Stanizzo v Badarne
[2015] NSWSC 26
•03 February 2015
Supreme Court
New South Wales
Medium Neutral Citation: Stanizzo v Badarne [2015] NSWSC 26 Hearing dates: 03/02/2014 Decision date: 03 February 2015 Jurisdiction: Equity Division Before: McDougall J Decision: Decline to deal summarily with application to transfer proceedings from District Court.
Catchwords: PROCEDURE – civil - jurisdiction - transfer of proceedings - where dispute involves two sets of District Court proceedings and one set of Supreme Court proceedings - application to transfer one set of District Court proceedings to Supreme Court - where District Court soon to consider whether two sets of proceedings before it should be heard together - where order already made in Supreme Court proceedings that notice of motion seeking leave to amend statement of claim be filed - where order noted that the transfer application should be decided at the same time as the hearing of the application for leave to amend - where all three proceedings share common factual background - whether transfer application can be properly decided before full extent of factual issues made clear to court Cases Cited: Stanizzo v Badarne (NSWSC, 19 September 2014, unreported) Category: Procedural and other rulings Parties: Vincent Francis Stanizzo (Plaintiff)
Muhammad Badarne (First Defendant)
Good Legal Pty Ltd (Second Defendant)
Abdul Karim Charmand (Third Defendant)
Nasser Aouad (Fourth Defendant)Representation: Counsel:
Solicitors:
M K Rollinson (Plaintiff)
D Krochmalik (First and Second Defendants)
Justice Lawyers (Plaintiff)
Good Legal Lawyers (First and Second Defendants)
File Number(s): 2013/291210
Judgment (EX TEMPORE – REVISED 3 FEBRUARY 2015)
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HIS HONOUR: The plaintiff, Mr Stanizzo, and the first defendant, Mr Badarne, are legal practitioners. For a while, Mr Badarne worked as an employed solicitor in Mr Stanizzo's practice. They have fallen out, seemingly in a major way.
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Mr Stanizzo sues, among others, Mr Badarne in this Court. The claim that he wishes to bring (which by consent I have taken from a proposed draft further amended statement of claim, leave to file which has not yet been given) asserts breaches by Mr Badarne both of the contract of employment and of a deed of settlement made between Mr Stanizzo and Mr Badarne in July 2010.
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In very brief compass, Mr Stanizzo asserts (or will assert) that Mr Badarne was obliged to take certain steps for recovery of fees in matters in which Mr Badarne had accepted instructions whilst an employee of Mr Stanizzo, and to account to Mr Stanizzo, in accordance with what Mr Stanizzo says was the contract between them, for Mr Stanizzo's share of those fees.
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The allegations relate to a large number of proceedings.
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Quite separately, Mr Stanizzo has been involved in criminal proceedings. A former client of his firm, Ms Fregnan, alleged that Mr Stanizzo had sexually assaulted her. That went to trial. Mr Stanizzo was acquitted.
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In consequence, Mr Stanizzo has commenced proceedings in the District Court against Mr Badarne. As I understand it (I have not read the pleadings), Mr Stanizzo alleges that Mr Badarne induced Ms Fregnan to make the complaint of sexual assault and to cause the complaint to be pursued and prosecuted. Mr Stanizzo claims damages for malicious prosecution.
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Further, Ms Fregnan has commenced civil proceedings against Mr Stanizzo, also in the District Court. She repeats the allegation of sexual assault, and claims damages. Mr Stanizzo has brought a cross-claim against Ms Fregnan in those proceedings, repeating the allegations of malicious prosecution and alleging that she acted in concert with Mr Badarne.
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I should make it clear that, as I have said, I have not read the pleadings in the District Court. What I have said comes from the summary very helpfully and fairly given to me by counsel, Mr Krochmalik and Mr Rollinson.
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In this Court there has been a number of interlocutory applications. Of particular relevance, on 19 September 2014 Rein J gave judgment in respect of a notice of motion brought by Mr Stanizzo seeking leave to amend and seeking an order that the District Court proceedings between him and Mr Badarne be transferred to this Court. There were other disputes, but it is not necessary to refer to them.
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Rein J refused the application for leave to amend. He gave Mr Stanizzo an opportunity to attempt further to replead his case. He said [at 77], that he would not deal with the question of transfer of the District Court proceedings (I repeat, those between Mr Stanizzo and Mr Badarne):
77. On the basis of my conclusion the only claims with which this court is to be concerned are the Charmand and Mazzone matters. I think it is desirable to ascertain the amounts claimed in these proceedings before reaching any conclusion about whether the appropriate course is to transfer the District Court proceedings to this court or whether, if it is open to the court, to transfer these proceedings to the District Court pursuant to s 146(1) of the CPA, which, by virtue of s 149(1) of the CPA will confer the jurisdiction of this Court. I am presently not persuaded that there is any reason why the two proceedings need to be heard together but I will provide counsel a further opportunity to be heard on the question of transfer once the amounts in question have been identified.
