The plaintiff sues the defendants, a firm of solicitors, in respect of a retainer she had with them between 2009 and 2012. The plaintiff had been an employee with St George Bank. When St George Bank and Westpac merged, the plaintiff's employment with St George was terminated on 8 December 2009. The solicitors were retained to act for her when disputes arose with regard to her employment, and ultimately to act for her when her employment was terminated.
Proceedings were commenced in the Federal Court on 15 January 2010. The solicitors also acted for a number of other employees in a similar position to the plaintiff.
Various offers were exchanged between the plaintiff and Westpac to settle the Federal Court proceedings. Ultimately those negotiations did not produce a settlement. On 14 October 2014 the Federal Court gave judgment generally in favour of the plaintiffs. All of the proceedings were heard together.
On 14 March 2016 an appeal by Westpac to the Full Court of the Federal Court was allowed in part and the present plaintiff was required to pay a part of Westpac's costs.
A significant aspect of the plaintiff's claim against the solicitors concerns the exchanging of offers between the solicitors and those acting for Westpac in December 2011. The plaintiff alleges that she was not informed of all of the offers made, that a counter offer was made by the solicitors without her instructions, and that she was not advised properly or at all of the costs consequences of rejecting offers made by Westpac. She also alleges that the solicitors had a conflict of interest because they were acting for a number of other parties in a similar position, and it was a condition of at least one of Westpac's offers that all of the plaintiffs had to accept the offer made by Westpac to each of them for the offer made to the plaintiff to be effective.
The plaintiff also has other claims against the solicitors in relation to costs she was required to pay related to the proceedings.
Lavars v Gillis [2018] NSWSC 1912 | Case summary | Zoe
Four of those other plaintiffs have also brought proceedings against the solicitors. Those plaintiffs are Corey Wittenberg, Louise Murphy, William Lawson and Stuart Moore ("the other plaintiffs"). The other plaintiffs are represented by one firm of solicitors but not the firm acting for the plaintiff. The claims made by each of the other plaintiffs are not identical with the claims made by the plaintiff but they have a number of common elements. Those elements relate to the negotiations in December 2011 between the solicitors on behalf of the plaintiff and the other plaintiffs, and Allens Arthur Robinson for Westpac.
In the present proceedings, the solicitors (who I will hereafter refer to as the defendants), have served an affidavit by the first defendant. The plaintiff wishes to adduce evidence in response to that affidavit from Mr Wittenberg, Ms Murphy, Mr Lawson and Mr Moore.
On 12 October 2018 the plaintiff filed a notice of motion seeking two separate orders. The first was that the Supreme Court proceedings commenced by her and by each of Wittenberg, Murphy, Lawson and Moore be heard together with evidence in one being evidence in the others. The second order was that the defendants produce documents in answer to a notice to produce served by the plaintiff on 18 September 2018.
The notice to produce, served pursuant to UCPR r 21.10, sought production of a deed recording the terms of settlement between Elvio Bechelli and Westpac, and two deeds recording costs settlements between the defendants on the one hand and Lucky Poulos and Paul Smith respectively on the other hand. The defendants acted for those three persons in respect of their claims against Westpac. Mr Bechelli settled with Westpac. Messrs Poulos and Smith were two of the plaintiffs whose claims were determined in the judgment of the Federal Court.
The notice to produce required production by 2 October 2018. The documents were not produced on that day, and in response to an email from the plaintiff's solicitors on 3 October 2018 pointing out that failure, the defendants' solicitors wrote saying that the documents sought were not relevant to the matters between the parties and were "clearly privileged communications". The email invited the plaintiff's solicitors to advise on the relevance of the documents and to say why they were not privileged.
On 4 October 2018, the plaintiff's solicitors wrote saying the following:
In relation to the relevance of the documents sought, we advise that:
1. The deed executed between Mr Bechelli and Westpac is relevant to whether it was possible that Ms Lavars' dispute could have been settled in early 2012, insofar as Westpac may have been willing to remove the condition in the 15 December 2011 offer to settle with Ms Lavars for $550,000, and that the offers were steadily converging and this could have resulted in a settlement. Reference is made to paragraphs 27E(b) and 40F of the Amended Statement of Claim, both of which have been denied in the Amended Defence. Plainly it is on the cards that a settlement in a related matter at the relevant time could rationally affect the assessment of the probability of the existence of those facts in issue in this proceeding.
2. In respect of the deeds sought regarding settlement with Mr Poulos and Mr Smith, we note that we have been unable to obtain evidence from either individual in support of Ms Lavars' claim; specific reference is made to paragraphs 37 and 38 of Ms Lavars' affidavit of 2 October 2018, and to paragraphs 17 and 18 of the writer's affidavit of the same date. It is on the cards that the deeds will demonstrate that each of Mr Poulos and Mr Smith were prevented from providing an affidavit in this proceeding because of the terms of the deeds they signed, which is relevant to whether the Court ought to draw a Jones v Dunkel inference or not.
We are not in a position to respond to your assertion that the deeds are "clearly privileged communications" as you have not identified the type of privilege they supposedly attract. It is not apparent to us how a settlement deed would attract privilege however.
Rule 28.5 of the Uniform Civil Procedure Rules provides as follows:
28.5 Consolidation etc of proceedings (cf SCR Part 31, rule 7; DCR Part 12, rule 7)
If several proceedings are pending in the court and it appears to the court:
(a) that they involve a common question, or
(b) that the rights to relief claimed in them 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 to be tried at the same time or one immediately after another, or may order any of them to be stayed until after the determination of any other of them.
The plaintiff does not seek that proceedings be consolidated (that would not be possible without leave because different solicitors act for the other plaintiffs) but simply that they be tried at the same time as the other proceedings with evidence in one being evidence in the others. The same solicitors act for Wittenberg, Murphy, Lawson and Moore. Those other plaintiffs support the plaintiff's application, although no motions to that effect have been filed by them.
In the Federal Court all five plaintiffs (and other claimants) were represented by the present defendants and the individual proceedings against Westpac were all case-managed and heard together. The judgments handed down at first instance and on appeal were all dealt with in the one judgment at each level.
