FOX & ORS v OLSEN, ORS & THE STATE OF STH AUST No. SCGRG-86-2562, SCGRG-86-2561, SCGRG-86-2557, SCGRG-86-2556 Judgment No. S411 [1999] SASC 411

2 MULLIGHAN J The five applicants sought leave to appeal against an order of a Judge made on 2nd September 1999 that the trial of their separate actions in this Court against the respondents, and the trial of other actions, be heard together commencing on 7th February 2000. In consequence of this order, six actions are to be tried together, those of the applicants Fox, Smith, Ey, Edwards and also the actions brought by Mr Hopcroft and Mr Murphy. In these calculations I have regarded the applicant Edwards and the applicant Deep Sea Ark (Australia) Pty Ltd, of which he is a director and sole beneficial share holder, as the one party.

3 We heard argument on behalf of the applicants and refused the application for leave to appeal, indicating that we would give our reasons later. I now do so.

4 The respondents are the State of South Australia and former officers of, what is now known as, the Fisheries Department of this State. Each applicant has brought an action against the respondents for damages, exemplary damages and certain declarations. It is unnecessary for present purposes to set out the various causes of action. It is sufficient to say that the actions are based in tort and arise out of the management of various fisheries in the State. The applicants were involved in the fisheries. The actions are complex both in fact and law and the subject matter spans a long period of time during the late 1970's and the early 1980's. All of the actions were commenced on 22nd August 1986.

5 Similar actions have been brought by eight other plaintiffs against the respondents or, I assume, most of them. Not all of the pleadings in their actions are before us on this application. However, it may be accepted for present purposes that the nature of the proceedings in all of the actions is the same or similar. These other actions were commenced in 1986 or 1987.

6 The learned Judge is to be the trial Judge in each action and also has the pre-trial management of them.

7 The respondents have provided estimates of the likely hearing time for each action if they are tried separately. In the cases of the applicants, the total hearing time is estimated to be 43 weeks. The respondents proposed to the learned Judge that he should hear those cases together along with the actions commenced by Hopcroft and Murphy. Should that occur, they estimated that the total hearing time would be about seven months. If all of these actions were heard separately, it is estimated that the total hearing time would be 70 weeks or about 17 months.

8 It is not disputed that there are issues of fact and law common to each action. The actions brought by Edwards, Hopcroft and Murphy raise additional issues. Also, all but one of the personal respondents would be likely to give evidence in the trial of each action. Another respondent is likely to give evidence in the trial of all of the actions except one. The evidence of those respondents will relate to issues of liability and quantum. As has been seen, there has been substantial delay in commencing the various actions and in progressing them to trial. One of the respondents will be aged 82 years at the time of the trial. The learned Judge was informed that it is preferable that he give evidence on as few occasions as possible.

9 The respondents propose to call an expert witness who lives in Canada. His evidence is said to be relevant to matters in issue in all actions. Also, the respondents propose to call a number of witnesses from interstate and one from overseas to give evidence as to matters in issue as to both liability and damages in most of the actions. The respondents made an application to the learned Judge for an order that the six actions be heard together. The application was opposed by the applicants and Hopcroft and Murphy. The matter was argued at length before the learned Judge. The appellants Ey, Fox and Smith and another plaintiff, Mr Cawthorne, were not represented by counsel. The learned Judge made the order sought and gave his reasons ex tempore.

10 The learned Judge knew a good deal about the various actions before hearing the argument because he had been managing the pre-trial procedures for a considerable period of time. He was informed that the various plaintiffs, including the applicants, opposed the application and proposed that the action by Hopcroft be tried first and that Hopcroft was ready to proceed on 9th February 2000. He was also informed that it was likely that upon that action being determined, the other actions would be resolved in the same way although there was no suggestion that res judicata would arise. However, it is significant that none of the appellants or other plaintiffs would assure the learned Judge that they would agree to be bound by the decision in the action brought by Hopcroft if it was heard and determined first. Absent such assurances given in a manner binding upon the applicants and the other plaintiffs, the learned Judge was faced with the possibility that he may have to hear the same evidence and decide the same issues over and over again as each action was tried separately.

