Kurniadi v Loh

3. A further directions hearing, by way of case management conference, is listed for 2 March 2005 at 9.30am.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

WESTERN AUSTRALIA DISTRICT REGISTRY WAD8 - WAD20 OF 2004

1. The proceedings in W8-W20 of 2004 are hereby deconsolidated and each application is to be treated as a separate proceeding.

2. The costs of the motion for deconsolidation and any costs thrown away by reason of the deconsolidation order will be the respondents' costs in the proceedings in W9 and W10 of 2004.

3. The parties are at liberty to apply within seven days to vary the previous order and are at liberty to apply generally for further directions.

4. A further directions hearing, by way of case management conference, is listed for 2 March 2005 at 9.30am.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

WESTERN AUSTRALIA DISTRICT REGISTRY WAD8 - WAD20 OF 2004

1. The proceedings in W8-W20 of 2004 are hereby deconsolidated and each application is to be treated as a separate proceeding.

2. The costs of the motion for deconsolidation and any costs thrown away by reason of the deconsolidation order will be the respondents' costs in the proceedings in W9 and W10 of 2004.

3. The parties are at liberty to apply within seven days to vary the previous order and are at liberty to apply generally for further directions.

4. A further directions hearing, by way of case management conference, is listed for 2 March 2005 at 9.30am.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

WESTERN AUSTRALIA DISTRICT REGISTRY WAD8 - WAD20 OF 2004

1. The proceedings in W8-W20 of 2004 are hereby deconsolidated and each application is to be treated as a separate proceeding.

2. The parties are at liberty to apply for further directions.

3. A further directions hearing, by way of case management conference, is listed for 2 March 2005 at 9.30am.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

WESTERN AUSTRALIA DISTRICT REGISTRY WAD8 - WAD20 OF 2004

1. The proceedings in W8-W20 of 2004 are hereby deconsolidated and each application is to be treated as a separate proceeding.

2. The parties are at liberty to apply for further directions.

3. A further directions hearing, by way of case management conference, is listed for 2 March 2005 at 9.30am.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

WESTERN AUSTRALIA DISTRICT REGISTRY WAD8 - WAD20 OF 2004

1. The proceedings in W8-W20 of 2004 are hereby deconsolidated and each application is to be treated as a separate proceeding.

2. The parties are at liberty to apply for further directions.

3. A further directions hearing, by way of case management conference, is listed for 2 March 2005 at 9.30am.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

WESTERN AUSTRALIA DISTRICT REGISTRY WAD8 - WAD20 OF 2004

1. The proceedings in W8-W20 of 2004 are hereby deconsolidated and each application is to be treated as a separate proceeding.

2. The parties are at liberty to apply for further directions.

3. A further directions hearing, by way of case management conference, is listed for 2 March 2005 at 9.30am.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

WESTERN AUSTRALIA DISTRICT REGISTRY WAD8 - WAD20 OF 2004

1. The proceedings in W8-W20 of 2004 are hereby deconsolidated and each application is to be treated as a separate proceeding.

2. The parties are at liberty to apply for further directions.

3. A further directions hearing, by way of case management conference, is listed for 2 March 2005 at 9.30am.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

WESTERN AUSTRALIA DISTRICT REGISTRY WAD8 - WAD20 OF 2004

1. The proceedings in W8-W20 of 2004 are hereby deconsolidated and each application is to be treated as a separate proceeding.

2. The parties are at liberty to apply for further directions.

3. A further directions hearing, by way of case management conference, is listed for 2 March 2005 at 9.30am.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

WESTERN AUSTRALIA DISTRICT REGISTRY WAD8 - WAD20 OF 2004

1. The proceedings in W8-W20 of 2004 are hereby deconsolidated and each application is to be treated as a separate proceeding.

2. The parties are at liberty to apply for further directions.

3. A further directions hearing, by way of case management conference, is listed for 2 March 2005 at 9.30am.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

WESTERN AUSTRALIA DISTRICT REGISTRY WAD8 - WAD20 OF 2004

1. The proceedings in W8-W20 of 2004 are hereby deconsolidated and each application is to be treated as a separate proceeding.

