Humphries v Newport Quays Stage 2A Pty Ltd

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. The text of entered orders can be located using eSearch on the Court's website.

AND: NEWPORT QUAYS STAGE 2A PTY LTD ACN 117 374 222

1. The application by the applicant for the orders sought as set out in the document which is tab 2 to the agreed book of documents be refused.
2. The applicant pay the costs of the respondents who appeared on the application and opposed it, being the first and second respondents.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. The text of entered orders can be located using eSearch on the Court's website.

AND: NEWPORT QUAYS STAGE 2A PTY LTD ACN 117 374 222

1. The application by the applicants for the orders sought as set out in the document which is tab 2 to the agreed book of documents be refused.
2. The applicants pay the costs of the respondents who appeared on the application and opposed it, being the first, second and third respondents.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. The text of entered orders can be located using eSearch on the Court's website.

AND: NEWPORT QUAYS STAGE 2A PTY LTD ACN 117 374 222

1. The application by the applicant for the orders sought as set out in the document which is tab 2 to the agreed book of documents be refused.
2. The applicant pay the costs, if any, of the respondents who appeared on the application and opposed it, being the first, second and third respondents.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. The text of entered orders can be located using eSearch on the Court's website.

AND: NEWPORT QUAYS STAGE 2A PTY LTD ACN 117 374 222

1. The application by the applicants for the orders sought as set out in the document which is tab 2 to the agreed book of documents be refused.
2. The applicants pay the costs, if any, of the respondents who appeared on the application and opposed it, being the first, second and third respondents.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. The text of entered orders can be located using eSearch on the Court's website.

AND: NEWPORT QUAYS STAGE 2A PTY LTD ACN 117 374 222

The application by the applicants for the orders sought as set out in the document which is tab 2 to the agreed book of documents be refused. 2. The applicants pay the costs of the respondents who appeared on the application and opposed it, being the first and second respondents.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. The text of entered orders can be located using eSearch on the Court's website. IN THE FEDERAL COURT OF AUSTRALIA

AND: NEWPORT QUAYS STAGE 2A PTY LTD ACN 117 374 222

urban construct project marketing pty ltd acn 095 779 699

AND: NEWPORT QUAYS STAGE 2A PTY LTD ACN 117 374 222

AND: NEWPORT QUAYS STAGE 2A PTY LTD ACN 117 374 222

AND: NEWPORT QUAYS STAGE 2A PTY LTD ACN 117 374 222

AND: NEWPORT QUAYS STAGE 2A PTY LTD ACN 117 374 222

AND: NEWPORT QUAYS STAGE 2A PTY LTD ACN 117 374 222

AND: NEWPORT QUAYS STAGE 2A PTY LTD ACN 117 374 222

AND: NEWPORT QUAYS STAGE 2A PTY LTD ACN 117 374 222

REASONS FOR RULING 1 There are eight proceedings before the Court. The proceedings each raise broadly similar issues. I explain what I mean by this below. 2 All of the applicants in the proceedings are represented by the same solicitors and counsel. The applicant (or applicants) in each proceeding seeks the following orders: "1.1 the related Proceedings (as defined below) be judge-managed by Justice Besanko together with the within Proceedings;

1.2 the trials in the within Proceedings and the related Proceedings be heard at the same time or in another sequence as directed by the Court;

1.3 evidence in each of the actions constituting the Proceedings being the within Proceedings and the related Proceedings be treated as evidence in all other actions unless the trial judge otherwise orders;

1.4 discovery in each of the actions constituting the Proceedings be treated also as discovery in the other actions in the Proceedings unless the Court otherwise orders;

1.5 subpoenae already issued in SAD 155 of 2008 (not being one of the related Proceedings) be treated as having been issued in each of the actions in the Proceedings and the documents returned on those subpoenae be treated as documents produced by subpoena in each of the actions constituting the Proceedings unless the Court otherwise Orders;

1.6 any other subpoenae issued in any of the actions in the Proceedings are to be treated as subpoenae in the other actions constituting the Proceedings;

1.7 within the time fixed by the Court each party nominate the evidence which that party contends should be treated as evidence in more than one of the actions constituting the Proceedings nominating which such action or actions.

'The Proceedings' means the following actions all issued in this Honourable Court: 1. The within action;

SAD 150 of 2008 where the applicant is Manuel Pipinias;

SAD 152 of 2008 where the applicant is Anna Kathryn Humphries;

SAD 154 of 2008 where the applicant is Warwick Prestwood;

SAD 184 of 2008 where the applicants are Mark Stephen James and Catherine Joan James;

SAD 208 of 2008 where the applicant is Randolph Nicholas Bolton Carpenter;

SAD 18 of 2009 where the applicants are Debra Lizabeth Gaz and Gene Lawrence Gaz; and

SAD 37 of 2009 where the applicants are Ludwig Jochmann and Tracy Bottrell.

