Rules of the Supreme Court, O 1 r 4A, O1 r 4B, O 29

1 HASLUCK J: This is an application by the defendants. For ease of reference I will henceforth describe the parties as the Williams family and the Graingers. The dispute between these parties is reflected in a number of current proceedings.

2 The application made by the Williams family is for orders that (1) the defendants have leave to bring this summons for directions; (2) the trial in CIV 2339 of 2002 be heard immediately after the trial in CIV 2156 of 2000 and be heard by the same judge of the court; (3) the evidence led in CIV 2156 of 2000 be evidence in CIV 2339 of 2002; (4) the costs of the application be in the cause.

3 The application made by the Williams family is supported by the affidavit of Louella Morgan McFarlane sworn 24 October 2002. The Williams family by counsel have also filed an outline of submissions dated 24 October 2002.

4 It is immediately apparent from those dates that the application comes before me on Friday, 25 October 2002 at short notice, hence the application for an order in par 1 that the defendants have leave to bring this summons for directions.

5 At the commencement of the hearing I asked Mr Clay, as counsel for the Graingers, whether there was any objection to the shortness of time in which these matters had been brought forward and whether there was any need on his side to file an answering affidavit. I understood from his reply that he was content for the matter to be dealt with on the materials I have described. He was aware I have had two previous involvements with these proceedings and have some understanding of what has been a very protracted dispute between the Williams family and the Graingers.

6 In referring to my two previous associations with the dispute perhaps I should say, more particularly, as these are now matters of record, that I provided written reasons for judgment on 21 March 2002 in respect of an application to consolidate which can now be described as Williams v Grainger [2002] WASC 46. I also delivered an extempore judgment in CIV 1171 of 2000 on 22 August 2002. It is my understanding that both counsel before me this afternoon have a typed copy of the judgment delivered on that occasion.

7 The affidavit of Ms McFarlane sworn 24 October 2002 has been of use in acquainting me with recent developments in the various sets of litigation.

8 Both parties seem to accept that there is a degree of urgency with respect to the matter before me. The need for expedition arises in this way. The action 2339 of 2002 has been remitted from the District Court to the Supreme Court in comparatively recent times. There is an outstanding issue concerning that action as to whether an assessment of damages, which is referable to a summary judgment previously obtained, should be listed for hearing.

9 It seems that steps have been taken by counsel for the Graingers to have the assessment of damages listed for hearing. My understanding is that the dates 6 to 8 November 2002 are available, if a direction be made by myself or some other member of the Court that the matter be listed for hearing on that occasion. Those dates are rapidly approaching. This gives rise to a degree of urgency in dealing with the present application by the Williams family to defer the assessment.

10 The application for directions is made pursuant to various powers in the Rules of the Supreme Court concerning case management. I will not traverse the Rules bearing upon that subject in their entirety, but I note in passing that some of the points of reference are as follows.

11 Order 1 rule 4A refers to the elimination of delays. It is said:

"The practice procedure and interlocutory processes of the Court shall have as their goal the elimination of any lapse of time from the date of initiation of proceedings to their final determination beyond that reasonably required for interlocutory activities essential to the fair and just determination of the issues bona fide in contention between the parties in the preparation of the case for trial."

12 One finds in O 1 r 4B reference to a system of case flow management and the credo clearly is that cases should be managed with the objects of promoting the just determination of litigation, disposing effectively of the business of the Court, maximising the efficient use of available judicial and administrative resources, and facilitating the timely disposal of business at a cost affordable by the parties.

13 Order 29 contains powers bearing upon case flow management and provision is made for a Court to give directions which will lead to the timely disposal of proceedings.

14 One finds in Seaman on Civil Procedure some discussion about the notion of case flow management. It emerges in various parts of the discussion that the Rules of the Supreme Court and the powers allowed to the Court should now be viewed within the framework of that system.

15 Thus, as I understand it, counsel for the Williams family seeks to persuade me that directions of the kind proposed will be consistent with the objectives I have described.

16 I must now go to the particularity of the matter before me. I do not intend to traverse the full history of the matter as that has been described in my earlier reasons for judgment. These are matters of record. However, for the sake of providing a coherent picture of what is before the Court in respect of the present application, it will be useful to try and draw together the main features of the narrative.

17 It is common ground before me that the origin of the dispute giving rise to the various proceedings lies in the events leading up to a number of transactions which were consummated in May 1998. It seems the Williams family had in mind to expand their farming operations by obtaining a stake in a property known as Kempsey Park. It is alleged that Mr Grainger made various representations which played a part in encouraging the Williams family to enter into the relevant transaction.

18 I note in passing that, as a later event in the situation, the Williams family were assisted in entering into the transaction with finance obtained from financiers associated with the company Wesfarmers. For ease of reference, I will simply refer to these parties as Wesfarmers.

