CMT PTY LTD & ANOR -v- WILKIE [2008] WADC 120 (3 September 2008)

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA

CITATION : CMT PTY LTD & ANOR -v- WILKIE [2008] WADC 120

LANDTEC PROJECTS CORPORATION PTY LTD (ACN 110 704 875)

Procedure - Application to join second defendant - Stay of related proceedings

District Court Rules 2005 (WA)

1 PRINCIPAL REGISTRAR GETHING: By chamber summons dated 24 July 2008, the plaintiffs (CMT Pty Ltd and Landtec Projects Corporation Pty Ltd ("Landtec")) seek to join Spiers Earthworks Pty Ltd ("Spiers") as a second defendant to the action. The existing defendant is Anthony Wilkie ("Wilkie"). I will refer to this action (CIV 2595 of 2005) as the "Wilkie Action".

2 In separate proceedings, Landtec already has an action in progress against Spiers. I will refer to this action (CIV 495 of 2007) as the "Spiers Action". Both actions have a common factual background, the precise extent of which is an important issue for determination in the present application.

3 In substance, the plaintiffs seek to use the joinder of Spiers to the Wilkie Action as a means of consolidating the two actions. This would be done by staying the Spiers Action if leave is granted (Landtec has filed a minute of proposed orders to this effect in the Spiers Action). Because of the potential impact of the orders sought in the present application on Spiers, I gave leave for counsel for Spiers to be heard on the present application.

4 The Wilkie Action was commenced in November 2005. The current statement of claim is that dated 23 December 2005. The plaintiffs' claim against Wilkie arises out of an agreement under which Wilkie would provide consulting engineering services to the plaintiffs in relation to a subdivision of land at Pinjarra ("the Land"). The claims are for breach of contract and breach of duty of care.

5 In par 11 of the statement of claim, five specific breaches are identified, namely that Wilkie:

"11.1 failed to certify progress payments for the contractor performing the site works within the times limited by the contract between the second plaintiff and the contractor;

11.2 prepared construction drawings without requisite skill;

11.3 failed to respond to communications from relevant authorities, the contractors and the plaintiffs timeously;

11.4 failed to supervise work performed by the contractors; and

11.5 failed to accurately assess the earthworks required."

6 The plaintiffs have filed a number of sets of particulars, the current set being dated 15 June 2007. It is necessary to examine the particulars in detail to discern the extent to which the allegations in the Wilkie Action already relate to Spiers.

7 As to par 11.1, Spiers is identified as one of the contractors whose progress payments were not certified within the requisite time frames.

8 As to par 11.2, the plaintiff refers to a number of drawings, then sets out a number of aspects of the roadworks which it says reflect design faults. The roads referred to are: James Eden Drive (Second Road), Zarume Way (Third Road), San Simeon Way (Fourth Road), Hanover Way (Sixth Road) and Curtis Lane.

9 As to par 11.3, some 164 items of correspondence are referred to in the particulars in tabular format. Of these 30 refer to Spiers in either the "description of document" or "substance of communications" columns. These references are over the period 5 March 2005 to 4 August 2006, as compared to the total duration of the correspondence being 21 January 2006 to 18 August 2006. (In the context of the pleadings as a whole, it appears that the references to August "2006" just quoted, should be to August "2005"). There is also a reference to five progress claims, which may well be those of Spiers, though this is not apparent from the particulars.

10 As to par 11.4, Spiers is identified as one of the contractors whose work Wilkie failed to supervise. This failure to supervise was said to have occurred from on or about May 2004 to 11 October 2005 (again, it appears that the "2004" references seems to be a typographical error, and the reference should be to "2005"). In response to a request for the plaintiffs to provide particulars of "the work the defendant failed to supervise", the plaintiffs responded: "Earth works, Road works, Electrical works and Water works, in their entirety".

11 As to par 11.5 (being a failure to accurately assess the earthworks required), the particulars do not refer to Spiers.

12 There are then particulars to the allegation in par 12 of the statement of claim that by reason of the breaches, the plaintiffs suffered loss and damages. In relation to Spiers, the particulars state (answer 13.1):

"With respect to James Eden Drive the defendant failed to properly supervise the compaction of the sub-base for the road-works and to ensure the use of suitable materials at chainages 120-270."

13 Answer 13.1 goes on to refer to certain variation costs incurred by the plaintiffs. There is no further reference to Spiers in this answer.

