BETWEEN : WEST AUSTRALIAN CONSTRUCTION INDUSTRY REDUNDANCY FUND LTD (ACN 009 404 273)

Practice and procedure - Application to have matters listed and tried at same time - Turns on its own facts

Cameron v McBain [1948] VicLawRp 41; [1948] VLR 245

Hamersley Iron Pty Ltd v Lovell (1998) 19 WAR 316

Harman v Home Office [1983] 1 AC 280

Hudson v Wiseman [1986] WAR 156

Meadow Gem Pty Ltd v ANZ Executors and Trustees, unreported; SCt of VIC (Hedigan J); Library No BC9503311; 8 May 1995

Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45; (1981) 147 CLR 589

Property Marine Insurance Co Ltd (In Liq) v Fitzgerald, unreported; SCt of NSW Equity Division (Master McLaughlin); Library No BC9500095; 28 September 1995

Riebolge v Hynd Andary Pty Ltd, unreported; SCt of SA (Olsson J); Library No BC9400686; 22 April 1994

Sakar v Creative Land Management Pty Ltd [2000] WASC 44

Spargos Mining NL v Fuller [1998] WASC 361

1 MASTER SANDERSON: In each of these actions the application which is made (by the fifth and sixth defendants in proceedings 1172 and the third and fourth defendants in 1722) is to the effect that the actions be listed and tried at the same time by the same trial Judge and certain other orders. I am not satisfied that in this case I ought make the order that the trials be heard together or that they be heard at the same time.

2 During the course of proceedings, counsel for the respective parties have proposed alternatives to the orders sought but I think that insofar as the application is concerned, it is proper for the present to concentrate on the first order sought in the chamber summons and that is that the actions be listed and tried by the same trial Judge.

3 Insofar as the principles upon which an application such as this is to be determined, all parties I think accepted that the principles set out by Thomas J in Bellview Investments Pty Ltd v Deans Investments Pty Ltd, unreported; SCt of NT; 18 December 1997, were applicable.

4 It is true that in relation to his Honour's decision, he was dealing with an application to consolidate. Nonetheless, it seems to me that the principles set out therein are a useful guide in an application such as the present.

5 I do not intend to go through the facts of the respective actions in any detail. What I can say, however, is that the facts or the matters raised in action 1172 are of some complexity. They involve a number of the same parties who are parties to 1722 but only to an extent. In 1172 the second plaintiff, the fifth defendant and the sixth defendant are involved and they are also involved in 1722, so there are three parties who are common to both actions.

6 It is also the case that both actions concern a number of units in the town of Newman and there is little doubt that valuation evidence in respect of those units will be necessary in both actions.

7 Mr Metaxas made the point during the course of his submissions that valuation evidence is rarely, if ever, contentious. From this distance it is not possible to draw any conclusions about whether or not valuation evidence in this case may be contentious, but there is nothing in the papers before me that suggests that it will be contentious and there is nothing to suggest that there may be inconsistent findings in relation to valuation as between the two actions.

8 Action 1722 is relatively simple. The plaintiff seeks to recover from the first defendant pursuant to a guarantee. The action against the second defendant is for negligent valuation and the action against the third defendant is for misleading and deceptive conduct. The allegations against the fourth defendant are closely aligned with the allegations against the third defendant.

9 There is a counterclaim brought by the first defendant which seeks, in effect, to set aside the guarantee. That is very much a truncated version of the facts of the case but it is sufficient, I think, to indicate that 1722 is a relatively simple action. It is difficult to see that the evidence in that action will be all that extensive. It is also to be borne in mind that the plaintiff has lent over $1,000,000 in relation to the Newman units and it is seeking to recover that money.

10 The action in 1172 as between, the second plaintiff, and the fifth and sixth defendants is far more complicated. It too is an action based on misleading and deceptive conduct but it relates to conduct which is not identical to the conduct which is the subject of the plaintiff's action in 1722. They are interrelated; there is no question about that, but there are two separate complaints about the conduct of Countrywide. I think that the real problem with having these two actions heard together is that the plaintiff in 1722 runs the risk of being drawn into a lengthy complicated litigation where its claim is relatively simply and straightforward.

11 It is not entirely clear who would bear the costs were the plaintiff in 1722 to be successful, if it was required to spend far more time in Court because of its involvement in 1172 than would otherwise be the case. I think that is a factor which is very much against ordering the orders as sought.

12 There are, however, two areas which have caused me some concern. The first is the possibility of inconsistent findings within the two proceedings. Putting to one side the valuation evidence which I have already discussed, the findings really would have to be in relation to credit, particularly of the second plaintiff in 1172, the first defendant in 1722, the sixth defendant in 1172 and the fourth defendant in 1722. Although I appreciate the risks associated with that, it seems to me on balance, and I would accept it is a fine balance, that it does not outweigh the disadvantages of having the two actions heard together.

13 The other matter of concern is this question of discovery. Counsel for the parties in both actions are concerned that implied undertakings as to discovery in one action would prevent proper discovery being given in the other. I think in the circumstances that can be overcome by the appropriate application made to the Court.

14 I cannot imagine in a case such as this that there are any compelling reasons why the undertakings could not be relaxed. I am not making any findings in relation to that question nor even foreshadowing the outcome of any application but, as I read the papers, based upon the pleadings and given the evidence that has been filed to date, I think the problem might be more apparent than real. Once again, on balance I am not satisfied that the difficulties occasioned by discovery and the implied undertakings with respect to discovery are sufficient to order the two actions be heard together.

15 Finally, and perhaps most importantly, I think that there is a real risk that if these two actions are heard together it will become a very complicated trial running for an indeterminate period of time. It is always difficult from this distance to estimate what the length of trial might be. However, in 1722 it does seem to me that the estimate made by Mr Metaxas during the course of his submissions of 3 days is about right. I find it difficult to see that action could run much longer.

16 In relation to 1172 the position is far less clear. The estimates have varied from 7 days to 20 days. What I can say about that action is that it involved certain allegations made by the second plaintiff against the first defendant which are of such a nature as to be likely to give rise to significant cross-examination. How long that might take I could not possibly estimate, but I would not be surprised if the trial was lengthy.

17 Putting the two trials together, I think, has the potential to lead to a long trial, perhaps 15 days or more, and to involve the plaintiff in 1722 to an extent which is in all the circumstances unreasonable, and I think is a strong factor against ordering the two actions to be tried together.

18 In summary then, I am not satisfied, taking into account all of the criteria that Thomas J referred to in his decision, that this is an appropriate case where I should order that both actions be tried together.