2. The parties are at liberty to apply for further directions.

3. A further directions hearing, by way of case management conference, is listed for 2 March 2005 at 9.30am.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

WESTERN AUSTRALIA DISTRICT REGISTRY WAD8 - WAD20 OF 2004

1. The proceedings in W8-W20 of 2004 are hereby deconsolidated and each application is to be treated as a separate proceeding.

2. The parties are at liberty to apply for further directions.

3. A further directions hearing, by way of case management conference, is listed for 2 March 2005 at 9.30am.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

WESTERN AUSTRALIA DISTRICT REGISTRY WAD8 - WAD20 OF 2004

1. The proceedings in W8-W20 of 2004 are hereby deconsolidated and each application is to be treated as a separate proceeding.

2. The parties are at liberty to apply for further directions.

3. A further directions hearing, by way of case management conference, is listed for 2 March 2005 at 9.30am.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

WESTERN AUSTRALIA DISTRICT REGISTRY WAD8-WAD20 OF 2004

REASONS FOR JUDGMENT ON MOTION TO DECONSOLIDATE PROCEEDINGS The Nature and History of the Proceedings 1 The present consolidated proceedings are brought by thirteen applicants each of whom is a citizen of Indonesia. They sue Ostrich Meat & Marketing Company (Australia) Ltd (OMM) and four directors of that company. The applicants say they entered into agreements with OMM in 1998 and/or 1999 for the purchase of ostriches for agistment and breeding by the company. They say they did so on the basis, inter alia, of misleading or deceptive conduct by OMM in connection with projected income streams, its own parlous financial situation and the payment of substantial commissions to foreign agents. The applicants allege misleading or deceptive conduct in contravention of the Trade Practices Act 1974 (Cth), unconscionable conduct in contravention of s 51AC of the Act, breach of fiduciary duty and negligence. 2 The proceedings began their life as separate applications. Each of them claimed recovery of amounts in the vicinity of $50,000. Some six applications were filed between 13 August 2001 and 30 May 2002. Each of the applicants sought damages pursuant to s 82 of the Trade Practices Act and, in the alternative, pursuant to s 1005 of the Corporations Law as it then stood. 3 On 21 May 2002, the applicants in matters W8 and W9 of 2004 were ordered to pay security for the costs of the third and fourth respondents in the sum of $20,000. 4 On 14 August 2002, Carr J transferred all of the applications to the Federal Magistrates Court. Following that transfer a further seven applications were filed in the Federal Magistrates Court on 18 October 2002, all making similar claims against the OMM and its directors. 5 On 2 September 2003, a Registrar of the Federal Magistrates Court made orders consolidating the applications. Subsequently an application was made on behalf of the second respondent that the proceedings be transferred to the Federal Court of Australia. In determining that application, McInnis FM identified as 'the most relevant factors' the sufficiency of the resources of the Federal Magistrates Court to hear and determine the proceedings and the interests of the administration of justice. His Honour observed that since the matter was transferred to the Federal Magistrates Court on 14 August 2002 applications had been made for security for costs and to strike out paragraphs of the statement of claim. There had been extensive discovery and orders made in relation to that issue. The discovery process had involved copying hundreds of documents. It was submitted to his Honour that at the time when the initial applications were transferred from the Federal Court to the Federal Magistrates Court the total value of the claims was approximately $200,000. In the consolidated action, so it was said, the total value of the claims by all the applicants would exceed $1 million. His Honour concluded that the Federal MagistratesCourt was not in a position to hear and determine the matter quickly, even if a selection of the applications were to be listed discretely. In his opinion the duration of the hearing and the complexity of the matter meant that the Federal Magistrates Court did not have the resources to hear and determine it in a timely manner. In all the circumstances, he thought that the application should be transferred to the Federal Court. He was satisfied that there was a greater likelihood that the application would be finally determined in the Federal Court earlier than might be the case if the matter remained in the Federal Magistrates Court. It was not clear what evidentiary base there was for that conclusion. In the event the effect of the consolidation order and the retransfer to this Court has been to generate delay and expense which were supposed to have been avoided by the transfer to the Federal Magistrates Court. 