that the proposed pleading could, in the first instance, be considered by the solicitors acting for Mr Rose. I ordered that any such pleading was to be served by 26 April. The plaintiff did not serve any such document by 26 April or at all.

4. I also stood over to today the defendant's motion for removal of the District Court proceedings, in order to see what the pleading of the plaintiff's further amended statement of claim contained. I indicated that the plaintiff would need to demonstrate why it would be appropriate to have two proceedings in two courts against the same defendant at the present time. At the present time, what remains (after Rothman J’s orders) of her pleading in this Court against Mr Rose raises similar issues to those raised against Mr Rose in the District Court proceedings.

5. In my view, particularly in the light of the plaintiff’s failure to serve any proposed amended pleading, the better course is to remove the District Court proceedings into this Court, and to give the plaintiff one last opportunity to plead her claim against Mr Rose in consolidated proceedings in this Court. I consider, having regard to s 140(3)(b)(ii) of the Civil Procedure Act 2005 (NSW), that there is sufficient reason for hearing the District Court proceedings in this Court because of the similarity of the issues raised against the same defendant.

6. Accordingly, I will make these orders:

(1) An order pursuant to section 140 of the Civil Procedure Act 2005 that Proceedings No. 2019/00366294 in the District Court of New South Wales, Sydney Registry (District Court Proceedings) be transferred into this Court.

(2) All questions of costs with respect to the proceedings transferred into this Court be reserved.

(3) That the District Court Proceedings and these proceedings be consolidated.

(4) That the consolidated proceedings bear the Proceedings No. 2019/400687.

(5) That in the consolidated proceeding:

(a) Zofia Majak is the Plaintiff

(b) Alan Wesley Rose is the First Defendant

(c) Sheila Jasmin Bebeiro is the Second Defendant

(d) Marc Anthony Riviere trading as Riviere Law is the Third Defendant.

(e) For the purpose of the consolidated proceeding, claims are to be taken to have been first filed at the time and in the manner in which they were first filed in any of the previous proceedings.

(f) Any particulars provided in any of the previous proceedings are to be particulars provided in the consolidated proceeding.

(6) The Plaintiff is to serve on each party in the consolidated proceedings on or before 28 May 2021 a proposed Further Amended Statement of Claim, setting out:

(a) The relief claimed against each Defendant in the consolidated proceedings;

(b) Each cause of action against each Defendant in the consolidated proceedings and all material facts upon which the Plaintiff relies.

(7)   The proceedings are stood over before me to Friday, 4 June 2021 for further directions.

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Decision last updated: 31 May 2021