[2]
Submissions
The plaintiff does not dispute that the five proceedings are not all identical. However, the plaintiff submits that there are important common issues and factual overlap in all five proceedings relating to the representation and advice in the Federal Court proceedings, and most significantly in relation to negotiations to settle the claim against Westpac in December 2011. The common issues are said to be:
(a) offers of compromise were sent by Westpac to the defendants on behalf of each of the plaintiff, Wittenberg, Murphy and Moore on 2 December 2011;
(b) the defendants failed to advise the plaintiff and those parties of the offers of compromise until 13 December 2011;
(c) the advice provided to the plaintiff and those parties on 13 December 2011 was negligent and in some respects identical; and
(d) the defendants rejected the "global" offer made by Westpac on 15 December 2011 on behalf of the plaintiff and the four other plaintiffs without having instructions to do so, or in some cases without advising them of it.
The plaintiff submitted that, in relation to (d) above, on 15 December 2011, a "global" offer was made by Westpac, which involved certain sums being offered to each of the eight clients of the defendants (including the five current plaintiffs) on the condition that each offer was only capable of acceptance if all eight were accepted. The defendants responded to the "global" offer by saying that they had instructions from all eight clients to reject the offer. The five current plaintiffs allege that they provided no such instructions (Lavars Statement of Claim at [27C], Wittenberg SoC at [37], Murphy SoC at [46], Moore SoC at [47]).
The plaintiff submitted that there is a central factual dispute in the five current proceedings about what advice if any was given to, and what instructions if any were received from, the defendants' eight clients. The resolution of that factual dispute, it was submitted, would have implications for the allegations that the defendants breached the duty of care they owed each of the current plaintiffs. The plaintiff submitted that it may also have implications for the question of causation of loss in circumstances where Westpac's offer was stated to be conditional upon all eight clients accepting.
The plaintiff submitted that, if the five proceedings are not heard at the same time, then the five current plaintiffs and at least one of the defendants' witnesses may be required repeatedly to give evidence about the same events. There is a risk, it is submitted, that if the proceedings are heard individually there might be conflicting findings.
The plaintiff relied on s 56 of the Civil Procedure Act 2005 (NSW) to submit that:
(a) a single hearing with overlapping evidence can be expected to consume fewer court resources than multiple different hearings;
(b) it might be expected that the defendants will be put to less expense in defending only one hearing, rather than multiple hearings; and
(c) the parties will not be faced with the unsatisfactory prospect of judgments with conflicting findings on the same issues.
The defendants submitted that, despite the apparent similarity in the nature of the proceedings and the existence of some common issues of fact and law, the majority of issues that the court will need to determine are not in fact common issues. The defendants point to the following matters:
(a) each of the plaintiffs retained the defendants at separate dates and had separate conversations with them;
(b) the plaintiff, but no one else, brought a claim for unfair dismissal;
(c) Wittenberg, but no one else, brought a claim for deceit and misleading and deceptive conduct;
(d) Moore, but no one else, was provided with advice concerning his ongoing employment;
(e) Murphy, but no one else, was provided with advice about a residential real estate transaction, a large claim for total and permanent disablement insurance, and early access to her superannuation;
(f) Lavars, Moore, and Lawson had what was said to be the confounding fact of secondment;
(g) Murphy, Wittenberg and Lawson brought claims for future economic loss but the plaintiff and Moore did not; and
(h) none of the plaintiffs is alleged to have been present during discussions giving rise to any other retainer.
The defendants submitted that evidence about advice given or not given to a different plaintiff as to their prospects of succeeding in their own case, cannot fairly be adduced by the plaintiff in order to prove or disprove whether Mr Gillis of the defendants made particular statements to her and whether those statements were or were not adequate to discharge the defendants' duty.
The defendants submitted that it is difficult to quantify the extent of savings in terms of cost and time if proceedings are heard together. There will be significant complexity associated with procedural and evidential rulings if the proceedings are to be heard together so as to ensure that the parties are not prejudiced by having otherwise inadmissible evidence adduced in a particular case. That would be challenging to the Court and to the parties.
The defendants submitted that the orders proposed by the plaintiff give rise to a real risk of prejudice, noting that the plaintiffs' cases largely turn on conversation between the individual plaintiffs and one of the defendants. Inadmissible evidence has already been referred to. A second matter is that forensic choices open to the defendants could be more limited. The defendants submitted, as an example, that it is only after a plaintiff closes his or her case that a defendant finally decides whether they are going into evidence and whether or not to call a particular witness. The defendants may wish to read an affidavit in one case and not another. That is a forensic choice currently open to them but would not be available were the cases to be heard together.
[3]
Legal principles
In Humphries v Newport Quays Stage 2A Pty Ltd [2009] FCA 699, Besanko J said in respect of O 29 r 5 of the Federal Court Rules 2011 (Cth), an identical provision to UCPR r 28.5:
[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?
That passage was quoted with approval by Austin J in Ghose v CX Reinsurance Company Ltd [2010] NSWSC 110 at [29].
[4]
Consideration
In my opinion, four matters point strongly to the conclusion that the five proceedings should be heard together.
First, and most significantly, is the commonality of the complaints regarding the December 2011 negotiations. To see the extent of the similarity of the complaints in that regard, it is necessary to set out the relevant parts of the pleadings.
The plaintiff relevantly pleads as follows:
15. By Notice of Offer to Compromise dated 2 December 2011, which was sent to and received by the Defendants, Westpac made a formal offer to compromise Proceedings NSD 31 of 2010, for the amount of $375,000 plus costs as agreed or assessed, which was open for acceptance until 5pm on 16 December 2011 (the Westpac Offer of Compromise).
16. The Plaintiff was not advised of the existence of the Westpac Offer of Compromise until 13 December 2011.
17. On 13 December 2011, by email sent at 1:07PM having the subject "SGB Update" attaching the Westpac Offer of Compromise, the First Defendant advised the Plaintiff that:
a. "The effect of the offer of compromise is that if you obtain a verdict less than Westpac have set out in the offer of compromise, you: (i) Will not recover any more of your own costs incurred beyond the date of the offer; and (it) Will have to pay Westpac's costs incurred after the offer of compromise" (Costs Advice); and
b. the sum offered was "at the bottom end of the range for settlement of your case" (Range Advice); and
c. if the Plaintiff was found to be on secondment, the offer was "not in the range." (Secondment Range Advice).