6 The consolidated proceedings were transferred back to the Federal Court. On 5 March 2004, Carr J ordered that the thirteen sets of proceedings should remain consolidated until further order. He directed that future interlocutory proceedings and the trial of the proceedings be expedited so that some or all of the applications could be brought to trial as soon as reasonably possible and in priority to other matters which might be awaiting hearing dates. To that end he foreshadowed that at an appropriate time the Court would consider deconsolidation of part or all of the proceedings. He also referred the proceedings to a Registrar for 'prompt and intensive case management'. Subsequently on 14 May 2004, Deputy Registrar Stanley ordered that applicants who had not provided an address for service within the Western Australian District of the Federal Court do so on or before 28 May 2004. 7 On 16 November 2004, Registrar Jan made an order referring to a Judge of the Court the question whether the applications in W9 and W10 of 2004 should, on the motion of the applicants in those matters, be deconsolidated from the remainder of the matters. He gave directions as to the filing of submissions and supporting materials. The directions hearing was then adjourned to 20 December 2004 at which time it came before me. 8 The applicants in W9 and W10 rely upon an affidavit sworn by their solicitor, Ms Garrett, on 3 December 2004 and 'in a general way' her affidavits sworn on 1 May 2002 and 4 November 2002. They also rely upon the affidavit of Mr John Salim of 16 July 2004. Mr Salim's affidavit was by way of evidence about his involvement with the ostrich farm project and the promises and representations that had been made and their non-fulfilment. 9 Ms Garrett said in her affidavit that she took over the conduct of the consolidated applications in March 2002 from an employed solicitor in the firm at which she then worked. At that time the applicants were operating as a group and met regularly to make decisions. They had a common pool of funds dedicated to the costs involved in the recovery of the money they had put into OMM. By November 2002 she was told that most of the group were financially exhausted. By December 2003, the person from the group with whom she was dealing, Mr Soedarjanto (the applicant in W12), said to her: 'My biggest nightmare is that if this litigation keeps going as slowly as it has been the group will run out of money. I have asked the group to appoint another spokesman. After 2 years of hard work I am exhausted and my family needs me now to spend more time on our personal matters.' 10 Thereafter Ms Garrett was dealing with Mr Kurniadi, the applicant in W8. By mid-January 2004 she said she was getting conflicting instructions from Messrs. Kurniadi, Salim and Soedarjanto. In the event Mr Kurniadi decided to stay unrepresented. She did receive instructions from Mr Salim, the applicant in W9. On 7 February 2004, she attended a telephone conference with Mr Salim and with counsel whom she was briefing. Mr Salim told her that the group had disintegrated because the financial burden of the litigation was too great for most of its members. He wanted Ms Garrett to continue to act for him. He instructed her to ask for deconsolidation so that his matter could be finished. 11 Subsequently Ms Garrett prepared the affidavit of Mr Salim sworn 16 July 2004. This took considerable time as he was rarely in Australia and although he spoke English fluently, it was his second language. She has also obtained reports of expert witnesses at Mr Salim's expense. These were finalised at the end of November 2004. 12 Ms Garrett then set out in her affidavit the background to an amendment being sought to the statement of claim. This involved a procedural history of the matter in the Federal Magistrates Court. The amended statement of claim was in a form previously circulated in September 2003. 13 Ms Garrett is now effectively acting for only two members of the former group, that is Mr Salim in W9 of 2004 and Mr Liaw in W10 of 2004. 14 It is submitted on behalf of the applicants in W9 and W10 that there has been a material change in circumstances since the order for consolidation was made on 2 September 2003. Consolidation has complicated and delayed the progress of the applications in W9 and W10 to a hearing and frustrated the order made by Carr J on 5 March 2004 that there be a high level of priority. It is pointed out that the order for consolidation was not substantive in nature. It was an order subject to the discretion of the Court. It was not made after a contested hearing. It was submitted that it has always been contemplated that one or more of the matters might proceed to a hearing before others. In substance it was put that W9 and W10 are now ready for trial and 'becalmed' because of the lack of progress in the other applications forming part of the consolidated proceedings. 