On 12 September 2019 an application came before me as Duty Judge pursuant to a summons filed on 3 September 2019 by the plaintiffs. For determination by me pursuant to order 1 in the summons, was whether I should make an order under s 140 of the Civil Procedure Act 2005 (NSW) to remove certain Local Court proceedings commenced by the defendant, Nigel Ian Duncan, to this Court.
The basis for the transfer articulated by counsel appearing for the plaintiffs was that in the Equity Division of this Court, the plaintiffs filed a summons in 2017 seeking relief in the form of repayment of moneys it was said were fraudulently taken by Mr Duncan whilst he was a solicitor ("the Equity proceedings").
I do not need to go into any more detail about those proceedings, other than to note that in July 2018 a mediation occurred and a heads of agreement was reached and formalised.
In February 2019, the Equity proceedings were dismissed and, in June 2019, given various accommodations that had been reached between the parties, orders were made by Justice Kunc discontinuing the remaining parts of the proceedings without prejudice, leaving alive Mr Duncan's right, if he had any, to bring proceedings for any alleged overpayment that had been received by the plaintiffs as a result of the arrangements made in those proceedings.
In December 2018 Mr Duncan was charged by the New South Wales Police with criminal offences relating to fraud and larceny arising out of the same subject matter as the Equity proceedings.
On 5 June 2019, Mr Duncan pleaded guilty to those charges. He is due to be sentenced at Wollongong District Court on 1 November 2019.
Mr Duncan did not appear in response to the Summons, either when the matter was listed before me as Duty Judge on 12 September 2019, or today, 19 September 2019, the date to which I adjourned the proceedings. This adjournment was to ensure strict compliance with personal service and to provide Mr Duncan with an opportunity to appear to defend the application if he wished to do so.
I am satisfied on the affidavits of Carly Eva O'Brien of 18 September 2019 and Shanel Tighe of 16 September 2019, that the defendant, Mr Duncan, has been duly served with the application and has been notified of the hearing today.
I am also satisfied on the affidavit of Brendan John Pearce read on the plaintiffs' application that there is a proper basis for the transfer of the Local Court proceedings to this Court.
I have in evidence before me the statement of claim filed in the Local Court at Dubbo. In those proceedings Mr Duncan claims the sum of $94,000 which he asserts to be an overpayment of what the plaintiffs in these proceedings were entitled to. That statement of claim was filed on 10 July 2019 and cites and refers specifically in a number of paragraphs to the Equity proceedings in this Court.
The Defence filed is also before me on the application and pleads that Mr Duncan's claim is subject to set-off associated with costs and interest, and, in response to the entire claim, states that Mr Duncan entered a plea of guilty to larceny in the sum of $730,000 or thereabouts and took no active role to defend the Equity proceedings and that the pleadings and relief he seeks in the Local Court have a fundamental inconsistency with the Equity proceedings.
Whilst the Equity proceedings are obviously completed, the subject matter of the Dubbo Local Court proceedings arises directly out of those proceedings.
It is, in my view, proper and appropriate that the Local Court proceedings be transferred to this Court.
As noted in Sanderson Motors Pty Ltd v Kirby [2000] NSWSC 924 by Bryson J:
"[3] The power is a discretionary power. The terms of the legislation do not indicate expressly any relevant considerations for exercise of the discretion, but provide for the imposition of terms, including requiring payment of costs and security for the amount claimed."
Justice Bryson also said:
"[7] An element in the facts which favours the grant of this application is the desirability, not only in the interest of Sanderson Motors and of Mr Kirby's firm, but also in the public interest, of having all matters in controversy arising out of related facts determined at the one time."
Whilst the timing of Mr Duncan's commencement of proceedings and failure to appear in the Equity proceedings means that all of the controversy arising out of the related facts cannot be determined at one time, it is appropriate that all the matters arising out of particular facts and the disputes relating to it be determined by the same court.
I am required by s 56 of the Civil Procedure Act to give effect to the overriding purpose of the Act, which is to facilitate the just, quick and cheap resolution of the real issues in the proceedings. In my view, the objects of that Act are best served by having the Dubbo Local Court proceedings transferred to this Court, because they are so closely and inextricably bound up with the proceedings and evidence in the Equity proceedings, that it would be counter-productive and not a proper use of court time and costs to leave the claim made by Mr Duncan in the Local Court at Dubbo.
It is also worth noting that in Simpson v Shaw (1886) 56 LJQB 92; 56 LT 24 it was said:
"Where proceedings involve allegations of significant notoriety or public importance, it may be appropriate to remove proceedings to another court".
Whilst there is not, on the evidence before me, significant notoriety or public importance, I consider a claim that has at its foundation an admitted impropriety on the part of the plaintiff and there are questions as to whether that can form a basis for proceedings for recovery, this raises questions of some legal complexity and wider import. These are questions that ought to be the subject of determination in the context of the primary proceedings in a court that determined them and second, in a court that can arguably devote more time to the determination of an issue of that nature.
Accordingly, I order pursuant to s 140 of the Civil Procedure Act, that Local Court proceedings case number 2019/217191 Dubbo Local Court, commenced by Nigel Ian Duncan, be transferred to this Court.
[2]
Costs
Mr Dawson has sought a costs order in his clients' favour. Normally, under the Uniform Civil Procedure Rules 2005 (NSW) costs follow the event. This means that usually if an application is successfully made, the applicant will be awarded the costs of the application. Mr Duncan did not appear and appears to have made no contact with the Court, or with the applicant's solicitors, indicating an intention to oppose the order, or to consent to it, or to appear.
Mr Dawson also drew to my attention that in the Equity proceedings, Mr Duncan took no active part. There may have been a number of reasons for Mr Duncan taking that approach. Mr Duncan then, at the cessation of the Equity proceedings, commenced proceedings at an inconvenient location to the plaintiffs, that is, the Local Court in Dubbo, directly concerned with subject matter that had been the subject of the completed Equity proceedings.
In all of the circumstances, Mr Dawson submitted, I should order the costs of the application in favour of the plaintiffs.
I am persuaded by the submissions of Mr Dawson that that is the proper course to take.
Accordingly, I order that the defendant pay the plaintiffs' costs of and associated with the obtaining of order 1 in the Summons dated 3 September 2019, including counsel's appearance on 12 September 2019 and today.
The further relief sought in the Summons, and the proceedings generally, are listed for mention before the Registrar on Monday, 14 October 2019 at 9am.
[3]
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Decision last updated: 23 September 2019
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