18. On 13 December 2011, by email sent at 2:28PM with the subject "SGB Update", the Plaintiff responded by stating inter alia that: "Westpac have not stated in the offer what 'their agreed or assessed costs' actually are"; and "It is impossible to consider this offer without pre-agreed costs, unless of course you are going to accept the costs that they decide on."
19. The Defendants took no further steps to advise the Plaintiff in relation to the Westpac Offer of Compromise.
20. In reliance upon the matters pleaded at |17]-[19] above, the Plaintiff determined to reject Westpac's Offer of Compromise.
…
27A. On 9 December 2011, the Plaintiff made an offer to settle Proceedings NSD 31 of 2010 for $610.000 inclusive of costs, which was open for acceptance until 4pm on 16 December 2011.
Particulars
Letter dated 9 December 2011 from Michael Gillis to Westpac's solicitors, Allens Arthur Robinson.
27B. By letter dated 15 December 2011, Westpac made a counter-offer, namely to settle for $550.000 inclusive of costs, which was open for acceptance until 4pm on 19 December 2011.
Particulars
The letter was emailed from Peter Arthur at Allens Arthur Robinson to Michael Gillis at 8:53 AM on 15 December 2011.
27C. At no time did the Defendants:
a. inform the Plaintiff of Westpac's counter-offer;
b. provide the Plaintiff with a copy of the letter which contained the counter-offer;
c. advise the Plaintiff that the effect of the counter-offer was to reject her offer of 9 December 2011;
d. give the Plaintiff advice about her options for responding to the counter-offer, whether by acceptance, rejection or further counter-offer; or
e. seek the Plaintiffs' instructions about the counter-offer.
27D. Westpac's counter-offer was stated to be subject to the condition that offers made to each of seven other clients of the Defendants also be accepted.
27E. At no time did the Defendants:
a. advise the Plaintiff about the condition;
b. give the Plaintiff advice about what attempt she might make to have the counter-offer to her separated from Westpac's offers to the Defendants' other clients;
c. advise the Plaintiff about any conflict between his duty to the Plaintiff and his duty to his other clients to whom an offer had been made by Westpac; or
d. give the Plaintiff advice about seeking advice from another solicitor about the counter-offer and the condition.
27F. By email on 15 December 2011, the Defendants:
a. on behalf of the Plaintiff, rejected Westpac's counter-offer;
b. rejected Westpac's offers to the seven other clients of the Defendants;
c. restated the Plaintiffs offer of 9 December 2015;
d. did not make any further counter-offer on behalf of the Plaintiff; and
e. did not make any attempt to have Westpac's counter-offer to the Plaintiff separated from Westpac's offers to the Defendants' other clients.
Particulars
Email from Michael Gillis to Peter Arthur and David Collinge at Allens Arthur Robinson to Michael Gillis at 9:52 AM on 15 December 2011.
27G. By letter dated 15 December 2011, Westpac:
a. again rejected the Plaintiffs offer of 9 December 2011;
b. stated that Westpac was prepared to consider any reasonable offer that was made in the spirit of compromise but not one that simply repeated a position that Westpac had already stated was unacceptable to it; and
c. did not make any further counter-offer.
Particulars
Letter dated 15 December 2011 from Peter Arthur at Allens Arthur Robinson to Michael Gillis.
27H. At no time did the Defendants inform the Plaintiff about the letter referred to in the preceding paragraph or its contents.
27I. Apart from the Westpac Offer of Compromise (which expired in accordance with its terms on 16 December 2011), from 15 December until 21 December 2011 there was no extant offer between the Plaintiff and Westpac, with the last offer having been made by Westpac.
27J. On 21 December 2011, the Defendants for the first time informed the Plaintiff that they considered a settlement at $550,000 inclusive of costs was in the Plaintiff's interests.
Particulars
Telephone conversation from Michael Gillis to the Plaintiff whilst she was on leave In which Michael Gillis said words to the following effect "they have made an offer in the vicinity of $550.000 inclusive of costs. I think it's a good offer."
27K. On 21 December 2011, the Defendants on behalf of the Plaintiff made an offer to settle Proceedings NSD 31 of 2010 for $580.000 inclusive of costs, which was open for acceptance until 4pm on 23 December 2011.
Particulars
Letter dated 21 December 2011 from Michael Gillis to Westpac's solicitors, Allens Arthur Robinson.
27L. Westpac did not accept the offer referred to in the proceedings paragraph, nor did it engage in any further negotiations with the Plaintiff.
In the proceedings brought by Corey Wittenberg, the following is pleaded with regard to the negotiations in December 2011:
December 2011 Settlement Offers
23. In October 2011, the Proceedings and other proceedings brought by the First Defendant on behalf of 7 other former SGB employees in the Federal Court (Other Proceedings) had not settled and were listed for final hearing in April 2012.
Particulars
Proceedings brought by the First Defendant on behalf of Stuart Moore, Louise Murphy, Danielle Lavars, William Lawson, Elvio Bechelli, Lucky Poulos and Paul Smith (Other Claimants).
24. On 2 December 2011, Westpac issued a Notice of Offer to Compromise to the Plaintiff in the sum of $285,000 plus costs, open to be accepted until 16 December 2011.
Particulars
Written Notice of Offer of Compromise dated 2 December 2011 filed by Allens Arthur Robinson (Allens) on behalf of Westpac and served on the offices of the Defendants (Offer of Compromise).
25. The First Defendant did not provide the Plaintiff with a copy of the Offer of Compromise or otherwise notify him of its contents until 13 December 2011.
26. On 9 December 2011, before notifying the Plaintiff of the Offer of Compromise and without instructions, the First Defendant made a counter offer to Westpac on behalf of the Plaintiff and the Other Claimants in the total sum of $6.48 million, including the sum of $1.49 million inclusive of legal costs in settlement of the Proceedings, open until 4:00 pm on 16 December 2011 (Counter Offer).
Particulars
Letter from the Defendants to Allens dated 9 December 2011.
27. The Plaintiff did not instruct the First Defendant to either reject the Offer of Compromise nor make the Counter Offer.
28. As of the time of the making of the Counter Offer on 9 December 2011, the Plaintiff had not received an invoice from the Defendants in respect of the legal costs purportedly incurred up to that date and did not know the amount of reasonable costs incurred.