14 In a Schedule of Damages dated 10 August 2007, the damages are particularised as follows (I have not quoted an additional column in this table which sets out the basis for the calculations):

Completion of remedial work to Curtis Lane, Zarume Way, Hanover Way and San Simeon Way, Pinjarra

Losses incurred by way of variations necessitated due to the failure of the defendant as particularised in answer 13.1 of the plaintiff's answers to the defendant's request for further and better particulars of statement of claim

BM & RV Waters - Losses incurred by reason of the defendant's failure to properly supervise works, prepare drawings with requisite skill and respond to communications timeously and delaying the project such that the plaintiffs were required to engage BM & RV Waters to cover the project lots with a top soil

Foreshore Fencing - Losses incurred by the plaintiffs by reason of the defendant's failure to properly supervise works, prepare drawings with requisite skill and respond to communications timeously Western Power transformers were placed in the incorrect position and Foreshore Fencing had to be engaged a contractors to install post and panel retaining walls to transformers and remove as direct

DPM Engineering - Losses incurred by the plaintiffs by reason of the defendant's failure to complete his duties as project superintendent

15 Item 1 does not on its face include a reference to James Eden Drive, being the item for which Wilkie is alleged to have failed to supervise Spiers. The damages claimed at items 2 to 5 do not on their face relate to work done by Spiers. Further, the reference to variations in answer 13.1 does not refer to Spiers.

16 In his defence dated 27 January 2006, Wilkie sets up a slightly different contractual framework, but accepts a duty of care to perform his services (under the engagement he pleads) with the reasonable care, skill and diligence of a consulting engineer. He denies the plaintiffs' claims and seeks to set-off, and counterclaim for, just over $70,000 for unpaid fees. Nowhere in Wilkie's pleadings is there any reference to Spiers.

17 The Spiers Action was commenced by writ dated 19 March 2007. In the Spiers Action, Landtec pleads that by an agreement in writing dated 21 February 2005, Spiers was engaged to construct drainage, road works, bridle paths, earthworks and underground power for the subdivision of the Land.

18 By application in the Spiers Action dated 23 April 2007, Spiers sought to stay that action pending determination of an arbitration of the matters in dispute. The stay was granted by a Deputy Registrar, but overturned on appeal by his Honour Judge O'Sullivan DCJ. Counsel for the plaintiffs placed weight on comments made by the judge in this decision, reported as Landtec Projects Corporation Pty Ltd v Spies Earthworks Pty Ltd [2007] WADC 204. After reviewing the contract between Spiers and Landtec, and the pleadings in both actions, his Honour made the following comments (at [22 - 23], [26]):

"22. In my opinion there is a real possibility that issues raised before the Arbitrator will also arise in the action between the plaintiff and Mr Wilkie in this Court.

23. Counsel for the defendant argued that the matters pleaded in the two actions in this Court are quite separate and of course that is true. Mr Wilkie's duties to the plaintiff under the contract between them were different to the defendant's duties. But it is quite clear from the affidavit of Mr Spiers dated 30 April 2007 that in defending any claim against it the defendant will say that any defects in the work carried out by it were the responsibility of Mr Wilkie as designer or superintendent or supervisor of the work. As to that cl 8.1, cl 8.4, cl 28.3 and cl 42.6 of the General Conditions would appear to have a bearing.

...

26. In my opinion it is clear that the matters to be canvassed in the plaintiff's action against Mr Wilkie are so closely connected with those to be argued between the plaintiff and the defendant that it is desirable that both claims be dealt with in this Court. In that way the danger of any inconsistency between the decision of an Arbitrator and a Judge of this Court can be avoided and the need for evidence to be taken more than once from witnesses may also be eliminated."

19 In the hearing of the present application, counsel for Spiers and counsel for Wilkie submitted to the effect that I was not bound by this decision as it concerned a different issue. Moreover, I now have the benefit of more detail in the pleadings and particulars which, it was submitted, makes it clear that there is no real overlap. Counsel for Wilkie also pointed out that Wilkie had not been heard before Judge O'Sullivan. Counsel also submitted that the relevant portion of Mr Spier's affidavit dated 30 April 2007 referred to by the judge does not support the conclusion that Spiers would be defending the claim by attributing responsibility to Wilkie. Indeed, on the pleadings in the Spiers Action, this has not occurred.