11 Furthermore, it was acknowledged by the parties that there would be a sizeable rump of evidence in the defence case which would be common to each action. If the actions were to be tried separately, that evidence would also have to be heard over and over again unless the parties agreed to be bound by the decisions about that evidence in any particular case.

12 In his reasons for decision, the learned Judge said that because of his pre-trial management of the actions, he was aware of many of the issues. He noted that Mr Tilmouth QC, who appeared for Edwards, had told him that he did not think his clients would be ready for trial. He said the actions were exceptional in that they had gone on for too long and that assurances of readiness for trial would probably never be given. For these reasons he adopted the course of fixing the date for the commencement of the trial without assurances of readiness, but as can be seen, he allowed about eight months for the parties to get ready for trial. He took the view that if he did not fix a date for trial, the parties would never be ready for trial. I must say, with respect, that in the circumstances that approach was eminently sensible.

13 The learned Judge went on to reject a submission that there should be a trial of particular issues. He said that the parties had not been able to agree on the issues to be tried separately and common experience is that this course causes more problems than it solves.

14 The learned Judge rejected the submissions that the trials be conducted separately. He relied to a significant extent upon the commonality of evidence and witnesses. He went on to say that in one sense the appellants and other plaintiffs, by being so slow in progressing the action to trial, had "to a large extent eroded their ability successfully to argue that the Court should deal with them separately". It seems that in making this observation, the learned Judge was expressing the view that the delay required some actions to be heard together for expedience otherwise the Court would countenance substantial further delay.

15 Then the learned Judge expressed his reasons for allowing the application as follows:

"At the end of the day I think that the over-riding factors to which attention should be paid are, in the first place, to allow the defendants to present their cases in a way which will avoid the need for the elderly parties and witnesses to have to be called more than once; the need to avoid possibly conflicting findings of credit; and the need to dispose of these actions before much further time passes.

I realise that there will be increased costs to the parties in having counsel present at a joint trial as opposed to discrete trials of the various actions, but that is one of the penalties they may have to face up to for having been so slow in getting on with bringing the matters on for trial.

The orderly disposal of the actions and the most economic means of disposing of all of them will be to bring them on together, that is to say, the six actions which it is suggested by the Crown ought to be listed together.

While there is no guarantee that any decision, even if the six are brought to trial together, will be regarded by the remaining eight plaintiff's in the other eight actions as determinative of their cases, I think that the possibility that the trial will in fact operate to define the rights of the parties in all of the actions will be enhanced if these six matters are brought on for trial together.

Of course, there will be problems of case management at the trial stage and I readily perceive that the trial will be difficult to conduct with the six actions proceeding in tandem. But it was always going to be a difficult trial, whether it was one action or a number of actions. I think that with a proper attitude from counsel, and the assembly of properly and carefully prepared books of documents, there is no reason why the actions cannot be proceeded with at the trial stage in a convenient, orderly and expeditious way."

16 The proposed grounds of appeal raise various complaints. The first is that the learned Judge did not give adequate reasons for his decisions to hear the six actions together. In my view, there is no substance in this complaint. The learned Judge gave reasons ex tempore and they were adequate and correct. He was faced with a difficult problem in how to hear those actions with due expedition, expediency and effectiveness. His solution may result in difficulties as he acknowledged, but they are capable of being resolved and are not as significant as the problems caused by hearing the actions sequentially with the repetition of evidence and the lack of assurance that the parties would be bound by the decisions.

17 The second proposed ground of appeal is that the learned Judge erred in the exercise of his discretion not to order separate trials of liability and quantum. In my view, there is no basis for valid criticisms of the refusal by the Judge to separate these issues at this stage. There may be circumstances in which separation of those issues may assist in the just and economical resolution of an action. Usually, however, common sense dictates that these issues should be tried together because witnesses will be common to both. If the issues are separated, there is the danger of inconsistent findings about witnesses and their evidence. Findings may be made with respect to the first issue tried which becomes questionable when other evidence is given when the second issue is tried. Also, the consideration which the learned Judge gave to delay and the age of witnesses militates against separation of those issues at this stage.