29. On 9 December 2011, the First Defendant advised the Plaintiff that it had made a final offer on his behalf in the sum of $1.25 million plus costs, even though the offer put by the First Defendant to Allens at that point in time was $1.49 million inclusive of costs.
Particulars
Email from the First Defendant to the Plaintiff on 9 December 2011.
30. At the time of the making of the Counter Offer in the sum of $1.49 million inclusive of costs, the Plaintiff's costs in the Proceedings were not $240,000.
31. On 13 December 2011, the First Defendant gave the Plaintiff notice of the Offer of Compromise for the first time and advised that it was open for acceptance until 16 December 2011, even though the Offer of Compromise had already been rejected by the making of the Counter Offer.
Particulars
Email from the First Defendant to the Plaintiff on 13 December 2011 (the 13 December Email).
32. In the 13 December Email the First Defendant advised the Plaintiff that:
The effect of the offer of compromise is that if you obtain a verdict less than Westpac have set out in the offer of compromise, you:
(i) Will not recover any more of your own costs incurred beyond the date of the offer; and
(ii) Will have to pay Westpac's costs incurred after the offer of compromise.
Obviously, we do not recommend that you accept the offer of compromise.
33. The First Defendant did not fully or properly explain to the Plaintiff:
(a) the significance of the Offer of Compromise;
(b) why he recommended that the Plaintiff should not accept the offer;
(c) the risk of an adverse costs orders being made against the Plaintiff if he rejected the Offer of Compromise;
(d) the risk of liability for Westpac's costs; and
(e) the Plaintiff's own legal costs that would be incurred if the Plaintiff rejected the offer;
and did not give the Plaintiff a proper opportunity to consider the Offer of Compromise or make an informed decision about whether to accept or reject it.
34. Had the Plaintiff had been properly advised by the First Defendant of the limited prospects of success in the Proceedings and the consequences of rejecting the Offer of Compromise and if the First Defendant had not recommended unconditionally that it be rejected, the Plaintiff would have accepted the Offer of Compromise.
35. At 8.52am on 15 December 2011, Westpac offered to settle the Proceedings and the Other Proceedings on a global basis in the aggregate sum of $4.45 million, including the sum of $850,000, inclusive of costs, in settlement of the Proceedings (15 December Offer).
Particulars
Letter from Allens to the Defendants sent by email at 8:53 am on 15 December 2011.
36. The 15 December Offer was open for acceptance until 4:00 pm on 19 December 2011.
37. At 9:52 a.m. on 15 December 2011, without having notified the Plaintiff of the 15 December Offer, the First Defendant, without instructions from the Plaintiff, rejected the 15 December Offer and purported to resend and extend the Counter Offer.
Particulars
Email from the First Defendant to Allens sent at 9:52 am on 15 December 2011 (Gillis' 15 December Email).
38. Gillis' 15 December Email misrepresented that the First Defendant had obtained "all of [his] clients' instructions to reject the offer to each of them contained in your letter".
39. The First Defendant did not provide the Plaintiff with a copy of the letter containing the 15 December Offer or discuss the 15 December Offer with the Plaintiff before sending Gillis' 15 December Email rejecting the 15 December Offer and extending the Counter Offer.
40. The First Defendant did not inform the Plaintiff that he intended to reject the 15 December Offer and reinstate the Counter Offer before sending Gillis' 15 December Email rejecting the 15 December Offer and extending the Counter Offer.
41. Had the First Defendant had informed the Plaintiff of the 15 December Offer, the Plaintiff would have accepted the offer.
The defence to paragraphs 37-40 of Mr Wittenberg's statement of claim is pleaded in the defence filed 14 May 2018 as follows:
23. As to paragraph 37 of the Statement of Claim, the Defendants:
(a) Admit the email of 15 December 2011;
(b) Say that at or about 8:57 am on 15 December 2011:
(i) the plaintiff was notified by the Second Defendant of the 15 December offer; and
(ii) the Plaintiff instructed the Second Defendant to indicate to Westpac that he (the Plaintiff) rejected the 15 December offer;
(c) Say that by 9:52 on 15 December 2011 the Other Claimants had instructed the Defendants to reject the 15 December offer;
(d) Otherwise deny the paragraph.
24. The Defendant (sic) deny paragraph 38 of the Statement of Claim.
25. The Defendants deny paragraph 39 and 40 of the Statement of Claim.
In the proceedings brought by Louise Murphy, she pleaded the following in relation to the December 2011 negotiations:
December 2011 Settlement Offers
25. In about October 2011 the Proceedings and proceedings brought by Gillis and GDL on behalf of 7 other former SGB employees in Federal Court against Westpac (Other Proceedings) had not settled and were listed for final hearing in April 2012.
Particulars
Proceedings brought by Gillis and GDL on behalf of Correy Wittenberg, Stuart Moore, Danielle Lavars, William Lawson, Elvio Bechelli, Lucky Poulos and Paul Smith (Other Claimants).
26. On 2 December 2011, Westpac issued a Notice of Offer to Compromise to the Plaintiff in the sum of $300,000 plus costs, open to be accepted until 16 December 2011.
Particulars
Written Notice of Offer of Compromise dated 2 December 2011 filed by Allens Arthur Robinson (Allens) on behalf of Westpac and served on the offices of GDL (Offer of Compromise).
27. Gillis did not provide the Plaintiff with a copy of the Offer of Compromise or otherwise notify her of its contents until at least 10 days after it was issued.
28. On 9 December 2011, before notifying the Plaintiff of the Offer of Compromise and without instructions, Gillis made a counter offer to Westpac on behalf of the Plaintiff and the Other Claimants in the total sum of $6.48 million, including the sum of $755,000 inclusive of costs for settlement of the Proceedings, open until 4:00 pm on 16 December 2011 (Counter Offer).
Particulars
Letter from Gillis to Allens dated 9 December 2011.
29. The Plaintiff did not instruct Gillis to either reject the Offer of Compromise nor make the Counter Offer.
30. As of the time of the making of the Counter Offer, the Plaintiff had never received any quantification or invoice from GDL in respect of the costs purportedly incurred by her except for the estimate provided on 29 April 2010 referred to above.
31. On about 13 December 2011 Gillis gave the Plaintiff notice of the Offer of Compromise for the first time and advised that it should be rejected, but no advice was given regarding the Plaintiff's prospects in the Proceedings and the amount of her own and adverse costs that the Plaintiff could be liable for if she rejected the Offer of Compromise and was ultimately unsuccessful in the Proceedings.
