The Defendant (Muhammad Badarne) in proceedings 2014/92525 (the current proceedings) has, by notice of motion, filed on 12 December 2014, moved the court for an order that the current proceedings be joined with proceedings 2012/129649. Despite the form of the order in the notice of motion, it was made clear during the hearing that the Applicant/Defendant was in fact seeking an order that the two proceedings be heard together pursuant to UCPR 28.5.
Mr Krochmalik appeared on behalf of the Applicant/Defendant. Mr Rollinson appeared on behalf of the Respondent/Plaintiff who was also the Defendant in proceedings 2012/129649. Mr Donnelly, solicitor, appeared on behalf of the Plaintiff in proceedings 2012/129649.
The Plaintiff in proceedings 2012/129649 made an application for a similar order. That application was brought at a time when the Plaintiff in those proceedings, Ms Fregnan, was representing herself. Gibb DCJ dismissed that motion on 29 October 2014. It appears that there was no affidavit or other evidence brought in support of the application. Her Honour's notes in dismissing the motion note that the other proceedings sought to be joined were "unspecified." In this respect the motion did not provide details except "proceedings which were commenced against Muhammad Badarne for malicious prosecution and Mr Vince Stanizzo in suing me for the same thing as someone else."
The statement of claim in proceedings 2012/129649 alleges that the Plaintiff was the subject of two sexual assaults by the Defendant while his solicitor's firm was acting on her behalf: -
1. On 19 September 2008. That incident is said to have occurred at the Defendant's home at 19 Pearce Avenue, Balgownie. This is described at (8) and (9) of the statement of claim.
2. On 25 May 2009, when the Plaintiff claims she was coerced into the office of Mr Stanizzo who locked the door and prevented the Plaintiff from leaving his office, thereby, falsely imprisoning the Plaintiff and subsequently had unwanted sexual contact with the Defendant (including sexual intercourse) as described in (16) of the statement of claim.
The statement of claim pleads that Badarne, the Defendant in the current proceedings was in the adjacent office and attempted to open the door of Mr Stanizzo's office in order to enter at the time of the assault on 25 May 2009.
An amended cross-claim was filed by Mr Stanizzo against Ms Fregnan in proceedings 2012/129649. That cross-claim alleges malicious prosecution on the basis set out in paragraphs (11)(a), (b), (c), (12) and (13).
By way of amended statement of claim in the current proceedings, Mr Stanizzo also brings proceedings against Muhammad Badarne for malicious prosecution. The amended statement of claim relates to at least part of a sequence of events described in Mr Stanizzo's action against Ms Fregnan.
The proceedings between Messrs Fregnan and Stanizzo are currently listed for hearing for five days commencing 16 April 2015. The Plaintiff's application by notice of motion, dated 22 May 2014, to dismiss the cross-claim is also listed for hearing on that day.
Mr Stanizzo has also filed a motion on 15 September 2014, which inter alia seeks orders that the Plaintiff's claim be summarily dismissed under UCPR 13.4 or struck out under UCPR 14.28. Pursuant to an order made by Elkaim DCJ, that motion is also listed for hearing on 16 March 2015.
Ms Fregnan, the Plaintiff, in the associated proceedings, through her solicitor Mr Donnelly, foreshadowed an application on his client's behalf to vacate the hearing dates referred to in [9] above, on the basis that the matter is not ready to proceed. A notice of motion to this effect was filed in Court on 9 February 2015 and has been stood over to 16 February 2015. I have not had regard to this matter as it has yet to be determined before me.
In considering the application as it stands I must first be satisfied that the relevant preconditions of UCPR 28.5 are met.
The rule pursuant to which the application is brought reads as follows: -
28.5 Consolidation etc of proceedings
If several proceedings are pending in the court and it appears to the court:
(a) That they involve a common question, or
(b) That the rights to relief claimed in them are in respect of, or arise out of, the same transaction or series of transactions, or
(c) That for some other reason it is desirable to make an order under this rule,
the court may order those proceedings to be consolidated, or to be tried at the same time or one immediately after another, or may order any of them to be stayed until after the determination of any other of them.
In the current proceedings, a central allegation is that Mr Badarne knew that certain material false statements were made. They included statements referrable to Ms Fregnan (now Ms Vallano), about events occurring in the office of Mr Stanizzo. The particulars of malice are given in relation to a conspiracy between Mr Badarne and Ms Fregnan.
