Joinder
6 Counsel for the respondents points to the very small overlap in the pleaded facts between the Silvestri and the first Hadgkiss claim and to the lack of overlap between the second Hadgkiss claim and the other claims. He also submits that there is no common question of law properly so called. Thus, joinder is not permissible pursuant to O 6 r 2(a) of the Federal Court Rules and no leave has been granted pursuant to O 6 r 2(b).
7 It is submitted for the applicants that O 6 r 2(a) is complied with as there are common questions of fact and law and the rights to relief arise out of the same series of transactions at and in connection with the building job. In the alternative, it is submitted that leave should be given for joinder pursuant to O 6 r 2(b). The respondents contend that there is no real overlap and no economy of litigation in granting leave. It would also involve the second, third and fifth respondents in claims in which they have no interest. Reference was made to Cheque One Pty Limited v Cheque Exchange (Australia) Pty Ltd (in liq) (2002) ATPR 41-881 and Bishop v Bridgelands Securities (1990) 25 FCR 311. It is submitted that the nature of the claims for relief are different and should not be joined.
8 There is some force in the argument that joinder is not permitted by O 6 r 2(a). However, there is a case for the grant of leave pursuant to O 6 r2(b) and there is no barrier to leave now being granted. In my opinion, there is a clear practical overlap between the evidence which would be led in relation to the Silvestri claims and the first Hadgkiss claim. Each will require consideration of substantially the same course of conduct by the same people. The resources of the Court and the parties are better utilised by hearing one case rather than two and there is no substantial injustice in doing so. The actual appearances of witnesses and parties can be scheduled to avoid unnecessary waste of time.
9 An argument against joinder is the different nature of the proceedings - one is civil and the other is penal. However, this is common enough in proceedings under Pt IV of the Trade Practices Act. Further, under that Part, the Australian Competition and Consumer Commission (the ACCC) can bring proceedings of the type here brought independently by Silvestri for compensation to third parties.
10 The joinder of other causes of actions with Workplace Relations Act claims does complicate the long-standing costs regime presently reflected in s 347 of that Act (see Seven Network (Operations) Ltd v Media Entertainment and Arts Alliance [2004] FCA 637,(2004) AIPC 91-998, (2004) 134 IR 19 at [57]-[62] and Maritime Union of Australia v Geraldton Port Authority (2000) 94 IR 404 at [61]-[78]). However, the conferral of jurisdiction upon this Court, with a wide civil jurisdiction, gives primacy to s 22 of the Federal Court of Australia Act 1976 (Cth) which requires the Court, as far as possible, to completely and finally determine all matters in controversy between the parties and avoid multiplicity of proceedings.
11 The position in relation to the second Hadgkiss claim is not so clear. It is pleaded as a discrete event leading to a separate breach. On the other hand, it arises out of the same circumstances and could not sensibly be heard without the general chronology of events being taken into account. Indeed, it is conceivable that evidence of the facts relevant to the first Hadgkiss claim and the Silvestri claim might be sought to be tendered in relation to the second Hadgkiss claim, even if heard separately, and vice versa. This would point to hearing all matters together as being the most effective course, leaving the admissibility of evidence to be sorted out at the hearing. Bearing in mind that each of the Hadgkiss claims is for a penalty, the rules must be strictly applied.
12 Whilst I can understand the concern of the respondents, in my opinion, the right balance in this case is to hear all matters together. To some extent, this will increase the task of management of the case to ensure the questions of admissibility of evidence are properly considered and that there are no other procedural disadvantages arising in the running of the case, particularly for those subject to potential penalties. This is common enough in a Judge alone trial.