32. If the Plaintiff had been properly advised of the prospects of being unsuccessful in the Proceedings and the consequences of that, and but for Gillis' strong advice to the contrary, she would have accepted the Offer of Compromise. At or around the time of the Offer of Compromise, the Plaintiffs low side estimate of the value of her claims against Westpac (not considering any exemplary damages) was slightly in excess of $300,000.
33. On 15 December 2011 Westpac made a further counter offer to settle the Proceedings and the Other Claimants' claims on a global basis in the aggregate sum of $4.45 million, including the sum of $500,000, inclusive of costs, in settlement of the Proceedings (15 December Offer).
Particulars
Letter from Allens to GDL dated 15 December 2011 emailed at 8:53 am on that date.
34. The 15 December Offer by its terms was open for acceptance until 4:00 p.m. on 19 December 2011.
35. The Defendants purport that the Plaintiff had incurred the sum of about $169,980 in costs and disbursements as at 15 December 2011.
Particulars
Application for Assessment for Costs lodged by the Defendants against the Plaintiff and dated 29 July 2016.
36. At 9:52 a.m. on 15 December 2011, without having notified the Plaintiff of the 15 December Offer and without instructions, Gillis rejected the 15 December Offer and purported to republish and extend the Counter Offer, until 4:00 pm on 16 December 2011.
Particulars
Email from Gillis to Peter Arthur of Allens on 15 December 2011.
37. The Plaintiff was not consulted, nor gave instructions regarding the rejection of the 15 December Offer nor the issuance or quantum of the republished Counter Offer.
38. On 15 December 2011 Westpac again rejected the republished Counter Offer.
Particulars
Allens letter to GDL dated 15 December 2011 (Allens' 15 December Letter).
39 Allens' 15 December 2011 Letter:
(a) indicated inter alia that "Westpac is prepared to consider any reasonable offer...";
(b) was not provided by Gillis to the Plaintiff, who only came into possession of it in 2017 from one of the Other Claimants.
40. If the Plaintiff had been aware of Westpac's position to consider any reasonable offer, as expressed in Allen's 15 December Letter, she would have consulted with Gillis about making a further counter offer; but she did not have that opportunity because the letter was not provided to her, nor was she otherwise made aware of Westpac's position.
41. There were no further settlement negotiations subsequent to Westpac's rejection of the republished Counter Offer.
42. Subsequent to the 15 December Offer, GDL and Gillis did not:
(a) consult with the Plaintiff about making a counter offer;
(b) provide advice to the Plaintiff about the potential consequences of failing to seize the opportunity to settle the Proceedings in December 2011; and
(c) did not make a further counter offer on behalf of the Plaintiff save for republishing the Counter Offer which had previously been rejected by Westpac.
43. The Plaintiff would have accepted the 15 December Offer if she had been given the opportunity to do so and was properly advised.
In the proceedings brought by William Lawson, he pleaded the December 2011 negotiations as follows:
December 2011 Settlement Offers
27. In about October 2011 the Proceedings and proceedings brought by GDL on behalf of 7 other former SGB employees in Federal Court proceedings against Westpac (Other Proceedings) had not settled and were listed for final hearing in April 2012.
Particulars
Proceedings brought by GDL on behalf of Correy Wittenberg, Louise Murphy, Stuart Moore, Danielle Lavars, William Lawson, Elvio Bechelli, Lucky Poulos and Paul Smith (Other Claimants).
28. On 8 December 2011, the Plaintiff attended a mediation of the Proceedings. Gillis and Ian Neil, of counsel, acted for the Plaintiff at the mediation.
29. The last position expressed at the Mediation was an offer by Westpac to settle the Proceedings by it making a payment to the Plaintiff in the sum of $420,000 plus costs.
30. On 9 December 2011, Westpac issued a Notice of Offer to Compromise to the Plaintiff in the sum of $420,000 plus costs, open to be accepted until 23 December 2011.
Particulars
Written Notice of Offer of Compromise dated 9 December 2011 filed by Allens Arthur Robinson (Allens) on behalf of Westpac and served on the offices of GDL (Offer of Compromise).
31. GDL did not provide the Plaintiff with a copy of the Offer of Compromise or otherwise notify him of it until 13 December 2011.
32. On 9 December 2011, before notifying the Plaintiff of the Offer of Compromise and without instructions, GDL made a counter offer to Westpac on behalf of the Plaintiff and the Other Claimants in the total sum of $6.48 million, including the sum of $1,100,000 inclusive of costs for settlement of the Proceedings, open until 4:00 pm on 16 December 2011 (Counteroffer).
Particulars
Letter from GDL to Allens dated 9 December 2011.
33. As of the time of the making of the Counter Offer the Plaintiff had not instructed GDL to either reject the Offer of Compromise nor make the Counter Offer in the sum of $1,100,000.
34. As of the time of the making of the Counter Offer, the Plaintiff had never received an invoice from GDL in respect of the solicitor's costs purportedly incurred and had no knowledge of the quantum of costs besides the 13 August 2010 estimate in the sum of $25,000 to $30,000.
35. On 9 December 2011, GDL advised the Plaintiff that it had made a "final offer" on his behalf in the sum of $895,000 plus costs, even though the offer put by GDL at that point in time:
(a) was not denominated by GDL as a "final offer" but was a counter offer to the Offer of Compromise; and
(b) was put on the basis of $1,100,000 inclusive of costs and not $895,000 plus costs.
Particulars
Email from Michael Gillis to the Plaintiff on 9 December 2011.
36. Upon information and belief obtained subsequent to the conclusion of the Proceedings, at the time of the making of the Counter Offer in the sum of $1,100,000 inclusive of costs, the Plaintiff's purported cost liability in connection with the Proceedings was in the sum of approximately $140,000.
Particulars
GDL Application for Assessment of Costs against the Plaintiff filed on 22 December 2016.
37. On 13 December 2011 GDL gave the Plaintiff notice of the Offer of Compromise for the first time and advised that it was open for acceptance until 23 December 2011, even though the Offer of Compromise had already been rejected by the making of the Counter Offer.
Particulars
Email from Michael Gillis to the Plaintiff on 13 December 2011 (the 13 December Email).
