Salib v Gakas [2009] NSWSC 1469 (24 December 2009)

Last Updated: 4 January 2010

NEW SOUTH WALES SUPREME COURT

CITATION:
Salib v Gakas [2009] NSWSC 1469


JURISDICTION:
Common Law Division

FILE NUMBER(S):
15140/09

HEARING DATE(S):
7 December 2009

JUDGMENT DATE:
24 December 2009

PARTIES:
Hyam Salib (Plaintiff)
William Gakas (Defendant)

JUDGMENT OF:
Hislop J

LOWER COURT JURISDICTION:
Not Applicable

LOWER COURT FILE NUMBER(S):
Not Applicable

LOWER COURT JUDICIAL OFFICER:
Not Applicable



COUNSEL:
N. Ghabar (Plaintiff)
T.D. Anderson (Defendant)

SOLICITORS:
Brydens Law Office (Plaintiff)
Alfred J. Morgan & Son (Defendant)


CATCHWORDS:


LEGISLATION CITED:
Civil Procedure Act 2005
District Court Act 1973

CATEGORY:
Procedural and other rulings

CASES CITED:


TEXTS CITED:


DECISION:
1. The summons filed on 19 October 2009 is dismissed.
2. The plaintiff is to pay the defendant's costs of the application.



JUDGMENT:

IN THE SUPREME COURT

OF NEW SOUTH WALES

COMMON LAW DIVISION

HISLOP J

Thursday 24 December 2009

15140/09 HYAM SALIB v WILLIAM GAKAS

JUDGMENT

Introduction

1 Ms Salib by summons filed on 19 October 2009 sought orders:

“1. That District Court proceedings number 6187 of 2008 be transferred to the Supreme Court.

2. That following the transfer of the District Court proceedings to the Supreme Court, the matter be heard together with Supreme Court proceedings number 4431 of 2007 and 2896 of 2008.

3. Costs in this application be costs in the cause.”

2 The summons was originally filed in the Equity Division but later transferred to the Common Law Division.

3 Counsel for Mr Gakas, the defendant named in the summons, stated that the transfer application was neither consented to nor opposed. However, the application that the District Court matter be heard with the Supreme Court proceedings was opposed.

Background

4 On 4 December 2007 Hyam Salib filed an amended statement of claim in proceedings in the Supreme Court Equity Division ( No. 4431/07) brought by her against William Gakas seeking a declaration that a partnership between them was dissolved as from December 2006 and an order for its winding up. Ancillary orders were sought, including an account and inquiry as to assets and judgment for such sum as to which Ms Salib was entitled. Ms Salib relied upon an oral partnership agreement made on or about October 2000 and an oral notice by Mr Gakas of intention to dissolve the partnership or repudiation of the partnership agreement by Mr Gakas in December 2006, which repudiation was accepted by Ms Salib.

5 In his amended defence to the amended statement of claim, Mr Gakas alleged, in short, that he and his wife owned a company called Newport Pacific Pty Limited and that in October 2000 that company retained the services of Ms Salib to perform administrative duties for which she received a commission. Mr Gakas agreed that Ms Salib left the business in December 2006. He denied there was any partnership agreement between Ms Salib and himself. Mr Gakas asserted Ms Salib was overpaid commission in the sum of $853,901.65.

6 On 2 May 2008 Newport Pacific Pty Limited filed a statement of claim in the Supreme Court Equity Division (No. 2896/08). It alleged that it had retained the services of Ms Salib from October 2000 to December 2006 and sought to recover an overpayment to her of $853,901.65. The alleged agreement for the retention of the services of Ms Salib was oral.

7 The proceedings in the Equity Division are listed for hearing together on 22 February 2010 for five days.

8 On 24 December 2008 Ms Salib filed a statement of claim in the District Court against Mr Gakas (No. 6187/08). The statement of claim alleged, relevantly:

“2. In or about November 2006 the Defendant wrongfully and intentionally assaulted the Plaintiff by repeatedly touching the Plaintiff’s bottom (‘the first assaults’).

3. On or about 4 December 2006 the Defendant wrongfully and intentionally assaulted the Plaintiff by grabbing the Plaintiff’s breast and pulling the Plaintiff towards him whilst trying to kiss the Plaintiff (‘the second assault’).

4. By reason of the matters aforesaid, being the first assaults and the second assault the Plaintiff has sustained personal injury.”

Consequent psychological and mental injury with a resultant inability to work in the business and loss of earning capacity was particularised.

9 Mr Gakas denied that he had assaulted Ms Salib.

Relevant statutory provisions

10 Section 140 of the Civil Procedure Act, 2005 states:

“(1) The Supreme Court may...on application by a party to proceedings before the District Court...order that the proceedings...be transferred to the Supreme Court.

(2) ...

(3) Proceedings in the District Court on a claim for damages arising from personal injury or death are not to be transferred to the Supreme Court under this section unless the Supreme Court is satisfied:

(a) in the case of a motor accident claim or a workplace injury damages claim:

(i) that the amount to be awarded to the plaintiff, if successful, is likely to be more than $1,000,000, and

(ii) that the case involves complex legal issues or issues of general public importance, or

(b) in any other case:

(i) that the amount to be awarded to the plaintiff, if successful, is likely to exceed the jurisdictional limit of the District Court, or

(ii) that there is other sufficient reason for hearing the proceedings in the Supreme Court.

(4) and (5) ...”

11 Rule 28.5 of the UCPR states:

“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.”