In the amended cross-claim, at (11)(b), it is pleaded:-
"The only person knowing whether Vallano's allegations regarding the offences are true were Stanizzo, Vallano and (to the extent stated) Badarne. The police and the DPP were entirely reliant on the evidence of Vallano and Badarne in deciding to institute and conduct the prosecution."
and at (11)(c):-
"Badarne made the statements to police purporting to corroborate the evidence of Vallano in regards to the 25 May 2009 offence. Badarne's statements were deliberately false. Badarne further conspired with Vallano to assist in fabricating the false allegations in statements regarding all the offences alleged by her."
Similar wording to the abovementioned paragraphs are to be found in subparagraphs (d) and (e) of the amended statement of claim at paragraph (10).
In my view there are clear questions of fact that are common to both proceedings. Apart from this overlap and related questions of credit of witnesses, I am satisfied that the question of "who was the prosecutor" for the purposes of the tort is one which is, in the circumstances, common to both cases.
Mr Stanizzo, in his argument, resists joinder, pointing to a number of factors distinguishing the two proceedings. It is inevitable in a case such as this that there are distinctions, as indeed there are matters common. Having considered the matter, I am satisfied that the amended statement of cross-claim in 2012/129649 and the amended statement of claim in the current proceedings do involve common questions and rights to relief claimed by Mr Stanizzo that arise out of or in respect of the same event (transaction) or series of events (transactions). The commonality is such as to engage UCPR 28.5.
The next question is one of discretion. The relevant principles were summarised at [11] of the decision of Preston CJ in Attard & Ors v Transport for NSW [2013] NSWLEC 176:-
Considering these principles in turn:-
1. Are the proceedings broadly of a similar nature?
Ms Fregnan's action is one alleging assault and the amended cross claim against her and proceedings against Bardane are as described above. The similarity between that the amended cross-claim in the 2012/129649 and the amended statement of claim in the current proceedings is as described above. The principal proceedings in the Fregnan matter involves an interrelated sequence of events.
1. Are there issues of fact and law common to each proceeding?
Answer- yes, as discussed above. I am satisfied that, were separate proceeding to be maintained, there would be the potential of conflicting findings on the various questions of fact and law posed.
1. Will witnesses (lay and expert) in one proceeding be witnesses in one or more of the other proceedings?
It is clear that even in the action brought by Ms Fregnan, Mr Badarne will be a witness and in the proceedings 2012/129649, there will be a significant level of overlap in evidence.
1. Has there been an alternative proposal put forward that there be a test case?
No.
1. Is there a prospect of multiple appeals with substantial delays if the proceedings are not tried at the same time?
This was not specifically addressed in argument but is implicit.
1. Will there be a substantial saving of time if the proceedings are tried at the same time, compared to each proceeding being tried separately?
Mr Krochmalik acknowledges that there will be an impact but asserts that this will lead to the estimate of the hearing length being extended from 5 to 7 days for both matters. Mr Rollinson disputes this by suggesting that this estimate will be extended to a much greater length, which he described as "weeks."
Whilst there will be some additional time required I am satisfied that overall there will be a significant saving of time compared to if the proceedings were to be run separately.
1. Will an order that the proceedings be tried at the same time create difficulties in terms of trial management, complexity of procedural issues and difficulties in determining cross-admissibility of evidence?
In my view, there is nothing that arises in this regard with the exception of the state of readiness of the respective proceedings.
1. Is one proceeding further advanced in terms of preparation for trial than the other?
Proceedings 2012/129649 were filed at an earlier point in time. While Mr Stanizzo has raised the issue of having the proceedings brought against him determined as soon as possible, the commencement of the cross-claim in the Fregnan matter and proceedings in this matter were the product of his timing. It is not at all apparent to me why he chose to do so separately as he has done. It is still open to seek an order under UCPR 9.10. This is something that I raised with both parties on 9 February 2015.
1. Are there proceedings to be inconvenienced if all the proceedings to be tried at the same time?
Mr Stanizzo is the objecting party to the proposed application. However the other parties consent. Overall there will be a convenience to the parties in an order for the matters to be heard together.
In all of the circumstances I am satisfied that it is appropriate to exercise discretion in favour of the Defendant in the current proceedings. Accordingly, I order pursuant to UCPR 28.5 that proceedings 2012/129649 and the current proceedings (2014/92525) be heard together.
I will hear the parties as to costs.
[2]
Amendments
02 March 2015 - Paragraph numbering amended
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Decision last updated: 02 March 2015