20 The salient point for present purposes is that the Spiers Action was allowed to proceed in the District Court to reduce the risk of any inconsistent decision in the determination of the claims against Wilkie and Spiers, and to avoid the need for the same evidence to be taken more than once from the same witnesses.

21 The current statement of claim in the Spiers Action is dated 5 March 2008. The statement of claim sets out in detail the contract between Landtec and Spiers. The documents said to comprise the contract include "letters dated 16 and 21 February 2005 from Anthony Wilkie to defendant" (par 4.2(e)) and "various plans and drawings issued by Wilkie and as stated in the Tender Forms dated 21 and 24 January 2005". The terms of the contract refer at a number of points to a "Superintendent" who has certain defined responsibilities. It was common ground before me, though not yet pleaded, that Mr Wilkie was initially appointed to this role.

22 Two breaches are pleaded. The first (at par 5) is that:

"... the defendant failed to use the materials and standard of workmanship required by the Contract insofar as in the construction of James Eden Drive, the defendant failed to properly compact the sub-base and/or used poor materials at chainages 120-270".

23 The second is a breach of a time for completion clause in the contract, said to give rise to a claim for liquidated damages in the amount of $166,152.

24 In its defence, set-off and counterclaim dated 3 June 2008, Spiers denies the claim in relation to James Eden Drive. It does not seek to attribute responsibility to Wilkie. The claim for liquidated damages is also denied, with a plea that Landtec engaged Spiers to perform certain additional work. It seems implicit that it was because of this additional work that the initial time for completion was not met. Spiers goes on to setoff, and counterclaim for, the cost of the additional work in the amount of just over $285,000.

25 Landtec's reply and defence to counterclaim dated 17 June 2008 merely joins issue and denies the entitlement to relief on the counterclaim.

The proposed statement of claim should Spiers be joined to the Wilkie Action

26 The plaintiffs filed an affidavit sworn by its solicitor, Bruce Grubb, and dated 21 July 2008, in support of the application. It contains a minute of proposed, substituted statement of claim, with Spiers as the second defendant.

27 The claims against Wilkie do not change from that set out in the statement of claim dated 23 December 2005. There is nothing in Mr Grubb's affidavit to the effect that the plaintiffs propose to change the substance of the particulars provided (although new particulars will need to be filed to match the paragraph numbers of the substituted statement of claim).

28 The claims against Spiers again do not materially change from those in the statement of claim in the Spiers Action. The one additional plea is that Wilkie was appointed Superintendent under the relevant contract.

29 In his affidavit, and in submissions, Mr Grubb refers to a letter dated 9 July 2008 from his firm to Wilkie's solicitors. In particular, reference was made to point 5.4 and a report from a Dr Emery. Dr Emery, I was told from the bar table, is the expert retained by the plaintiffs. Point 5.4 states:

"Dr Emery's report dated 1 June 2007 at page 4 suggests joint liability for defects to road-works as between Spiers and Wilkie as follows:

(a) Spiers is responsible for the defects and remedial road-works necessarily undertaken for James Eden Drive, which my client pleads as a design fault against yours - (see paragraph 9.2 of plaintiffs' answers); and

(b) Wilkie is responsible for the balance of the defects and remedial roadworks, namely Curtis Lane, Zaruma Way, Hanover Way and San Simeon."

30 I pause here to reiterate that the remedial work to the roads in par (b) is claimed to result in $6,100 in damages.

31 It is convenient at this stage in the analysis to make three findings based on the material dealt with above.

32 The first is that Wilkie Action and the Spiers Action share the same factual background, namely the subdivision of the Land by Spiers (and other contractors) under the supervision of Wilkie. The extent of the overlap is illustrated by the particulars to the claim that Wilkie failed to respond to correspondence from relevant authorities and contractors timeously. If the actions proceed to trial separately, it is likely that the plaintiff will have to call witnesses to give the overall factual chronology in both trials. The evidence will be duplicated at least to this extent. It is also likely that the plaintiff will have to call Dr Emery in both trials, albeit with different points of emphasis in each trial. From the defendant's perspective, it is by no mean clear from the pleadings and particulars which witnesses will be called. The fact that Wilkie was the Superintendent under the contract between the plaintiffs and Spiers gives rise to a real prospect (but not a certainty) that he will be called to give evidence in the Spiers action. I thus find that:

(a) the Spiers Action and the Wilkie Action share the same overall factual foundation;

(b) it is likely that at least some common witnesses will be called at the trial of both actions; and

(c) it is inevitable that there will some duplicated evidence at the trial of both actions.