19 The Williams family took possession of the land in question pursuant to some lease arrangements. Eventually a dispute developed between the parties. It is that dispute concerning the effect of the relevant negotiations and related written instruments which has led to various proceedings being commenced between the interested parties.

20 In January 1999 the Graingers issued a writ of summons out of the District Court against the Williams family seeking an order for possession of the land known as Kempsey Park and damages for breaches of the agreements entered into between the parties. The statement of claim asserted that the leases in question were to be determined on 18 December 1998 if the purchase of Lot 1658 was not settled by that date.

21 The Graingers proceeded to apply for and obtained summary judgment in the District Court. The consequence of that was that they were able to obtain possession of the farming lands and to resell the same, but that left outstanding the question of their claim for damages.

22 In the course of argument, counsel for the Graingers drew attention to a schedule of damages and some accompanying particulars which reflect the nature of the claim advanced. The claim for damages is based upon an alleged trespass in respect of the farming lands in question.

23 The statement of claim in the District Court action contains an assertion in par 9 that after termination of the lease of KL1659 on 18 December 1998 and after demand made and notice in writing given on 3 December 1998, 23 December 1998 and 8 January 1999 the Williams family wilfully held over KL1659 and kept the Graingers out of possession for the period from 19 December 1999 to the date of issue of the writ of summons.

24 That aspect of the matter is reflected in the Graingers' amended schedule of damages where one finds a claim for $176,492, being damages for wilful holding over at double value on Kent location 1659.

25 I pause there to say that one of the assertions made by the Williams family in the course of the dispute is that, during the time in which the Williams remained in possession of the property, they continued to make payments to the Graingers of amounts equal to the rent under the leases. The total amount paid for the period is said to be $81,543. Thus, it is said, the Graingers were in receipt of income in respect of the properties, notwithstanding that the claim for damages in the District Court action was left on foot.

26 The Williams family proceeded in due course to commence proceedings in the Supreme Court complaining of certain misrepresentations allegedly made by the Graingers. That action became Supreme Court action 1171 of 2000. In the meantime, as I have noted in the previous judgments, the financiers involved in the transactions (the party I have called Wesfarmers) had in turn commenced claims against the Williams family seeking relief in respect of advances made to the Williams family as borrowers. That action became Supreme Court action CIV 2156 of 2000.

27 It seems that there was a considerable passage of time involved in formulating the claims which the Williams family now seek to bring before this Court. Various attempts were made at framing the appropriate pleading. In overview, however, a stage was reached eventually in which an application was made for the consolidation of the three sets of proceedings; that is to say, the action in the District Court and the two Supreme Court actions.

28 The application for consolidation failed. However, as a consequence of discussion in the course of that matter, the possibility was adverted to of the District Court action being remitted to the Supreme Court. An application to that effect became the subject of my ruling on 22 August 2002. The consequence of the ruling was that the District Court action was remitted to the Supreme Court and is now CIV 2339 of 2002; that is to say, the action in which the present application for directions is advanced.

29 It follows from what I said earlier that it is also in respect of that action, CIV 2339 of 2002, that the Graingers have applied for the assessment of damages to be listed for hearing. The dates they are pressing for are the dates I mentioned earlier of 6 to 8 November 2002.

30 It was against the background of this rather confused procedural picture that by letter dated 24 September 2002 O'Connor Partners, as solicitors for the Williams family, wrote to the solicitors for the Graingers proposing an overarching course of action whereby the various matters could be drawn together in the most efficient way.

31 The main features of the proposal were that the proceedings in CIV 1171 of 2000 be stayed pending the final outcome of CIV 2156 of 2000. It was contemplated that there would be a substantial amendment to the pleadings in CIV 2156 of 2000 so as to draw together various matters in issue. It was proposed also that the action remitted from the District Court, now action CIV 2339 of 2002, be listed to be heard immediately after the trial in CIV 2156 of 2000 and by the same Judge.

32 In other words, the plan of action proposed was that various matters in issue (ultimately to be reflected in the broadly based pleadings in 2156 of 2000) would be placed before the Court, and the assessment of damages in the remitted action would be stood over. This was said to be a means of efficiently disposing of all matters in issue.

33 The proposed course of action was not acceptable to the Graingers. I should not be thought to be criticising the Graingers in making that observation. They were entitled, and remain entitled, to press for the assessment of damages in respect of the summary judgment they had obtained. They are entitled to avoid, if possible, being drawn into a dispute which involves Wesfarmers and in regard to which it might be said, on one view of the matter, that they have no direct involvement.

34 Nonetheless, I have to recognise that, for one reason or another, all the interested parties have become drawn into an extremely complex procedural situation. It follows from what I said in opening in regard to case management that this Court must be alert to the wider ramifications of such a situation, and to endeavour, as far as possible, to find a way through the various complexities. The solution must be cost effective and fair both in terms of the progress of the Court's business and in terms of the litigants' interest in the outcome.