38. In the 13 December Email Gillis advised the Plaintiff that:
(a) "The effect of the offer of compromise is that if you obtain a verdict less than Westpac have set out in the offer of compromise, you: (i) Will not recover any more of your own costs incurred beyond the date of the offer; and (ii) Will have to pay Westpac's costs incurred after the offer of compromise"; and
(b) he did not recommend that the Plaintiff accept the offer.
39. On or about 13 December 2011 Gillis advised the Plaintiff that the Offer of Compromise should be rejected, but Gillis did not have a discussion at that time with the Plaintiff regarding:
(a) the prospects of him being unsuccessful in the Proceedings;
(b) the costs consequences if he were to be unsuccessful in the Proceedings; or
(c) an updated estimate of the Plaintiffs costs with GDL.
Particulars
Conversation between Michael Gillis and the Plaintiff on about 13 December 2011 (the 13 December Conversation).
40. In reliance of the advice of GDL and Gillis, the Plaintiff instructed Gillis to reject the Offer of Compromise.
Particulars
Email from the Plaintiff to Gillis on 13 December 2011.
41. If the Plaintiff had been properly advised of the prospects of being unsuccessful in the Proceedings and the costs consequences of that, and but for Gillis' advice to the contrary, he would have accepted the Offer of Compromise.
42. On 15 December 2011 Westpac offered to settle the Proceedings and the Other Claimants' claims on a global basis in the aggregate sum of $4.45 million, including the sum of $700,000, inclusive of costs, in settlement of the Proceedings (15 December Offer).
Particulars
Letter from Allens to GDL dated 15 December 2011 emailed at 8:53 am on that date.
43. The Plaintiff was not provided with a copy of the letter containing the 15 December Offer by Gillis or GDL and did not see it prior to the commencement of these proceedings.
44. The 15 December Offer by its terms was open for acceptance until 4 p.m. on 19 December 2011.
45. At 9:52 a.m. on 15 December 2011 Gillis rejected the 15 December Offer by way of email saying that the he had "obtained all of [his] clients' instructions to reject the offer to each of them" and purported to republish and extend the Counter Offer, until 4:00 pm on 16 December 2011.
Particulars
Email from Gillis to Peter Arthur of Allens on 15 December 2011
46. The Plaintiff did not instruct Gillis or GDL to:
(a) reject the 15 December Offer; or
(b) republish the Counter Offer.
47. On 15 December 2011 Westpac again rejected the republished Counter Offer.
Particulars
Allens letter to GDL dated 15 December 2011 (Allens' 15 December Letter).
48. Allens' 15 December 2011 Letter:
(a) stated inter alia that "Westpac is prepared to consider any reasonable offer...";
(b) was not provided by Gillis or GDL to the Plaintiff, who only saw it after the commencement of these proceedings.
49. If the Plaintiff had been aware of Westpac's position to consider any reasonable offer, as expressed in Allen's 15 December Letter, he would have consulted with Gillis about making a further counter offer; but he did not have that opportunity because the letter was not provided to him by Gillis or GDL, nor was he otherwise made aware of Westpac's position.
In the proceedings brought by Stuart Moore, he pleaded the December 2011 negotiations as follows:
December 2011 Settlement Offers
33. In about October 2011 the Proceedings and proceedings brought by GDL on behalf of 7 other former SGB employees in Federal Court proceedings against Westpac (Other Proceedings) had not settled and were listed for final hearing in April 2012.
Particulars
Proceedings brought by GDL on behalf of Correy Wittenberg, Louise Murphy, Danielle Lavars, William Lawson, Elvio Bechelli, Lucky Poulos and Paul Smith (Other Claimants).
34. On 2 December 2011, Westpac issued a Notice of Offer to Compromise to the Plaintiff in the sum of $600,000 plus costs, open to be accepted until 16 December 2011.
Particulars
Written Notice of Offer of Compromise dated 2 December 2011 filed by Allens Arthur Robinson (Allens) on behalf of Westpac and served on the offices of GDL (Offer of Compromise).
35. GDL did not provide the Plaintiff with a copy of the Offer of Compromise or otherwise notify him of its contents until 13 December 2011.
36. On 9 December 2011, before notifying the Plaintiff of the Offer of Compromise and without instructions, GDL made a counter offer to Westpac on behalf of the Plaintiff and the Other Claimants in the total sum of $6.48 million, including the sum of $1.01 million inclusive of costs for settlement of the Proceedings, open until 4:00 pm on 16 December 2011 (Counter Offer).
Particulars
Letter from GDL to Allens dated 9 December 2011.
37. The Plaintiff did not instruct GDL to either reject the Offer of Compromise nor make the Counter Offer.
38. As of the time of the making of the Counter Offer, the Plaintiff had never received an invoice from GDL in respect of the solicitor's costs purportedly incurred.
39. On 9 December 2011, GDL advised the Plaintiff that it had made a "final offer" on his behalf in the sum of $810,000 plus costs, even though the offer put by GDL at that point in time:
(a) was not denominated by GDL as a "final offer" but was a counter offer to the Offer of Compromise; and
(b) was put on the basis of $1.01 million inclusive of costs and not $810,000 plus costs
Particulars
Email from Michael Gillis to the Plaintiff on 9 December 2011
40. Upon information and belief obtained subsequent to the conclusion of the Proceedings, at the time of the making of the Counter Offer in the sum of $1.01 million inclusive of costs, the Plaintiff's purported costs in connection with the Proceedings was (sic) in the sum of approximately $150,000
Particulars
GDL Application for Assessment of Costs
41. On 13 December 2011 GDL gave the Plaintiff notice of the Offer of Compromise for the first time and advised that it was open for acceptance until 16 December 2011, "1 hour after [the Counter Offer] has expired", even though the Offer of Compromise had already been rejected by the making of the Counter Offer.
Particulars
Email from Michael Gillis to the Plaintiff on 13 December 2011 (the 13 December Email).
42. In the 13 December Email Gillis advised the Plaintiff that:
(a) "The effect of the offer of compromise is that if you obtain a verdict less than Westpac have set out in the offer of compromise, you: (i) Will not recover any more of your own costs incurred beyond the date of the offer; and (ii) Will have to pay Westpac's costs incurred after the offer of compromise";
(b) the sum offered was "at the bottom end of the range for settlement of your case"; and
(c) if the Plaintiff was found to be on secondment, the offer was "not in the range."
