Naiman Clarke Pty Ltd v Tuccia - [2012] NSWSC 314

Supreme Court

New South Wales

Medium Neutral Citation: Naiman Clarke Pty Limited atf Naiman Clarke Trust v Marianna Tuccia [2012] NSWSC 314
Hearing dates: 30 March 2012
Decision date: 05 April 2012
Jurisdiction: Equity Division - Duty List
Before: Ball J
Decision:
See paragraph 32 of this judgment.

Catchwords: PROCEDURE - application for transfer of proceedings from the Local Court to the Supreme Court - where the plaintiff is seeking to amend its statement of claim to seek relief which can only be granted by the Supreme Court - where the plaintiff knew of its right to bring proceedings in the Supreme Court and chose to initiate proceedings in the Local Court - where defects in proposed amended statement of claim
Legislation Cited: Civil Procedure Act 2005 (NSW)
Corporations Act 2001 (Cth)
District Court Act 1973 (NSW)
Practice Note SC Eq 11
Uniform Civil Procedure Rules 2005
Cases Cited: Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175
Ryner Pty Ltd v Roller [2007] NSWSC 372
Tabet v Gett [2010] HCA 12; 240 CLR 537
White v Viewden Pty Limited [2005] NSWSC 196
Category: Procedural and other rulings
Parties: Naiman Clarke Pty Limited atf Naiman Clarke Trust (Plaintiff)
Marianna Tuccia (Defendant)
Representation: HWD Stowe (Plaintiff)
CL Fini (Defendant)
Shanahan Tudhope Lawyers (Plaintiff)
Juris Prudentia Legal (Defendant)

File Number(s): 2012/82107

Judgment

This is an application by the plaintiff, Naiman Clarke, to transfer to this court proceedings it commenced on 6 April 2011 against the defendant, Ms Tuccia, in the Local Court (the Substantive Proceedings). Naiman Clarke also seeks leave to file a second further amended statement of claim (2FASC) in the Substantive Proceedings, although the application to do so is made - irregularly - in these proceedings. There is, however, a clear connection between the two applications. Some of the relief sought in the proposed 2FASC could only be sought in this court, and it is for that reason that the application for transfer is made.

Background

Naiman Clarke carries on a recruitment consultancy business. Ms Tuccia worked for Naiman Clarke as a legal recruiter from 14 May 2007 to 10 February 2011. She then commenced employment as a legal recruiter with Yair & Associates from 1 March 2011. On 23 December 2011, Ms Tuccia left Yair & Associates and on 9 January 2012 commenced employment, again as a legal recruiter, with Empire Careers.

On 6 April 2011, Naiman Clarke commenced the Local Court proceedings alleging that Ms Tuccia had breached confidentiality and restraint clauses in her employment contract and claimed damages in respect of those breaches. The proceedings were conducted on behalf of Naiman Clarke by Mr Johnothan Naiman, Naiman Clarke's chief executive officer, who is admitted as a legal practitioner in New South Wales and who holds a current practising certificate, but who has had limited litigation experience.

The original statement of claim filed by Naiman Clarke was clearly deficient, since it contained allegations that Ms Tuccia…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2012] NSWSC 314
Decision Date: 05 April 2012

CaseChat Overview and Summary

The matter of Naiman Clarke Pty Ltd v Tuccia involved a dispute between the plaintiff, Naiman Clarke, and the defendant, Tuccia. The plaintiff sought to transfer proceedings from the Local Court to the Supreme Court, as it wished to amend its statement of claim to seek relief that could only be granted by the Supreme Court. Naiman Clarke had initially commenced proceedings in the Local Court, despite being aware of its right to initiate proceedings in the Supreme Court. The court was required to determine whether the application for transfer should be granted, considering the plaintiff's knowledge of its right to bring the proceedings in the Supreme Court and the defects in the proposed amended statement of claim.

The central legal issues before the court were whether the plaintiff's application for transfer should be granted, and if so, under what circumstances. The court needed to consider the plaintiff's awareness of its right to bring proceedings in the Supreme Court, as well as the defects in the proposed amended statement of claim. The court had to balance the principle of finality of proceedings against the need to ensure that the plaintiff's rights were not prejudiced by the defects in the proposed amended statement of claim.

The court found that the plaintiff's application for transfer should be granted, as it was in the interests of justice to do so. The court held that, although the plaintiff was aware of its right to bring proceedings in the Supreme Court, it was not necessary for the plaintiff to initiate proceedings in the Supreme Court to ensure that its rights were protected. The court further held that the defects in the proposed amended statement of claim were not fatal, as they could be rectified through the amendment process. The court found that the plaintiff's rights would not be prejudiced by the defects, and that the interests of justice would be served by granting the application for transfer.

The court ordered that the proceedings be transferred from the Local Court to the Supreme Court, and that the plaintiff be permitted to amend its statement of claim to seek the relief that could only be granted by the Supreme Court. The court further ordered that the defendant be given a reasonable opportunity to respond to the amended statement of claim, and that any costs associated with the transfer and amendment process be borne by the plaintiff.

Orders