And the related Proceedings are the actions in numbers 2-8 above." 3 Two of the eight proceedings are in my docket: Peter John Humphries v Newport Quays Stage 2A Pty Ltd, MC Marina South Ltd, Rebecca McFarlane and Urban Construct Project Marketing Pty Ltd (SAD 153 of 2008) and Anna Kathryn Humphries v Newport Quays Stage 2A Pty Ltd and MC Marina South Ltd (SAD 152 of 2008). 4 The other six proceedings are in Lander J's docket (details appear as at date of hearing): Manuel Pipinias v Newport Quays Stage 2A Pty Ltd and MC Marina South Ltd (SAD 150 of 2008); Warwick Prestwood v Newport Quays Stage 2A Pty Ltd and MC Marina South Ltd (SAD 154 of 2008); Mark Stephen James and Catherine Joan James v Newport Quays Stage 2A Pty Ltd and MC Marina South Ltd and Max Barber (SAD 184 of 2008); Randolph Nicholas Bolton Carpenter v Newport Quays Stage 2A Pty Ltd and MC Marina South Ltd and Hubert Gerard Theunens (SAD 208 of 2008); Debra Lizabeth Gaz and Gene Lawrence Gaz v Newport Quays Stage 2A Pty Ltd and MC Marina South Ltd and Hubert Gerard Theunens (SAD 18 of 2009); Ludwig Jochmann and Tracy Bottrell v Newport Quays Stage 2A Pty Ltd and Maxwell Barber (SAD 37 of 2009). Lander J could not hear the matters involving Mr Humphries or his daughter, Ms Anna Kathryn Humphries, and they were referred to me. 5 On 12 June 2009, I made orders refusing the applications. I said that I would publish reasons and these are my reasons.

The orders sought 6 I start by making some general observations about the orders sought by the applicants. The first order is contingent upon the making of the second order. As will be seen, I do not think that the second order should be made. In those circumstances, it is unnecessary for me to consider whether, had I decided to make the second order, I could or should make the first order. 7 The second order is the gravamen of the applicants' application. The applicants referred to s 23 of the Federal Court of Australia Act 1976 (Cth), but the more directly relevant source of power to make the order is O 29 r 5 of the Federal Court Rules. That rule provides as follows: "Where several proceedings are pending in the Court, then, if it appears to the Court: (a) that some common question of law or fact arises in both or all of them; (b) that the rights to relief claimed therein are in respect of, or arise out of, the same transaction or series of transactions; or (c) that for some other reason it is desirable to make an order under this rule; the Court may order those proceedings to be consolidated or may order them to be tried at the same time or one immediately after another or may order them to be stayed until after the determination of any of them." 8 Two observations about the application of this rule to the facts of this case are appropriate at this point. First, I did not understand the respondents to suggest that there are no common questions of fact in the eight proceedings. Plainly, there are common questions of fact. The respondents' submission is that, weighing up the relevant factors, an order that the proceedings be tried at the same time should not be made. Secondly, the applicants have made it clear that they are not applying for an order that the proceedings be consolidated. They apply for an order that the proceedings be tried at the same time or in another sequence, as directed by the Court. The applicants' written and oral submissions made it clear that they are applying for an order that the proceedings be tried at the same time. There was very little said on the alternative set out in the proposed order, namely, that the trials in the proceedings be heard in another sequence, as directed by the Court. For the reasons set out below, I have decided that it is not appropriate to make an order that the proceedings be tried together. It seems to me that there is no sufficient benefit in any alternative order. 9 The fate of the third order depends on whether the second order is made. I would only add that, even if I had decided to make the second order, it may not have been appropriate to make the third order at this stage. 10 The fate of the fourth, fifth, sixth and seventh proposed orders also depends on whether the second order is made. I have decided not to make the second order and therefore I will not make the fourth, fifth, sixth and seventh proposed orders. Whether particular orders about the use in one proceeding of documents discovered or produced on subpoena in another proceeding should be made, can be determined as and when such an issue arises. One order dealing with discovery has already been made by Lander J on 25 March 2009.

The application that the proceedings be tried together

The relevant factors 11 There is no dispute that the eight proceedings engage O 29 r 5(a). The critical question then is whether it is appropriate that the proceedings be tried together. In determining this question, the relevant factors are as follows: 1. Are the proceedings broadly of a similar nature? 2. Are there issues of fact and law common to each proceeding? 3. Will witnesses (lay and expert) in one proceeding be witnesses in one or more of the other proceedings? 4. Has there been an alternative proposal put forward that there be a test case and have the parties agreed to abide the outcome, or, at least, the determination of common issues of fact and law? 5. Is there a prospect of multiple appeals with substantial delays if the proceedings are not tried at the same time? 6. Will there be a substantial saving of time if the proceedings are tried at the same time, compared with each proceeding being tried separately? 7. Will an order that the proceedings be tried at the same time create difficulties in terms of trial management, complexity of procedural issues and difficulties in determining cross-admissibility of evidence? 8. Is one proceeding further advanced in terms of preparation for trial than the others? 9. Are there parties to one or some only of the proceedings who will be inconvenienced if all of the proceedings are tried at the same time?