35 I have described the proposal made by O'Connor Partners of 24 September 2002 at some length. That is because it is clear that even though the proposal was rejected, essentially, that is the blueprint which the Williams family by their legal advisers are still endeavouring to put in place. It is against that background, it seems, that programming orders were recently sought from the Master of the Court with a view to trying to achieve what is reflected in the O'Connor letter. In a sense, the application for directions presently before me is referable to the same blueprint.

36 It emerges from the supporting affidavit, that programming orders were made by Master Sanderson in CIV 2156 of 2000 on 23 October 2002, that is to say, 2 days ago, in the following terms:

"(a) the Williams file a substituted defence and counterclaim by 31 October 2002, (b) the Graingers and Wesfarmers parties file defences by 14 November 2002, (c) the Williams file any reply by 19 November 2002, (d) all parties give supplementary discovery by 19 November 2002, (e) the Wesfarmers parties enter the matter for trial by 1 December 2002..."

37 Orders were made also relating to the payment of the hearing fees.

38 It is put to me this afternoon that, as a consequence of the programming orders, it now seems likely that there will be a trial in the relatively near future at which all issues between the parties can be resolved. There ought not be any substantial delay occasioned by the making of the orders sought. The significant feature of the programming orders in that sense is the direction that Wesfarmers enter the matter for trial by 1 December 2002.

39 I noted on an earlier occasion, in the latter of my two reasons for judgment, that having heard argument about this matter on a number of occasions, and having looked at the extensive affidavits on the files, I have come to the view, which I still hold, that the contentions sought to be advanced by the Williams cannot be characterised as vexatious or specious. The usual precept is that a litigant who wishes to bring a claim before the Court pursuant to its civil procedures should generally be afforded that opportunity.

40 Those factors influence my approach to the application which is now before me. If it could be said forcefully that the complexity of the procedural position I have described was in some way referable to a conscious pattern of conduct on the part of a litigant with a view to unnecessarily complicating the matter, then that would affect my approach to the directions now sought.

41 However, it follows from what I said a moment ago that I do not see the complex procedural picture that has emerged as being referable to the fault of any party. It is a reflection of the complexity of the dispute as a whole. Naturally, I make no finding or make no comment upon the merits of the positions being advanced by the respective parties. That lies in the future as a matter to be determined at a trial of the action when the evidence is received.

42 The fact remains, however, that after a considerable period of toing and froing the parties with an interest in the matter have now formulated claims with sufficient particularity for the matter to be listed for trial shortly. That appears to be the view of the Master of the Court also in his making of the programming orders I have described.

43 The matters I have mentioned comprise the general background to the application for directions presently before me. This raises the question of what should be done with the remitted action CIV 2339 of 2002.

44 The stance of counsel for the Williams family, as it is reflected in his submissions, is that there are good reasons why the remitted action should be deferred until the trial of the broader issues in the main action (CIV 2156 of 2000) has been brought to a conclusion.

45 Counsel for the Williams family says it is now apparent from the programming orders that have been made that the main action will come to trial in the comparatively near future and it cannot therefore be said that the Graingers are being unduly delayed by an order of the kind proposed. He rests upon a line of argument that was put before me at the time the remission was argued; namely, that in obtaining possession of the land the Graingers have already obtained a substantial part of the relief they sought.

46 What remains in issue, counsel contends, is a claim of damages which, broadly described, can be regarded as bringing into play the question of what should be the final state of account between the parties, given the existence of claims and cross-claims. Counsel therefore argues that it is better that these matters abide the outcome of the main action in which there is a wider range of issues to be dealt with.

47 The arguments of counsel for the Williams family are supplemented in this way. He submits that there are issues of fact common to both actions which should only be litigated once; that is to say, issues of fact common to the proceedings in 2339 of 2002 and 2156 of 2000.

48 Counsel for the Williams family submits that if orders are not made, issue estoppels are likely to arise in CIV 2339 of 2002 as between the Graingers and the Williams which will not apply to the Wesfarmers parties when CIV 2156 of 2000 comes to be heard, and which have real potential to create difficulties in the hearing of CIV 2156 of 2000. Counsel submits there will be a saving of hearing days and judicial time if the orders sought are made.

49 He says further that unless judgment in both matters is delivered at the same time, the Williams family are exposed to the prejudice of having a judgment against them without having had an opportunity to obtain a judgment against the Graingers and/or Wesfarmers. Counsel reiterates that CIV 2156 of 2000 has now been programmed through to entry for trial and the trial is likely to be listed in the comparatively near future. It must be kept steadily in mind that the Graingers have already obtained most of what they sought in CIV 2339 of 2002 in any event.