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On 9 December 2014, Rein J gave directions in these proceedings. He ordered that any application for leave to amend be made by notice of motion filed within 14 days. Mr Stanizzo filed such a notice of motion on 19 December 2014. It was returnable before the Registrar today. The Registrar has fixed it for hearing, apparently by consent, on 13 March 2015.
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The orders made by Rein J also included the following:
The Court:
3. Notes that the Plaintiff’s application to transfer the proceedings presently before the District Court (Proceedings No. 2014/92425) to this Honourable Court (“the Transfer Application”) is to be decided at the same time as the hearing of the Plaintiff’s motion in Order 1.
4. Orders that the First Defendant file and serve any affidavit evidence in relation to the Transfer Application by 19 December 2014.
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Notwithstanding the "notation" in para 3 of the orders of 9 December 2014, Mr Krochmalik, for Mr Badarne, moves today for dismissal of the transfer application. He does so on the basis that it could not be said that there is any sufficient overlap between the two sets of District Court proceedings on the one hand, and the proceedings in this Court on the other, to justify the order. That is so, Mr Krochmalik submitted, even on the basis that the claim in this Court is taken to be that sought to be articulated through the draft further amended statement of claim to which I have referred.
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Further, Mr Krochmalik noted (and this was not in any way contentious) that there is before the District Court on Friday a notice of motion seeking an order that the two sets of proceedings to which I have referred, involving on the one hand Mr Stanizzo and Mr Badarne, and on the other Ms Fregnan and Mr Stanizzo, be heard together. Mr Krochmalik submitted that if the application for dismissal of the application for transfer were not dealt with today, that could in some way derail the expeditious decision of that application in the District Court.
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Mr Rollinson submitted that a proper understanding of the factual background in the two malicious prosecution cases in the District Court (and I include in this the civil claim by Ms Fregnan for damages for alleged sexual assault) could only be dealt with if one considered the full professional relationship between Mr Stanizzo and Mr Badarne. He submitted that those matters were particularly relevant to the question of "malice".
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In addition, Mr Rollinson submitted, correctly, that the pendency of the application for transfer in this Court would not, as a matter of law, and should not, as a matter of discretion, prevent the District Court from dealing with the application for hearing together whenever, and in whatever manner, it thought appropriate.
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It is convenient to deal now with that last point. I do not wish it to be thought that I am in any way preempting the decision of the District Court on the application that the two sets of proceedings be heard together. It is sufficient to say that there is obviously a common factual background, and that there will be common questions of credit or credibility, which could support the making of the order.
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It is correct to say, as Mr Rollinson submitted, that the District Court could (and, in accordance with the proper ordering of its business, should) deal with that application even if the application in this Court remains undisposed of.
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Mr Krochmalik noted that the District Court claim between Mr Stanizzo and Mr Badarne was fixed for hearing to commence on 16 March 2015. That fixture had been given some months back, I think in June 2014. He submitted that if the application for transfer were not dismissed, that hearing could be imperilled.
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The answer to that last submission is, I think, that it is likely that the application for the two District Court proceedings to be heard together will imperil the hearing date in any event. Whether or not that is correct, the fact is that the hearing date was granted many months ago, and the belated recognition of the potential to derail it, on which Mr Krochmalik relies, is not in my view a persuasive factor.
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In a sense, the real question for me is whether I should interfere with the direction given by Rein J (for so I regard it, despite Mr Krochmalik's submission to the contrary), that the transfer application should be decided at the same time as the hearing of the application for leave to amend: namely, as events have happened, on 13 March 2015.
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It does not seem to me to be in any way fanciful or far-fetched to conclude that the professional (for want of a better word) relationship between Mr Stanizzo and Mr Badarne, during the subsistence of the latter's employment by the former, may very well be relevant to, and may inform a decision upon, the question of malice. It seems to be reasonably clear that the relationship between Mr Stanizzo and Mr Badarne has broken down in every conceivable way: between them as individuals; between them as employer and employee; and between them as legal practitioners.
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In all the circumstances, it seems to me that a decision on the question of the transfer of the District Court proceedings to this Court really needs to be dealt with once the full extent of the factual issues in this Court can be understood. That will depend in part upon the success of the application for leave to further amend. If that leave is granted, Mr Badarne will have to file his defence. At that time, perhaps, the Court would be in a position to assess the extent of any real overlap between issues of fact and issues of credit, as among the various proceedings to which I have referred.
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In short, I see no reason at present for disturbing the order of dealing with the business that was "noted" by Rein J in his Honour's orders of 9 December 2014.
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For those reasons I decline to deal today with the first and second defendant's application summarily to dismiss prayer one of the plaintiff's notice of motion filed on 30 July 2014. The result is that, subject to any further of the court, it will be dealt with on or after 13 March 2015.
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Decision last updated: 09 February 2015
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