33 The second is that nowhere in the existing or proposed pleadings do the plaintiffs plead any cause of action in which liability is asserted either jointly or in the alternate between Wilkie and Spiers. The closest there is to an overlap is in relation to the completion of the roadworks. In the Wilkie Action, there is a plea of a breach by Wilkie in his supervision of Spiers in relation to James Eden Drive ([12] above]. However, no damages appear to have been claimed for this breach ([15] above). This is perhaps understandable as the plaintiffs' expert evidence attributes this to Spiers and not Wilkie ([29] above]). In the Spiers Action, there is a plea of a breach in relation to James Eden Drive ([22] above). However, there is no alternate (nor any proposed alternate) plea attributing liability to Wilkie's failure to supervise should the plaintiff's expert not be accepted. Neither is there a plea by Spiers attributing liability to Wilkie (foreshadowed on behalf of Spiers in the materials before Judge O'Sullivan as quoted above).

34 In written submissions, counsel for the plaintiffs stated that at all relevant times Spiers was receiving instructions from Wilkie as project Superintendent under the contract with the plaintiffs. The submissions continue:

"Whether or not as a matter of fact those instructions:

(c) caused and/or contributed to the loss or damages suffered by the plaintiff in both Actions,

are matters that may concern apportionment of liability, which the trial Judge should properly hear and determine in one action."

35 However, this submission is not reflected in the pleadings. As noted above, nowhere in actual or proposed the pleadings (from any of the parties) does any party plead a liability that is joint or alternate as between Spiers and Wilkie. No question of apportionment yet arises on the pleadings.

36 Third, there is nonetheless a risk of inconsistent findings of fact should the two actions proceed to separate trials. In each trial, the findings of fact must necessarily be based on evidence. If tried separately, the different parties and different issues in dispute on the pleadings in each action, means that the evidence at each trial will not be identical. The findings of fact would also need to be made at each trial in the light of potentially different cross examination at each trial, the rule in Brown v Dunn (1893) 6 R 67 (HL) requiring the parties to put different facts to witnesses in light of the different pleadings. It would obviously be impermissible for the judge to use evidence called in one action, but not in the second, as a basis for factual findings. In order for there to be no risk of inconsistent findings of fact, the judge must have available the same suite of evidence (tested by the same cross-examination) in both trials. Otherwise, the judge may be bound to make two findings of fact (one in each action), each of which is the correct finding on the particular, limited, suite of evidence before the judge, but which together are inconsistent.

Leave to join Spiers as a defendant in the Wilkie action

37 Having set the context, the application by the plaintiffs to join Spiers as a defendant to the Wilkie Action can now be considered. The starting point is to note that it was open for the plaintiffs to have initially commenced one action in which both Spiers and Wilkie were defendants. Rules of the Supreme Court 1971 (WA) ("RSC") O 18 r 4(1(b) provides that "2 or more persons may be joined together in one action as... defendants... where... all rights to relief claimed in the action (whether they are joint, several or alternative) are in respect of or arise out of the same transaction or series of transactions". This rule is subject to the power of the court in RSC O 18 r 5(1) to order separate trials. Having chosen not to do so upon commencement, the question then is whether the plaintiffs can, and should be allowed to, now join Spiers as a defendant.

38 The Court has the power to make the orders sought. The power to join a further defendant to an action is contained in RSC O 18 r 6(2). So far as is relevant, this rule provides:

"(2) At any stage of the proceedings in any cause or matter the Court may on such terms as it thinks just and either of its own motion or on application - ...

(b) order that any person who ought to have been joined as a party or whose presence before the Court is necessary to ensure that all matters in dispute in the cause or matter may be effectually and completely determined and adjudicated upon, be added as a party ..."

39 The first question is whether Spiers "ought to have been joined as a party" to the Wilkie action. The word "ought" in its ordinary meaning connotes a duty, requirement or obligation: The Macquarie Dictionary (2nd rev 1981, p 1209). An example of where a plaintiff "ought" to have joined another party in this sense is found in RSC O 18 r 4(2) which provides that where a plaintiff is jointly entitled to relief, all persons so entitled must be joined. It cannot be said that the plaintiff "ought" to have joined Spiers to the Wilkie action in this sense. Even if joint relief was to be claimed, the plaintiffs have the power to have joined both Wilkie and Spiers in the initial action, but not the obligation to do so (RSC O 18 r 4(3)). The word "ought" may well have a slightly wider meaning in its historical context, more or less the same as the second clause in O 18 r 6(2)(b): Qantas Airways Ltd v A F Little Pty Ltd [1981] 2 NSWLR 34, at 53.

