the determinations made in the Test Cases on those issues would bind all of the Applicants in the single set of proceedings (ie not just the Nominated Applicants under the Consent Orders) as well as Austcorp International Limited.
It was then submitted that this so-called understanding was reflected in some formal contract made amongst some or all of the parties to the proceedings below and that this contract "… was reviewed by the primary judge and placed on the Court file";
(d) Two of the five "test cases" were settled before the commencement of the hearing conducted by his Honour which led to his reasons delivered on 1 May 2009. The three which remained were heard and determined by his Honour in his reasons of 1 May 2009 and by the orders which he has subsequently made;
(e) In light of the primary judge's reasons, the O 29 r 2 order made on 7 December 2007 and his Honour's understanding of the so-called agreement made between the parties, the primary judge has given his imprimatur to the complexion placed on events by Counsel for Mr Owers and Ms Tan-Bounkeua summarised in subpar (c) above when, on 9 June 2009, he made observations to the effect that somehow his findings in the reasons published on 1 May 2009 might constitute a basis for further findings that, as between the remaining applicants below and Austcorp, various issue estoppels arise. These observations were made on 9 June 2009 in the context of his Honour considering how to deal with the question of costs arising from the reasons published on 1 May 2009 and the costs of the hearings leading to the publication of those reasons as well as how to deal with the cases of the remaining applicants; and
(f) The procedure adopted below was perfectly regular, having been the subject of some implied leave pursuant to O 6 r 2 of the Federal Court Rules. Alternatively, it was submitted that, if leave pursuant to that rule had not already been granted, it should now be granted.
28 These submissions have not persuaded me that I am obliged to make the joinder order sought by the respondents nor do they persuade me that it would be sensible to do so were it a matter within my discretion. As matters presently stand, his Honour's 1 May 2009 decision is plainly confined to the cases of Mr Owers, Ms Tan-Bounkeua and the Lucianis. His Honour has had under consideration the question of whether the reasons and findings which underpin that decision should be carried across in some way to the cases of the remaining applicants but has expressly refrained from making any orders that might be thought to have that effect. His Honour has not yet accepted that either the orders made by him on 7 December 2007 or the alleged agreement amongst some or all of the parties below is sufficient to lead to such orders inevitably being made. It seems to me that his Honour has done no more than suggest that the application of good commercial sense might lead the parties to agree to extend some of his findings to the cases of the remaining applicants.
29 The proceedings below have not been constituted as representative proceedings under Pt IVA of the Federal Court of Australia Act 1976 (Cth) (the Federal Court Act). Nor, in my view, has any leave yet been granted by the Court (whether expressly or impliedly) to the applicants in the proceedings below to proceed to conduct those proceedings in accordance with O 6 r 2 of the Federal Court Rules.
30 The order made by his Honour purportedly pursuant to O 29 r 2 of the Federal Court Rules does no more than purport to decide that the five nominated cases be heard separately from and before the remaining cases encompassed within the Statement of Claim. It does not attempt to deal with the question of what consequences (if any) might flow from a decision in those five cases insofar as the cases of the remaining applicants are concerned. Nor could it do so.
31 Furthermore, I do not think that O 29 r 2 of the Federal Court Rules is directed to or contemplates the making of an order for the trial of a separate question in the terms of the order made in the present case. In substance, the proceedings below, as originally constituted, comprised at least 48 separate cases (and perhaps more, having regard to the fact that there were multiple respondents originally in the proceedings below) rolled up into the one Statement of Claim. I make no comment at the moment as to whether this approach to the litigation of multiple but separate claims is permissible. However, I wish to make clear that nothing in these reasons should be taken as approval of such an approach. Order 29 r 2 of the Federal Court Rules is not directed to hiving off one case from one or more other cases but rather is directed to the expeditious determination of separate questions or issues which can be appropriately identified within the one case. It is simply not apt to be deployed to decide the whole of three or five separate cases before and separately from another 43 or so cases. This view of O 29 r 2 is supported by the reasoning of the English Court of Appeal in Radstock Co-Operative & Industrial Society v Norton-Radstock Urban District Council [1968] Ch 605, [1968] 2 All ER 59, [1968] 2 WLR 1214.
32 For these reasons, I think that the only basis upon which any part of the reasons delivered by the primary judge on 1 May 2009 could conceivably be held to bind the remaining applicants in some way is if the agreement alleged to have been made amongst the parties early in the life of the proceedings below adequately and effectively operates to render part or all of those reasons binding upon the parties in all of the cases of the remaining applicants or if the parties make an agreement to similar effect in the future.