History of the proceedings 12 On the hearing of the applications, the applicants tendered an affidavit of their solicitor. The affidavit was sworn by Mr Joseph Philip DeRuvo on 3 February 2009. 13 Mr DeRuvo sets out the history of each proceeding. He states that 18 proceedings were instituted in this Court in the latter part of 2008 and the early part of 2009. Each proceeding involves a claim "arising out of the purchase by the applicant(s) (in each action) of premises and sometimes a marina (or lease thereof) at Newport Quays in Port Adelaide, South Australia and certain representations made to the applicant purchaser(s) before the contract or contracts for that purchase". A number of the proceedings have been resolved by agreement. 14 Mr DeRuvo sets out the terms of certain interim or interlocutory injunctions granted by the Court in the proceedings. It is not necessary to set out the details. Mr DeRuvo sets out the directions made in the proceedings. He deposes to the fact that Lander J made orders facilitating the trial of SAD 160 of 2008, and, after that action settled, SAD 155 of 2008. The latter action also settled. Mr DeRuvo summarises the applicants' claims as follows: "The applicants in the Proceedings have executed contracts to purchase properties and/or to purchase or lease marina berths in Stage 2 of the Newport Quays development in Port Adelaide known as 'Marina Cove'. In the Proceedings each of the applicants allege that: They relied on certain representations made by the vendors Newport Quays Stage 2A Pty Ltd and/or MC Marina South Ltd (or MC Marina South Ltd as lessor) in their decision to enter into those contracts ('representations').

The representations constituted misrepresentations, and misleading and deceptive conduct, and the contracts have been rescinded or should be set aside or varied by the court." 15 Mr DeRuvo sets out in his affidavit issues which he asserts are common to all of the proceedings. I will not set out the details in these reasons. The common issues concern evidence relating to newsletters, a scale model, plans, a brochure, a drawing, disclaimers, representations, whether the respondents had reasonable grounds for making certain representations, terms of the contracts and their affirmation, and the development approval history for Stage 3. Mr DeRuvo also refers to evidence which the applicants have obtained from a valuer and a town planner. He states that this expert evidence will be relevant in each proceeding. Mr DeRuvo states that in each proceeding the applicant intends to call a number of applicants in other proceedings as witnesses in his or her trial. Mr DeRuvo states that it had been generally agreed by the parties that the proceeding between Peter John Humphries and Newport Quays Stage 2A Pty Ltd and Others would involve a trial of approximately two weeks, and he states that counsel for the applicants has estimated that the trial of all the proceedings (if tried at the same time) would take approximately three and a half weeks. 16 The respondents handed up, as an aide memoire, a schedule summarising each applicant's allegations as to the representations made to him or her. While a representation about Stage 3 of the development (that is, that it would proceed and when that would take place) is a common theme, there are variations in what was allegedly said on that topic. Furthermore, there are other and different representations alleged in some of the proceedings. For example, some of the applicants allege that there were representations made about the benefits of investing in the development.