18 The next proposed ground of appeal is that the learned Judge erred in law and wrongfully exercised his discretion in failing to order that one case be regarded as a test case. Upon the hearing of the application for leave to appeal, this ground was modified. The proposition became that there is a common practice to expedite the action that is ready for trial in the hope and expectation that the decision on liability will be accepted in other actions. Reference was made to Amos v Chadwick (1877) 4 ChD 869. In that case it was ordered, upon the application of the plaintiffs, that two actions be tried first as test actions and, in effect, that the actions of 76 other plaintiffs not proceed until the completion of those actions. That order was made upon the footing that the other plaintiffs undertook to abide the result of the test actions. The purpose of the order was to prevent the defendants being overwhelmed by successive actions: at 872. The basis of the order was that if the test actions failed, the other plaintiffs could not succeed. If either of the initial plaintiffs succeeded, the defendants were at liberty to defend the other actions. I do not think the approach in that case assists the applicants. In the present case, the basis of a test case was absent, namely an undertaking to abide the decision. The fourth proposed ground covers much the same complaint.

19 It is contended that the learned Judge erred in law and wrongfully exercised his discretion in ordering that the six actions be tried together by failing to have any sufficient regard to the principle that actions ought not to be consolidated where different solicitors have been instructed by different plaintiffs unless all plaintiffs agree to one firm of solicitors acting on their behalf: see Lewis & Anor v Daily Telegraph Ltd (No 2) [1964] 2 QB 601. In that case the Court of Appeal acknowledged the rule that if plaintiffs agree to become co-plaintiffs, they must act together and they may not be separately represented. However, it was also accepted that there could be separate representation: see Pearson LJ at 620. Difficulties in such a situation were acknowledged and discussed: at 621. The basis of the usual rule is fairness to the defendant: see Russell LJ at 623. However, it is clear that there can be no hard and fast rule. The usual requirement of common representation may be dispensed with in the appropriate case: Riebolge and Anor v Hynd Andary Pty Ltd & Anor: Hambros Australia Limited & Ors v Hynd & Ors (1994) 176 LSJS 172 is an example. It is not without significance that in the present case the defendants sought the order that the actions be tried together. It seems that they do not perceive any prejudice to them. Obviously the learned Judge will have to establish, by directions, suitable procedures for conducting the trial. Questions of representation may have to be resolved depending upon how the plaintiffs propose to conduct the case. However, in cases such as the present which are complex and will involve a lengthy trial, the mere fact of different legal representation at the pre-trial stage, and even at trial, does not have the consequence that the discretion to order a joint trial miscarried.

20 The next proposed ground of appeal is that the learned Judge erred in the decision to order a joint trial because different actions cannot be consolidated if they could not initially have been joined in a single proceeding. Whatever may have been the position before the coming into operation of the Supreme Court Rules 1987, the present position is governed by R73.01 which provides that "[p]roceedings may be consolidated, ordered to be heard together, or to be heard immediately following one another as the justice of the case may require". In my view, there is no substance in this ground.

21 The next proposed ground of appeal is that the learned Judge erred in considering that the delay in bringing the actions to trial affected the ability of the applicants to successfully argue that the Court should hear their actions separately. In my view, this ground of appeal seeks to make too much of the observation made by the learned Judge. It seems clear that he made this observation in the context of the need to expedite the hearings of all of the actions. They could not be allowed to drift on, and any plaintiff who was guilty of inordinate delay could not be heard to complain about a decision to expedite the trial of the actions provided the discretion was exercised correctly.

22 The eighth proposed ground of appeal is that the learned Judge erred in law in that he failed to have any sufficient regard to the principle that the main purpose of a joint hearing is to save costs and time. The proposition upon which this proposed ground is based may be questioned. The saving of costs and time is a relevant matter. The efficient use of judicial resources is another. The desirability of resolving common issues of law and fact in the one trial so as to avoid inconsistent decisions in separate trials, perhaps by different judges, is another. The desirability of binding the parties to decisions of fact and law is another. It seems clear that the learned Judge had regard to all of these matters. I think it is very likely that the learned Judge was influenced by another matter although he did not expressly say so. If each action was heard separately, even by him, the parties in each action could appeal with the likely result of multiple appeals causing interminable delay.

23 The ninth proposed ground of appeal is that the learned Judge erred in giving undue weight to expediting the trial of the action. Clearly he was concerned about the delay in prosecuting the actions and the desirability of bringing all actions to conclusions as soon as possible. That was not the sole basis of his decision. There is no reason to suppose that he gave undue weight to this important matter.