15 The deconsolidation motion was opposed by Mr Robert Ashman, the second respondent, who was represented by counsel at the hearing for that purpose. It was submitted that since the orders for consolidation were made the only material change has been in the legal representation of the applicants. There has been no material change in any of the party's circumstances or cases since the order made by Carr J on 5 March 2004. The liquidity problems experienced by various of the applicants pre-dated the consent to consolidation by many months. It is observed that there is no explanation given by Ms Garrett for the consent to the consolidation in September 2003. The considerations giving rise to the consolidation are said to remain unchanged. These include: (a) legal cost savings for all parties; (b) one trial rather than several different trials; (c) permitting applicants to provide security for costs jointly thereby reducing the burden on each applicant; (d) savings in Court time and resources; (e) savings in travel and accommodation expenses. 16 It was submitted that if W9 and W10 are deconsolidated from the other applications then the respondents will again be faced by a multiplicity of proceedings leading to a substantial increase in legal costs. The security for the second respondent's costs, ordered on 1 April 2003, would become unclear and the second respondent would incur substantial extra travel and accommodation costs. It was submitted that the Court resources would be used unnecessarily in conducting a multiplicity of hearings including but not limited to the trial itself. 17 Mr Forbes, the solicitor for Mr Ashton, swore an affidavit in which he said that although much of the evidence in relation to all thirteen applicants would be the same or at least very similar, there were differences between them which, if the matters were deconsolidated, would prevent one lead case from being determinative of the cases propounded by the remaining applicants. The Need for Deconsolidation 18 In my opinion the consolidation order has not led to a more efficient and expeditious progress of these matters to trial. The applicants in W9 and W10 are keen to progress their matters to trial and, being legally represented, have a reasonable prospect of so doing. The other applicants are legally unrepresented and should not have to focus on anything other than their own individual cases. 19 I propose to make the deconsolidation order which is sought. When W9 and W10 are ready to go to trial then I would be prepared to direct that they be heard together. In the event that any of the other applications is ready to go to trial at or about the same time, then I will be prepared to consider directions that any such applications be heard concurrently or consecutively and that evidence in one be evidence in all. 20 There are questions of previous orders for costs and for security for costs. It appears from what is said in submissions filed on 11 January 2005 on behalf of the applicants in W9 and W10 that no orders were made since the date of consolidation affecting any previous orders for security for costs. Consolidation had no effect on those orders and neither will deconsolidation. To the extent that any costs orders have been made against parties jointly and severally, they will be unaffected by the deconsolidation order. 21 The third respondent submits that during the time that the actions were consolidated the applicants failed to advance their cases procedurally and the respondents were put to costs which have been wasted. In that respect I am prepared to direct that any costs thrown away by reason of the deconsolidation will be the respondents' costs in the cause unless persuaded that some other order is appropriate. As it is applicants W9 and W10 that are moving for deconsolidation, I will make that order in their applications. 22 The question of the application for any security for costs, the future progress of the unrepresented applicants and the amendment of the statement of claim can be dealt with separately. I certify that the preceding twenty-two (22 numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice French.

Counsel for the Applicants in W9 and W10 of 2004: Mr S Jacobs

Solicitor for the Applicants in W9 and W10 of 2004: Hancocks Solicitors Mr STC Loh appeared on his own behalf. Counsel for the Second Respondent: Mr SV Forbes

Solicitor for the Second Respondent: Mr SV Forbes Counsel for the Third Respondent: Solicitors for the Third Respondent: Counsel for the Fourth Respondent: Mr K Yin Solicitors for the Fourth Respondent:

Date of Hearing: 20 December 2004 Date of Last Submissions: 21 January 2005 Date of Judgment: 4 February 2005