40 The key question is whether the presence of Spiers in the Wilkie action is "necessary to ensure that all matters in dispute in [the Wilkie action] may be effectually and completely determined and adjudicated upon".

41 In Woodings v Stevenson [2001] WASC 174; (2001) 24 WAR 221, Justice Owen held that RSC O 18 r 6(2) is to be construed beneficially, and is wide enough to encompass case management considerations. Specifically, his Honour comments (pp 224, 226 - 227):

"12. Order 18 r 6(2) takes its flavour from the preceding sub-rule. It is designed to avoid unnecessary technicality so as to enable parties to litigate the real issues between them in an expeditious, effective and cost efficient way. I think the sentiments expressed in cases such as McInnes v Wingcarribee Shire Council (1987) 10 NSWLR 660 at 668 and Bridge Shipping Pty Ltd v Grand Shipping SA [1991] HCA 45; (1991) 173 CLR 231 at 260 - 261, although in relation to different statutory provisions, are apposite. In Bridge, McHugh J said: '[The rule] is a remedial rule and should be given a beneficial interpretation. It is proper to give it the widest interpretation which its language will permit'.

...

1. ... in O 18 r 6(2)(b) the word 'necessary' does not stand alone. It is part of the phrase: 'necessary to ensure that all matters in dispute in the cause or matter may be effectually and completely determined and adjudicated upon ...'. This phrase, I think, is wide enough to encompass modern notions of case management and the desire of the justice system to minimise time and costs in litigation."

42 A similar approach was taken by Glass JA (with whom Samuels JA agreed ) in Qantas Airways (supra). His Honour was of the view that the question of necessity is to be judged in the context of the nature of the specific application. In that case, as in the present one, the context was a plaintiff seeking to join an additional defendant. His Honour comments (at pp 37 - 38):

"The relevant procedural context discloses a plaintiff seeking leave after commencement of proceedings to add a party which he could have joined... without leave when filing his originating process. It cannot be an effective answer to the party resisting addition to point out that the proceedings as constituted cannot yield an order which will directly affect him. It is for this reason that the application is being made. It seems to me that the addition of a further defendant in those circumstances is not only sanctioned but encouraged by the statutory imperative ... of the rules that multiplicity of proceedings be avoided."

43 In Qantas Airways the plaintiff contracted with the defendant to build a building. After completion, the plaintiff discovered structural defects. It sued the architects and engineers in contract and tort. Some 2½ years into the action, it sought to join the builder as an additional defendant, also alleging breaches in contract and tort. The court accepted that there was a tenable basis for the plaintiff's claim that the building defects were contributed to by the builder (at 42) and that one of the defences forecast was that it was the builder and not the architects or engineers who were responsible (at 54). Issues of joint liability and apportionment clearly arose. The New South Wales Court of Appeal allowed the joinder.

44 Mahoney JA, who agreed in the outcome, stated that the phrase "matters in dispute" in the relevant rules "should be interpreted widely and beneficially and as able in this case to extend to comprehending responsibility for the defective brickwork" (at 54). Glass JA came to a similar conclusion by a slightly different route (at 38):

"Where a plaintiff applies to add a defendant the phrase 'all matters in dispute in the proceedings' should not be construed as limited to matters in dispute arising on the existing pleadings. It may also properly include those disputed issues of fact which are subjacent to the pleadings. For present purposes the phrase in my opinion includes questions such as whose default caused the instability of the structure and who is liable to the plaintiff in damages for such instability. When the plaintiff asserts on tenable grounds that such matters of dispute cannot be completely determined without the joinder of the builder as a party, a ground for the exercise of the power... is made out and an order to that effect cannot be challenged for want of power."

45 In looking at the "matters in dispute", the Court may have regard to affidavit evidence: Re Great Eastern Cleaning Services Pty Ltd [1978] 2 NSWLR 278, at 280 - 281.

46 Looking at the pleaded cases, the subjacent facts and case management considerations more generally, there are a number of factors suggesting that Spiers ought to be joined to the Wilkie Action:

(a) the Spiers Action and the Wilkie Action share the same overall factual foundation or subjacent facts;

(b) consolidating both actions would obviate the cost and duplication of common witnesses being called at the trial of both actions;

(c) joiner would be consistent with the policy of avoiding a multiplicity of proceedings about the same facts;

(d) joinder would also obviate the risk of inconsistent findings between the two trials.