The submissions

12 Ms Salib submitted that the District Court proceedings should be transferred from the District Court to the Supreme Court and heard with the Equity proceedings. Her reasons and the response of Mr Gakas are set out hereunder.

13 Ms Salib submitted that she has not worked since the assault in December 2006. Her losses since that date, and into the future, attributable to the assault, had been calculated by Mr Katehos, an accountant retained on her behalf, at $1.5-6 million. The amount to be awarded to her, if successful, was likely to exceed the jurisdictional limit of the District Court.

14 Mr Gakas submitted that it was extremely unlikely the plaintiff, if successful in the assault proceedings, would receive more than the jurisdictional limit of the District Court of $750,000. He would consent to extended jurisdiction pursuant to s 51 of the District Court Act to enable the matter to be heard in the District Court.

15 Ms Salib submitted the calculation of the plaintiff’s loss by Mr Katehos relied heavily upon investigation by another accountant, Mr Coulter, of voluminous accounting records of Mr Gakas and his company. It would be necessary to call Mr Coulter to give evidence in the District Court proceedings and in the Equity proceedings if those proceedings were to be heard separately. This would involve unnecessary duplication, thereby increasing hearing time and costs.

16 Mr Gakas submitted that it would be unnecessary to call Mr Coulter in the assault proceedings as Mr Coulter dealt with the alleged partnership and past events while Mr Katehos simply dealt with calculation of future income. There would be no real overlap.

17 Ms Salib submitted that there were issues in the Equity proceedings as to whether she was a partner of Mr Gakas or not and the circumstances in which the partnership had ended. Ms Salib alleged the assaults led to the dissolution of the partnership. As a result, it would be necessary to lead evidence in the Equity proceedings as to the circumstances surrounding the relationship of Ms Salib and Mr Gakas, including evidence of the assaults. If the District Court proceedings were heard separately there would be a significant overlap which would occasion the calling of the same witnesses to give the same evidence in both the Equity proceedings and in the District Court. This would occasion increased hearing time and costs. This overlap and the overlap as to the accountant’s evidence provided sufficient reason to transfer the proceedings to the Supreme Court to be heard with the Equity proceedings.

18 Mr Gakas submitted that the reasons why the business arrangement between Ms Salib and Mr Gakas had come to an end was irrelevant to the Equity proceedings and the evidence sought to be relied upon by Ms Salib in this regard would be objected to as irrelevant in the Equity proceedings.

19 Mr Gakas submitted that the Equity proceedings were listed for hearing on 22 February 2010 and he would be prejudiced if that date was vacated. If the District Court proceedings were to be heard with the Equity proceedings an adjournment would be required as Ms Salib had not served an updated statement of particulars setting out the details of her loss and the plaintiff’s economic loss report had only been recently served and it was unlikely it could be responded to before the February hearing date. The length of the hearing would be increased beyond the five day estimate. These matters would result in the loss of the hearing date and the incurring of additional costs.

20 Ms Salib did not concede there would be a need for the Equity proceedings to be adjourned. Mr Gakas had retained an accountant in the Equity proceedings and the obtaining of a report in response to Mr Katehos’ report would not result in the need to vacate the hearing date. Ms Salib would, if necessary, be prepared to accept late service of such a report. Presumably Ms Salib’s loss schedule could be prepared quickly now that Mr Katehos’ report was to hand.

21 Mr Gakas submitted that in terms of case management, it was not appropriate for a judge hearing a partnership matter to also be dealing with a personal injury issue. There were obviously different legal tests. The way damages would be assessed in the two matters is extremely different. Apart from the commonalities of some of the parties, none of the facts that that judge will be required to turn his or her mind to has any overlap with the other matter. Different senior counsel had been retained to represent Mr Gakas in the District Court proceedings.

Conclusion

22 In my opinion the application should be refused for the following reasons:

(a) Mr Gakas is prepared to consent to the extension of the jurisdiction of the District Court pursuant to s 51 of the District Court Act;

(b) the degree of possible overlap of the evidence in the Equity proceedings and the evidence in the District Court proceedings is disputed. I am unable, on the materials before me, to resolve that dispute. However, if Mr Gakas is correct, there is no relevant overlap. If Ms Salib is correct, the overlapping issues will fall for determination in the higher court and will give rise to appropriate estoppels which will reduce or obviate the need for duplication of evidence in the District Court;

(c) Ms Salib commenced proceedings in the District Court on 24 December 2008, after the commencement of the proceedings in the Supreme Court. The summons to remove those proceedings into the Supreme Court was not filed until 19 October 2009;

(d) Mr Gakas would suffer prejudice if the hearing date presently fixed for the Supreme Court proceedings was vacated. If the application that the District Court proceedings be heard with the Supreme Court proceedings is granted, the hearing date will almost certainly be vacated either to enable Mr Gakas to properly prepare his defence to the personal injury action or by reason of the increased hearing time required for the combined proceedings. Alternatively, if all proceedings were to be heard on that date, Mr Gakas’ defence may be under-prepared by reason of the short preparation time afforded him, particularly having regard to the intervening vacation period;

(e) it is inappropriate in the circumstances to have a concurrent hearing in the Equity Division of an action for damages for “psychological and mental injury” and a partnership dispute.

Orders

23 I make the following orders:

1. The summons filed on 19 October 2009 is dismissed.

2. The plaintiff is to pay the defendant’s costs of the application.

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LAST UPDATED:
24 December 2009