43. On or about 13 December 2011 Gillis advised the Plaintiff that the Offer of Compromise should be rejected, but Gillis did not have a discussion at that time with the Plaintiff regarding:
(a) the prospects of him being unsuccessful in the Proceedings;
(b) the consequences if he were to be unsuccessful in the Proceedings.
Particulars
Conversation between Michael Gillis and the Plaintiff on about 13 December 2011 (the 13 December Conversation).
44. If the Plaintiff had been properly advised of the prospects of being unsuccessful in the action and the consequences of that, and but for Gillis' strong advice to the contrary, he would have accepted the Offer of Compromise.
45. On 15 December 2011 Westpac offered to settle the Proceedings and the Other Claimants' claims on a global basis in the aggregate sum of $4.45 million, including the sum of $850,000, inclusive of costs, in settlement of the Proceedings (15 December Offer).
Particulars
Letter from Allens to GDL dated 15 December 2011 emailed at 8:53 am on that date.
46. The 15 December Offer by its terms was open for acceptance until 4 p.m. on 19 December 2011.
47. At 9:52 a.m. on 15 December 2011, without having notified the Plaintiff of the 15 December Offer, GDL without instructions rejected the 15 December Offer and purported to republish and extend the Counter Offer, until 4.00 pm on 16 December 2011.
Particulars
Email from Michael Gillis to Peter Arthur of Allens on 15 December 2011.
48. The Plaintiff was not consulted about the rejection of the 15 December Offer nor the issuance or quantum of the republished Counter Offer.
49. On 15 December 2011 Westpac again rejected the republished Counter Offer.
Particulars
Allens letter to GDL dated 15 December 2011 (Allens' 15 December Letter).
50. Allens' 15 December 2011 Letter:
(a) said inter alia that "Westpac is prepared to consider any reasonable offer...";
(b) was not provided by GDL to the Plaintiff, who only came into possession of it in 2016 from one of the Other Claimants.
51. lf the Plaintiff had been aware Westpac's position to consider any reasonable offer, as expressed in Allen's 15 December Letter, he would have consulted with Gillis about making a further counter offer; but he did not have that opportunity because the letter was not provided to him, nor was he otherwise made aware of Westpac's position.
The letter from Allens Arthur Robinson on behalf of Westpac dated 15 December 2011, referred to in each of the above pleadings, offered to settle all the claimants' claims on the basis of payments set out in a table in respect of each of the claimants. The offers were inclusive of costs. The letter went on to say:
Each of these offers is subject to the condition that:
(1) All other offers are accepted by the relevant applicant; and
(2) Each applicant will enter into a deed of release with Westpac in the same terms mutatis mutandis as the deeds previously provided to the 19 applicants in similar Federal Court proceedings with whom our clients settled in about March 2011.
The response from the defendants by email of 15 December 2011 at 9:52am was as follows:
I refer to your confidential and without prejudice letter of today.
I have obtained all of my clients' instructions to reject the offer to each of them contained in your letter.
I am instructed to leave open to your client until 4.00pm tomorrow our clients' offers that are contained in our letter to you dated 9 December 2011.
We have reviewed the damages issue and obtained advice the whole amount can be paid as damages without attracting any tax liability. I am also instructed by Wittenberg, Lawson and Smith that they will individually provide to your client an indemnity in relation to any tax liability for the payment of the settlement sum as damages.
Mr Faulkner of counsel for the plaintiff described the December negotiations issue as the epicentre of the complaint. It should first be noted that the plaintiff and the other plaintiffs all make similar complaints in relation to the negotiations. The same negative propositions are pleaded by each plaintiff; for example, offers were not communicated or were not communicated for an inappropriate period of time. The truth of those propositions will have to be determined. They will involve credit findings.
The issue of the correctness of the defendants' email of 15 December 2011 at 9:52am will be an issue in all of the proceedings. The probability is that each of the plaintiffs would give evidence in all of the proceedings if they were heard separately. If the proceedings were heard separately, a credit finding would be necessary in relation to the defendant who forwarded the email of 15 December 2011.
Whatever credit finding was made would mean that the subsequent proceedings could not be heard by the same judge. The same issue would arise sequentially in each subsequent hearing. The defendants accept that the necessity of credit findings would mean the cases would need to be heard by separate judges. That immediately gives rise to the potential for inconsistent findings on the same issue in each of the proceedings.
Apart from the pleadings set out above, each of the plaintiffs alleges that, in acting for the plaintiff and the other plaintiffs, as well as the other claimants against Westpac, the defendants breached a fiduciary duty they owed to each of the plaintiffs. That position is said to arise because the defendants had a conflict of interest in negotiating with Westpac on behalf of all of them as a group. The breach of fiduciary duty is pleaded by the plaintiff at paragraph [27M(i)-(m)] and [27P]. It is pleaded in very similar terms by Wittenberg at [83], by Murphy at [97], by Lawson at [83] and by Moore at [84].
Whether the conduct of the defendants amounted to a breach of fiduciary duty, and what resulted from that breach, would have to be decided in respect of each plaintiff. The same conceptual findings would need to be made for all plaintiffs even though the quantum of any damages for each would be different. The risk of inconsistent findings is such that it would be inappropriate to have the five proceedings heard separately.
Secondly, the present claims all arise from the fact that the defendants represented all of the plaintiffs in proceedings which themselves were heard together in the Federal Court. In those proceedings there were common questions for determination arising from the employment of the plaintiffs and how that employment came to an end after the merger of St George Bank with Westpac, although the precise employment arrangements of each of the plaintiffs differed from the others.
Thirdly, it is inconceivable that there would not be a saving in both time and cost if all five matters were heard in the one proceedings because evidence of events common to all proceedings would need only to be given once. That has a number of flow-on effects in terms of preparation time, court book production, cross-examination, opening and closing addresses, and a single judgment.
Fourthly, unlike some applications for proceedings to be joined, the present application is made not by the common defendant but by the plaintiff. Where the joinder application is made by the defendant (see e.g. Ghose v CX Reinsurance Company Ltd [2010] NSWSC 110), a relevant consideration is that a plaintiff (or more than one plaintiff) will be obliged to take part in a longer trial than would be the case if that plaintiff's proceedings were heard separately. The prejudice to that plaintiff is the additional time and cost where parts of the combined trial will not concern that plaintiff.