33 It is impossible for me at the moment to express any sensible views as to the effect of this alleged agreement. It is true that there are indications in the materials tendered before me to the effect that the parties to the proceedings below do regard themselves as being obliged to some extent to translate or extend in some way the ultimate findings of the Court in the three cases with which his Honour has already dealt into the cases of the remaining applicants. However, it is highly undesirable that I should express any views at all as to the effect of the so-called agreement, especially when the evidence before me as to the making of the agreement was scant to say the least and when the existence and the effect of this alleged agreement were not matters which were litigated before me in the present application. The primary judge has not made any orders which give effect to this alleged agreement or which extend the operation of any part of the reasons delivered by him on 1 May 2009 or the findings made by him to any of the cases of the remaining applicants.
34 There can be no doubt that the cases of Mr Owers, Ms Tan-Bounkeua and of each of the remaining applicants are separate cases and have not been brought in the one proceeding in order to agitate some joint right or entitlement.
35 It has not been submitted to me that the joinder of the remaining applicants is necessary in order to activate whatever agreement has been reached amongst the parties concerning some extended operation of his Honour's reasons and findings or that the joinder of those parties is a condition either to the making of that agreement or to its performance.
36 For these reasons, I do not think there is any justification or proper basis for adding the remaining applicants as parties to Austcorp's foreshadowed appeal. The joinder of the parties would not, of itself, have the effect claimed by Counsel for Mr Owers and Ms Tan-Bounkeua. The only live cases which have been finally determined by his Honour are the cases brought by Mr Owers and Ms Tan-Bounkeua. The cases of the remaining applicants have not yet been heard nor have they been determined. It is for Austcorp, the present respondents and the remaining applicants to determine what steps any one or more of them may wish to take in an endeavour to extend his Honour's reasons and findings or, indeed, the reasons and findings of the Full Court in due course, in the cases which his Honour has decided and finalised by judgments, to the cases of the remaining applicants. Whether this can sensibly or properly be done at all is a matter which I leave open.
37 No reliance was placed by Counsel for Mr Owers and Ms Tan-Bounkeua on O 52 r 14 of the Federal Court Rules. It may be thought that, by reason of the agreement alleged to have been made amongst the parties, the remaining applicants have a sufficient interest in the appeal or are affected by the relief sought in the foreshadowed Notice of Appeal. However, the existence, operation and effect of that alleged agreement has not been litigated before the primary judge. It seems to me that there may well be significant difficulties in deciding what impact or effect (if any) that alleged agreement has on the cases of the remaining applicants in light of his Honour's reasons and findings and in light of the reasons and findings of the Full Court in the event that an appeal is filed and ultimately determined by the Full Court. The obvious general interest which the remaining applicants have in the progress of the so-called "test cases" is not sufficient to engage O 52 r 14 of the Federal Court Rules.
38 His Honour's reasons and the orders which his Honour has made in order to give effect to those reasons finally determine each of the three cases with which his Honour dealt (save for costs). Only two of them remain as live cases since the Lucianis have settled their case.
39 Because those orders finally determine all of the substantive rights underpinning the cases brought by Mr Owers and by Ms Tan-Bounkeua (other than in respect of costs), his Honour's orders are final orders and Austcorp has a right to appeal from those orders pursuant to s 24(1) of the Federal Court Act. It does not need leave to appeal (see Carr v Finance Corporation of Australia Ltd (No 1) (1981) 147 CLR 246 at 248, per Gibbs CJ and at 253-254, per Mason J; and see also Sanofi v Parke Davis Pty Ltd (No 1) (1982) 149 CLR 147 at 152-153, per curiam).
40 On the other hand, because these are the only cases which have so far been determined, these are the only cases in respect of which Austcorp is presently able to appeal.
41 However, Austcorp is now out of time for the bringing of such an appeal (see O 52 r 15 of the Federal Court Rules). As I have already mentioned, Counsel for Mr Owers and Ms Tan-Bounkeua, quite properly, indicated to me that her clients were prepared to consent to an appropriate order extending the time within which Austcorp might file its Notice of Appeal from the orders which his Honour has made.
42 For the above reasons, I propose to extend the time within which Austcorp might appeal from some or all of the orders made by his Honour on 8 May 2009, 22 May 2009 and 9 June 2009 to 14 August 2009. In order to avoid further interlocutory disputation and unnecessary expenditure as to costs, I will also grant leave to appeal to Austcorp to the extent that such leave is necessary. I do not propose to make any order for the joinder of the remaining applicants to the appeal along the lines of that sought by Counsel for Mr Owers and Ms Tan-Bounkeua. The only respondents to the appeal will be Mr Owers and Ms Tan-Bounkeua. Subject to a Notice of Appeal being filed within the time permitted by the orders which I shall make, the costs of and incidental to the present application will be costs in the appeal. If no appeal is instituted, each party should bear his, her or its own costs of the present application.
I certify that the preceding forty-two (42) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Foster.