47 However, there are also a number of reasons why the Court in the exercise of discretion should not allow the plaintiffs to join Spiers to the Wilkie Action, as follows:

(a) from the minute of proposed substituted statement of claim, there are no joint or alternate claims proposed to be made against Spiers should they be joined;

(b) the plaintiffs have not identified any claims that they will be precluded from raising either against Wilkie or Spiers unless Spiers is joined as a defendant to the Wilkie Action;

(c) if Spiers is joined to the Wilkie Action, the pleadings in each case - which are in an advanced state - will need to be redone, necessitating cost to both Spiers and Wilkie;

(d) although Spiers and Wilkie could be compensated for costs thrown away, they should not be put to these costs in the first place unless there is a clear forensic need for that to occur;

(e) likewise, the joinder of Spiers to the Wilkie Action would increase the length of trial and the scope of trial preparation for each defendant, again something which should be avoided unless there is a clear forensic need for it to occur.

Other ways of mitigating the risks of doing an injustice

48 Before finally determining whether it is appropriate that Spiers be joined to the Wilkie action, it is necessary to consider the other alternatives by which the risks of doing an injustice to the parties may be mitigated. I have heard from counsel for Spiers in the present application, and thus had before me counsel for all parties in the Spiers Action, as well as the Wilkie Action. In the course of argument I raised with counsel a number of alternative courses of case management for the actions. Accordingly, procedural fairness has been accorded to the parties in respect of the consideration which follows.

49 The specific question that arises is whether there is a better way to balance the risks of doing an injustice as between the parties than by joining Spiers to the Wilkie Action. This is a case management question. By District Court Rules 2005 ("2005 DCR") r 26 and 32(2), the Court can make case management directions "at any time in a case" and more specifically, when hearing an application in the case. "A case management direction is any procedural direction that in the Court's opinion it is just to make to facilitate the case being conducted and concluded efficiently, economically and expeditiously" (2005 DCR r 24(1)). All case management is undertaken in the context of the "ultimate aim of a court [which] is... the attainment of justice": The State of Queensland v J L Holdings Pty Ltd [1997] HCA 1; (1997) 189 CLR 146, at 154.

50 It is readily apparent to me from the volume of materials in each court file and the number of contested hearings in the actions that there is a real risk that the costs of the actions will balloon out of all proportion to the amounts in issue. Timeliness is also an issue: the Wilkie Action was commenced in November 2005, the Spiers Action in March 2007. Indeed, one reason why Wilkie opposes the application to join Spiers is the delay in the Wilkie Action being progressed to trial. Whatever orders are made, they need to provide for the just determination of all claims in a manner that is "efficient, economic and expeditious".

51 As noted above, in an earlier application in the Spiers Action, Judge O'Sullivan made some comments about the extent of overlap between the two actions. Indeed, it was because of the overlap that the Court declined to stay the Spiers action pending the arbitration.

52 Shortly after Judge O'Sullivan's decision, the parties submitted a consent order, which was made by the Court, that both actions be tried before the same judge. The terms of this order were:

"The actions be listed for trial before a Judge, who is to hear District Court Action 2595 of 2005 between CMT Pty Ltd as First Plaintiff, Landtec Projects Corporation Pty Ltd as Second Plaintiff and Anthony Wilkie as Defendant, who may make such orders as to the trial of the actions as may be appropriate in the interests of justice."

53 In the hearing before me, no counsel sought to resile from the effect of this order. This position was, in my view, correct. Given the inevitable degree of factual overlap, the risk of inconsistent factual findings is such that the two actions ought to be heard by the same judge. This could be done by having either consecutive or concurrent trials.