In the present case, the only parties who are prejudiced in that way are the plaintiffs themselves, but they are the parties seeking the joinder. The defendant cannot be prejudiced in that way because the defendant's involvement is in all aspects of the single trial or the multiple trials, whichever occurs.
A subsidiary matter in favour of the proceedings being heard together is that the present proceedings are at a similar stage of preparedness as the proceedings brought by the other plaintiffs.
I accept the point made by the defendants that each of the claims has issues peculiar to the particular plaintiff concerned. That is not a factor, when considered alone, which provides a basis for refusing to order proceedings to be heard together when the proceedings have some common factors and issues. Rule 28.5 is widely worded. The five proceedings involve a common question. The rights to relief arise partly out of the same transaction or series of transactions. On a broad view, the relief arises from the conduct of the defendants in acting for the various plaintiffs against Westpac. On a narrow view, it arises from the transactions that constituted the settlement negotiations in December 2011.
The defendants submitted that complex questions of the cross-admissibility of evidence would arise if all of the proceedings were heard together, and that in itself would lengthen the proceedings or, at least, would mean that the time and cost involved in one trial would not be much less than that involved in five trials. In my opinion, this issue of cross-admissibility of evidence is overstated. There can be little doubt that in a separate trial of the plaintiff's claims one or more of the other plaintiffs would be called, and indeed would need to be called on the issue of whether instructions were given to respond to the offer from Westpac of 15 December. Tendency notices might well be employed in a separate trial to justify evidence of similar events being given by the other plaintiffs. There may well be arguments about whether evidence was credibility evidence and whether it was admissible.
In criminal trials involving multiple defendants, juries are given instructions that some evidence cannot be used against one or more accused but can be used against others. Judges are presumed to be able to disregard inadmissible evidence against a party, and the correctness or otherwise of their rulings are apparent from both the transcript and in the reasons for their judgment. These sorts of evidentiary issues frequently arise and can generally be fairly readily dealt with.
The defendants pointed to forensic disadvantages that might arise at the close of the plaintiffs' case. It was suggested that the defendants' decision whether or not to call a witness or witnesses might be compromised by having to meet, in one trial, the evidence of a number of plaintiffs. I consider that this prejudice also is overstated, particularly in a case where allegations of negative propositions require answers from the defendants. Civil trials are no longer conducted by means of ambush. Witness statements or affidavits must be served in advance. Certainly, a defendant could choose not to call a witness if concessions were obtained from plaintiffs. A defendant's witness could be called for a more limited purpose than had previously been thought necessary. If there ceased to be any contest on an issue or issues, cross-examination on those uncontested issues would likely no longer be relevant and, therefore, not admissible: Evidence Act 1995 (NSW) s 56(2).
An order that evidence in one proceeding is to be evidence in another does not make evidence admissible which is otherwise inadmissible. For example, if tendency or coincidence was sought to be availed of, ss 97 and 98 of the Evidence Act would still need to be complied with. That matter will be made clear in the orders.
In my opinion, r 28.5 is easily satisfied on the present application. The advantages of hearing the proceedings together significantly outweigh the disadvantages. I do not consider an order that the proceedings be heard together prejudices the defendants. It will save them costs, perhaps significantly. It means that all five proceedings will likely be determined more quickly than if they were heard separately, and it reduces the real risk of inconsistent findings being made in separate proceedings. It is consistent with s 56 of the Civil Procedure Act 2005 (NSW) that the proceedings should be heard together.
[5]
Notice to Produce
There are two aspects to the notice to produce. The first concerns document (1) which is the settlement deed between Westpac and Mr Bechelli. The plaintiff submitted that the probative value of that document is that it goes to the willingness of Westpac to negotiate individually notwithstanding the terms of the letter from Allens Arthur Robinson of 15 December 2011.
The second aspect concerns documents (2) and (3), which are settlement deeds between the defendants and the two named claimants in relation to a costs settlement. Those documents are said to be potentially relevant to the availability and willingness of those individuals to give evidence. There was a suggestion, although it was not clarified, that those two persons have indicated an unwillingness to assist the plaintiff in giving evidence.
In relation to the deed with Mr Bechelli, the defendants submitted that the fact that there was a settlement with Mr Bechelli at some later time, perhaps in 2012, cannot assist in determining what if any individual offer Westpac made or might have made in December 2011, presumably, in the face of the letter of 15 December from Allens. The defendants submitted that if the plaintiff wants the evidence from that deed it could be obtained from other sources, perhaps, from Westpac. Counsel for the defendants took no point that the deed would be subject to any form of privilege, despite what had been said in correspondence.
In relation to documents (2) and (3), the defendants submitted that if Messrs Smith and Poulos declined to provide affidavits, it was available to the plaintiff to subpoena them to give evidence. What was contained in the deeds, the defendants submitted, could not be relevant to any evidence that could be led from those persons or, indeed, to whether they would give evidence. The defendants submitted that there was a privilege issue with these documents because both Mr Poulos and Mr Smith were claiming privilege over the terms of those deeds.
In my opinion, document (1) is capable of having relevance to the issue of whether Westpac would have settled with an individual plaintiff even if the other claimants did not settle with Westpac. If there are issues relating to the confidentiality of the amount of the settlement with Mr Bechelli, that issue can be dealt with. The significant matter is the fact of a settlement and not the amount of it. Document (1) should be produced.
As to documents (2) and (3), I do not understand how production of those documents throws any light on the issue of Messrs Poulos and Smith giving evidence or what evidence they might give. If they have declined to provide affidavits it is open to the plaintiff to subpoena them to give evidence. A settlement those persons reached with the defendants concerning their costs does not appear to be relevant to any evidence that they could give in relation to the matters in the pleadings. The notice to produce should be set aside insofar as it requires production of documents (2) and (3).
[6]
Conclusion
I make the following orders:
1. I order pursuant to UCPR r 28.5 that the present proceedings be heard together with proceedings 2017/352141, 2017/170694, 2017/346984 and 2017/370856.
2. The evidence in each of the proceedings is, subject to the rules of evidence, evidence in the other proceedings.
3. The defendants are to pay the plaintiff's costs of the motion.
[7]
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 13 December 2018