50 I pause there to say that nearly all of these contentions were vigorously opposed by counsel for the Graingers. He submitted, as he has submitted on previous occasions, that the supposed factual issues are not truly in common. He questioned the likelihood of any issue estoppel arising. He contested the notion that there will be common issues concerning damages, and he contested forcefully the notion that the Graingers have obtained most of what they sought. He acknowledged that they have obtained possession of the land and have been able to sell it, but he referred to a very sizeable claim for damages which is reflected in the schedule I referred to a moment ago.

51 When I review these competing lines of argument, it strikes me that there is likely to be some overlap between the evidentiary and legal issues in what I have called the main action and in the remitted action 2339 of 2002. Findings will have to be made in order to resolve the issue of damages as to the nature of the land. Findings are likely to be made as to the state of mind of the protagonists.

52 I have drawn attention to the claim for damages based on the nature of a wilful holding over and it seems to me that an issue of this kind will require some investigation in the assessment of damages as to what was in the mind of the Williams family. This is likely to bring into play the question of whether they considered they had a basis for relief, and for remaining on the disputed land, having regard to the misrepresentations of which they now complain.

53 I emphasise that in the absence of evidence upon all these matters of detail it is very difficult to predicate to what extent there may be an overlap, if any. However, doing the best I can with the materials before me, it does seem that there is likely to be an overlap of the kind I have described.

54 A different question arises as to whether findings upon such matters (if the assessment of damages proceeded first) would give rise to an issue estoppel, or a res judicata in the true sense, that might complicate the making of findings in the main action. However, generally, and apart from matters of estoppel and res judicata, the Court should guard against the possibility of inconsistent findings being made. That consideration bears upon my approach to the directions sought before me today.

55 The Williams family say that the claims for damages arising from the transactions they entered into with the Graingers will include a claim for wasted expenditure as a result of entry into the transactions, including the rent paid to the Graingers under the leases and the amounts of money paid to the Graingers during the period of occupation of the properties. Alternatively, a claim will be made for the difference between the rent actually paid and the true market rent of the leaseholds had the true facts the subject of the representations been made, and for money expended on the properties during the period of occupation.

56 There will also be a claim for an indemnity in respect of any other liability to the Graingers arising from the occupation of the farming lands, the value of labour expended by the Williams family managing and working the properties during the period of occupation, interest and fees charged to the Williams by Wesfarmers.

57 It emerges from this review that there is a real prospect of some overlap of evidentiary issues and the complexity of the factual issues bearing upon such matters is likely to be considerable.

58 As I draw these matters together, I see force in contentions made by counsel for the Williams family as I summarised them a moment ago. I recognise the possibility of some overlap of evidentiary issues and I am conscious of the possibility of inconsistent findings. I take account of the submission made on behalf of the Williams family that the Graingers have obtained possession of the property in question and that the property has been sold. Thus, the question of what damages the Graingers might ultimately have obtained, although undoubtedly important in one sense, can be regarded as ancillary to the primary relief that they have already obtained. I take account of the fact that the delay, if an order sought is made, is not likely to be substantial having regard to the programming orders I have referred to.

59 I take account also of the considerations I mentioned in opening; namely, the principles of case management. It seems to me that in a case of this kind, where the issues to be dealt with in 2156 of 2000 as the main action, are wide-ranging and extensive, there is some advantage in that matter being dealt with first.

60 I am not necessarily persuaded that a direction should properly be made at this stage that the evidence led in CIV 2156 of 2000 be evidence in CIV 2339 of 2002 as proposed. That part of the application I intend to put to one side. I do so because I am conscious that the pleadings in 2156 of 2000 have not finally been determined and therefore one cannot make a final estimation as to what the framework within which the evidence is to be received will be.

61 Nonetheless, for all the reasons I have drawn together, I do consider that there is a proper basis, consistently with case management principles, for making an order in the terms sought in par 2, that the trial in CIV 2339 of 2002 be heard immediately after the trial in CIV 2156 if 2000 and be heard by the same Judge of the Court.

62 It seems to me that such an approach will lead to greater efficiency in the disposal of the matters in issue and that this efficiency may be of benefit to the parties. It is likely to be of benefit to the Court in terms of the saving of judicial time.

63 I am not yet fully resolved as to whether a direction of the kind sought in par 3 is the appropriate avenue to consummate the savings that I have described, or whether such savings are better effected by a renewed application for consolidation or some other process. That matter will have to be dealt with if and when it is brought forward. However, for the reasons I have given I will make orders in terms of par 1 and par 2 of the summons before me.

64 Consistently with this ruling, it follows that I am not prepared to make a direction that CIV 2339 of 2002 be listed on the dates available in November; namely, 6 to 8 November 2002. I will hear from the parties as to costs.