Consideration of relevant factors 17 The proceedings are broadly of a similar nature, and there are common issues of fact, and probably law, in the proceedings. At the same time, not all issues are common issues and it is difficult to be precise as to the degree of commonality. Furthermore, some weight must be given to the respondents' submission that a number of common issues such as the facts relating to newsletters, the scale model and the brochure will not be in dispute. 18 It is appropriate to proceed on the basis that there will be witnesses called by the applicants who will be common to each proceeding. The valuer and town planner fall into this category. There was a good deal of debate before me about whether an applicant in one proceeding could give evidence in another applicant's proceeding. Counsel for the respondents referred to the general section in the Evidence Act 1995 (Cth) s 56 (evidence that is relevant is admissible) and s 97 (evidence that a person had, or has, a tendency) and s 98 (evidence making it improbable that events occurred coincidentally). Counsel for the applicants submitted that an applicant would not be called in another applicant's proceeding to prove tendency or improbability of coincidence. He submitted that the evidence of an applicant in another applicant's proceeding would be relevant to the first and second respondent's state of mind. Clearly, it is not for me to rule on this point at this stage. However, on the submissions made to me on the applications, it is not apparent to me how the evidence of an applicant in one proceeding will be relevant and admissible in another applicant's proceeding. 19 I have no information about the witnesses the vendor respondents are likely to call. It is fair to proceed on the basis that there are likely to be some witnesses called by the vendor respondents who will be common to some or all of the proceedings. 20 There are three sets of real estate agents who are respondents. Clearly, their evidence will not be common to all the proceedings. 21 There have been two attempts to have in effect a "lead case" and both have failed because the case selected has settled. There is no agreement between the parties to abide the outcome of a test case, or to be bound by the findings and conclusions with respect to common questions of fact and law. Having said that, I think it is likely that parties in later trials will not contest findings made in earlier trials unless they have further or different evidence not called at the earlier trials. 22 There is the prospect of multiple appeals, even if the proceedings are tried at the same time. However, if the proceedings are tried at the same time, any appeals are likely to be heard at the one time rather than at different times, which may well be the case if the proceedings are heard separately and at different times. 23 There is likely to be a saving of time if the proceedings are tried together, but it is difficult to quantify the extent of the saving. It would be nowhere near the substantial saving referred to in Fox v Olsen [1999] SASC 411 at [7] per Mullighan J (with whom Doyle CJ and Wicks J agreed). It seems to me that 2 weeks is a reasonable estimate for the trial of the proceeding brought by Mr Humphries. It is difficult to be precise about an estimate of trial time if all proceedings are tried at the same time, but, doing the best I can, I proceed on the basis of an estimate of 4-8 weeks. If tried separately, the proceedings involving Mr Humphries would, as I have said, take 2 weeks and the other 7 proceedings would take 1-2 weeks each. There is a real prospect that the parties in those 7 proceedings would not contest a number of findings of fact made in the first proceeding and therefore, if they did proceed, the estimate for each proceeding would be closer to 1 week than to 2 weeks. 24 Trial management issues are likely to loom large if all proceedings are tried together. It would be necessary to put in place detailed and possibly complex procedural orders to ensure the trial proceeded in an orderly fashion. There is considerable potential for time-consuming arguments about the cross-admissibility of evidence. Counsel would need to be alert to the evidence rulings about cross-admissibility. These problems are by no means insurmountable, but they are a reason not to order that the proceedings be tried together. 25 The proceeding involving Mr Humphries is further advanced, in terms of preparation for trial, than any of the other proceedings. 26 There are three sets of agents and each of them will not be interested in evidence which does not concern them. They will be inconvenienced to some extent although, no doubt, they could be given leave to withdraw from the trial while evidence which does not concern them is being given. 27 I have to weigh up these factors and determine where the balance lies. Some of the matters cannot be precisely weighed because they are matters where impression takes the place of precise finding. In the result, although I think there is a good deal to be said for an order that the proceedings be tried together, I think the most important consideration is firmly against such an order. It seems to me that there are likely to be considerable difficulties in terms of procedural rulings and rulings on evidence (in particular, rulings as to the cross-admissibility of evidence), if the proceedings are tried at the same time. 28 An order that the eight proceedings be tried at the same time should not be made.

The other orders 29 As I have already explained, the refusal of the second order leads to the refusal of the other orders sought.

Conclusion 30 It was for these reasons that I made the orders I did on 12 June 2009. I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Besanko.

Associate: Dated: 29 June 2009 Counsel for the Applicants: Mr R Ross-Smith (7 April, 12 June 2009)

Solicitor for the Applicants: DLA Phillips Fox

Counsel for Newport Quays Stage 2A Pty Ltd and MC Marina South Ltd: Mr M L Abbott QC (7 April, 12 June 2009) with Mr M R Burnett (7 April 2009)

Solicitor for Newport Quays Stage 2A Pty Ltd and MC Marina South Ltd : Iles Selley

Counsel for Rebecca McFarlane: Ms F Errington (7 April, 12 June 2009)

Solicitor for Rebecca McFarlane: Gilchrist Connell

Counsel for Urban Construct Project Marketing Pty Ltd: Ms F Errington (7 April, 12 June 2009)

Solicitor for Urban Construct Project Marketing Pty Ltd: Gilchrist Connell

Counsel for Maxwell Barber (Max Barber): Mr R Harms (7 April, 12 June 2009)

Solicitor for Maxwell Barber (Max Barber): Montgomery & Co

Counsel for Travis Barber: Mr R Harms (12 June 2009)

Solicitor for Travis Barber: Montgomery & Co

Counsel for Larissa Barber: Mr R Harms (12 June 2009)

Solicitor for Larissa Barber: Montgomery & Co

Counsel for Hubert Gerard Theunens: Mr H G Theunens appeared in person (7 April 2009) Mr R Harms (12 June 2009)

Solicitor for Hubert Gerard Theunens: Montgomery & Co (12 June 2009)