24 The tenth proposed ground of appeal is that the learned Judge erred in finding that counsel would never be in a position to give assurances as to readiness for trial or a certificate to that effect. The pre-trial progress has been very slow. Mr Tilmouth claimed that his clients' case was not ready. Other cases were apparently ready or would be ready by the date fixed for trial. Nevertheless, despite the long delays in the proceedings, at the time of hearing the application some of the actions were not ready for trial. The learned Judge decided to fix a date for trial. Such a course was most likely to result in readiness for trial by that date. There was no error on the part of the learned Judge. Often readiness for trial in long and complex cases is best achieved by the Court fixing a trial date allowing a reasonable time for preparation.

25 The eleventh proposed ground is that the learned Judge erred in law in that he overlooked the prejudice to the applicants caused by listing the six actions to be tried together. The twelfth proposed ground of appeal raises a similar matter, namely that the learned Judge failed to have sufficient regard to the implication in costs for each of the applicants and the other plaintiffs whose actions had been listed together. There is no basis for the contention underlying these proposed grounds. A joint trial may well result in considerable savings in costs to the applicants and the other plaintiffs depending upon how they choose to conduct the litigation. The pooling of resources and the sharing of counsel upon particular issues is likely to have that effect. It is likely that the applicants and other plaintiffs would not have to be involved when aspects of the cases of others not of concern to them are being pursued. Appropriate directions by the trial Judge, made after co-operation of counsel and parties, are likely to produce substantial savings in costs to all parties. I reject the submissions to the contrary. Whilst it is true that the learned Judge did express the view that there may be an increase in costs for the applicants and the other plaintiffs. I think he was unduly pessimistic in that regard. As he went on to say the hearing of the actions together is the most economic means of disposing of them.

26 The thirteenth proposed ground of appeal is that the learned Judge erred in inferring that the overriding factors in considering whether to order a joint trial include the saving of court resources and the convenience to witnesses, whereas his primary consideration should have been fairness to the applicants and the other plaintiffs and the cost to them of the joint hearing. It is unnecessary to say anything further about costs. The relevant passage of the reasons for decision of the learned Judge has been mentioned. Considering all of his reasons in context, there can be no basis for saying that the learned Judge put the use of the resources of the Court and the interests of witnesses above the financial interests of the applicants and the other plaintiffs. The most economic use of the resources of the Court is a factor to be considered. The learned Judge did not suggest that it is a dominant or overriding factor. He did give emphasis to the need to avoid repetitious evidence from elderly witnesses but not as the dominant matter.

27 The fourteenth proposed ground is that the learned Judge erred in concluding that the orderly disposal of the six actions and the most economic reasons of disposing of them was to list them to be heard together. To a large extent the matter raised by this proposed ground has already been addressed. In my view, the learned Judge was correct in his decision and it is very likely that a consequence will be substantial economies to all parties in time and expense.

28 The fifteenth proposed ground of appeal is that the learned Judge erred in that he failed to have sufficient regard to what "the justice of the case may require" pursuant to R73. This contention may be immediately rejected. The learned Judge was plainly concerned with the justice of the cases. He was concerned to promote the orderly, efficient and economical resolution of the actions avoiding duplication and undue delay.

29 The last of the proposed grounds of appeal is that the learned Judge erred in inferring that counsel would need to hear the evidence of each plaintiff on quantum of damages because it might affect the credibility of a particular plaintiff. It is claimed that the proper inference is that counsel for the applicants would not need to hear the evidence of each plaintiff on that issue. I am unable to detect a basis for this proposed ground of appeal in the reasons for decisions of the learned Judge. Even if some observation was made along those lines by the learned Judge during the course of argument, it was not a basis for his decision and consequently there is no need to consider it.

30 In my view, all of the proposed grounds of appeal must fail and the proposed appeal could not succeed. Consequently leave was refused. I do not make any criticisms of the legal advisers of the applicants, but I think it may be said that many of the complaints about the decision of the learned Judge are premature. He is yet to decide how to conduct this complex litigation. No doubt he will seek assistance by submissions of counsel and then give suitable directions before the trial commences and perhaps during the trial. There is no reason to suppose that the joint trial cannot be conducted efficiently and effectively with the co-operation of all parties.