54 A recent example of trials being listed concurrently is seen in the decision in Mulcahy & Anor v Tomkins & Ors [2007] WADC 212. In that case the two trials heard concurrently arose out of the same accident in which one prime mover and trailer (driven by a Mr Davies) collided with another (driven by a Mr Oliver). Mr Oliver was carrying an oversize load under police and pilot escort. He had commenced crossing a bridge when his vehicle was struck from behind by that driven by Mr Davies. In the first action, the owner of Mr Oliver's vehicle claimed damages against Mr Davies' employer and the driver of one of the pilot vehicles. Damages were agreed. In the second action, Mr Davies claimed damages for personal injuries arising out of the accident from Mr Oliver and the driver of the pilot vehicle. In this second action, liability was ordered to be determined as a preliminary issue. The trial judge found that Mr Davies was negligent and that none of the other parties had been negligent. Accordingly, the plaintiff was successful in the first action and the defendant successful in the second action (Mr Davies' personal injuries action). The orders that were made to knit together these concurrent trials were that the evidence in each actions stand as the evidence in the other, and that the findings of liability after trial be the findings for both actions.

55 I thus consider I have five options at the present time to progress these two actions towards trial:

(a) list each action for trial when it is ready, before the same judge, accepting that there may be a time delay between the two trials;

(b) list each action for trial consecutively before the same judge, that is, immediately after each other;

(d) join Spiers as a defendant to the Wilkie Action; or

(e) make no orders, and see what happens as the cases proceed closer to trial, with a view to seeing whether the risk of inconsistent findings falls away as the issues in dispute continue to be narrowed as they progress towards trial.

56 As discussed above ([36]), the risk of inconsistent findings can only be mitigated by the judge hearing the identical evidence, tested by the same cross-examination, at each trial. This means that listing the trials consecutively will not obviate the risk of inconsistent factual findings being made. Options (a) and (b) must fall away.

57 Option (e) is undesirable as it would be productive of further uncertainty, delay and potentially cost if a similar application to the present one had to be argued at a later date.

58 As to option (d), the present application, I am not persuaded that it is "necessary" to join Spiers as a defendant to the Wilkie Action to "ensure that all matters in dispute in the cause or matter may be effectually and completely determined and adjudicated upon". In the absence of any issues of joint or alternate liability, the primary risk of doing an injustice is if inconsistent findings of fact are made. This can be equally dealt with by an order that the trials proceed concurrently.

59 That leaves option (c). Concurrent trials seem to have less risk of injustice to the defendants. No costs would be thrown away as there is no need to rework the pleadings in both cases. The issue of delay can be dealt with by interest and tight programming orders. The issue of wasted attendance at trial can be dealt with by giving liberty to the defendants to apply to the trial judge for appropriate cost orders if their attendance at part of the concurrent trial can be shown to have been unnecessary.

60 If concurrent trials are ordered, the parties ought to be given liberty to apply to the trial judge to vary this order. This should not occur until the pleadings are finalised and counsel for each party has filed a certificate to this effect pursuant to 2005 DCR r 43(3a). It may be that once the pleadings have been finalised, the risk of inconsistent findings falls away to the extent that the trial judge will find it appropriate that for the trials proceed consecutively. In my view, this is a decision for the trial judge. The trials should be able to proceed consecutively within the time allocated for the concurrent trials. The pleadings would not have been interlinked, so consecutive trials would still be feasible.

61 If, by later amendment, any party obtains leave to amend its pleadings to include a plea by which the liability as between Spiers and Wilkie on an issue becomes joint or alternate, this can likewise be accommodated within the framework of a concurrent trial.

62 For the reasons set out above, the plaintiff's application should be dismissed. I will hear counsel on costs.

63 As to case management, my preliminary view is that orders along the following lines should be made in the Wilkie Action (with complementary orders being made in the Spiers Action):

1. the trial in District Court Action CIV 2595 of 2005 be heard concurrently with the trial in District Court Action CIV 495 of 2007 (the Spiers Action), with the evidence in each action standing as the evidence in the other;
2. there should be liberty to the parties to apply in relation to the concurrent trial of the actions, the liberty not to be exercised until each party has filed a certificate for the purposes of 2005 DCR r 43(3a);
3. the defendants have liberty to apply to the trial judge for its costs of attending part of the trial on the ground that its attendance was not necessary;
4. the actions be allocated a mediation conference in December 2008;
5. the actions be allocated a trial date in February or March 2009, subject to the availability of the parties.

64 I express this as a preliminary view in case counsel for any party in either the Spiers Action or the Wilkie Action are of the view that they have not been adequately heard in relation to the case management framework proposed. The alternative as I have said is to defer consideration of this issue.

65 At the same time as I formally deliver this judgment, I will convene a directions hearing in both actions so that orders may be made in relation to the plaintiff's application and case management more generally. Counsel should attend the case management hearing with their unavailable dates for both a mediation conference in December 2008 and a trial in February or March 2009.