Plaintiffs v Defendants

Supreme Court of Victoria|2007-04-03|Before: BONGIORNO J

PRACTICE AND PROCEDURE - Pleadings - Application to lift stay of proceeding - Leave sought to file new statement of claim - Particularisation of conspiracy claim not necessarily required in statement of claim - Particulars not ordinarily required before defence required to be served - Leave granted to join claims - RSC r 13.11(2) - RSC r 9.02(b).

COSTS - Indemnity costs - Calderbank offer uncertain - Not unreasonable to reject offer.

For the Seventh, Eighth, Ninth, Fourteenth, Fifteenth, Sixteenth and Seventeenth Defendants

Mr M Dreyfus QC, Ms J Batrouney SC, Mr M Gronow and Mr C Thomson

1 In a proceeding commenced on 13 December 2004 the plaintiffs sued 17 individual and three corporate defendants alleging a number of different torts arising out of the alleged conduct of the defendants in opposition to certain business activities of the plaintiffs in the woodchip and associated industries. However, although two and a half years have elapsed since the commencement of the proceeding, very little has actually been achieved in having this dispute proceed towards resolution.

2 On 18 July 2005 the Court refused the plaintiffs leave to file an amended statement of claim (V2). It published reasons for that decision.[1] On 28 August 2006 the Court struck out a third version of the plaintiffs' statement of claim (V3). Again, reasons were published.[2]

3 Each of the plaintiffs' procedural problems which led to their statements of claim being not permitted to be persisted with could be said to have had their origin in attempts by the plaintiffs and those advising them to try to bring too many claims against too many people in respect of too many alleged torts. The result of this was that the various versions of their statement of claim were too complex, prolix and confusing - a state of affairs which, had it been permitted to continue, would have resulted in procedural confusion of a high order and enormous, perhaps insuperable, difficulties at trial.

4 The striking out of V3 was accompanied by a stay of the proceeding. The application with which this judgment is concerned is one to lift that stay to allow the proceeding to continue.

5 In accordance with the Court's order of 28 August 2006, late in that year the plaintiffs produced three proposed new statements of claim, effectively splitting their case into three distinct parts. However, this technique of simplifying the proceeding was not persisted with so that eventually one new statement of claim (which may now be conveniently referred to as V4) was produced. It is Exhibit RAM4 to the affidavit of Richard Alan Mereine sworn 6 February 2007. By the time the application to lift the stay was heard on 27 February 2007 it was proposed that, as well as this proceeding, a new proceeding would be instituted in respect of a defamation claim limited to one defendant, Frank Nicklason, to avoid having that claim joined with the substantive claim in V4, which generally concerned economic torts arising out of specific actions by various of the defendants. The defamation claim arises out of comments allegedly made by Nicklason concerning a woodchip pile maintained by the first plaintiff in Burnie in north-western Tasmania.

6 V4 pleads claims against only 15 of the original defendants. It omits the claims which caused many of the principal problems in V1, V2 and V3. Those claims were claims in respect of business losses allegedly suffered by the plaintiffs in respect of their Japanese business interests, some claims arising out of various alleged defamations and associated torts and, most importantly, a claim in respect of an overarching conspiracy involving a large number of defendants who, it was alleged, waged a "campaign against Gunns". This claim attempted to characterise virtually all of the defendants' activities as being in furtherance of one extensive conspiracy.

7 The recasting of the plaintiffs' claims in this way means that defendants numbered 10, 11, 12, 18 and 20, that is to say, Robert Brown, Margaret Putt, Helen Gee, Peter Pullinger and Doctors for Native Forests Inc. are no longer to be the subject of claims in this proceeding. As the text of V4 avoids reference to defendants by their ordinal position in the title to the proceeding, confusion between references in this pleading and those in V1, V2 and V3 is generally avoided.

8 From the commencement of the proceeding the plaintiffs have alleged tortious conduct against the defendants arising out of events which are said to have occurred at four of the first plaintiff's forest operation sites in Tasmania. Although pleaded quite differently in earlier versions of the statement of claim, these five separate events always formed part of the plaintiffs' case against the defendants. They are alleged to have occurred at Triabunna in 2003 and 2004, at Lucaston in about May 2003, at a coupe in the Styx Forest in about November 2003 and at Hampshire. These events now constitute the entire factual basis of the plaintiffs' claim articulated in V4. They are pleaded in the following order in the paragraphs designated:-

Each of these separately pleaded claims alleges facts which, it is said, give rise to torts for which the plaintiffs claim damages and injunctive relief to prevent recurrence. Each of the claims appears to be confined to its own pleaded facts so that it would probably be possible, as the plaintiffs submit, to try each claim separately or various of them in groups in any convenient combination.

The remaining defendants' position with respect to V4

9 The defendants' positions with respect to the plaintiffs reviving its claims against them by the filing of V4 and their arguments in respect of those positions can be conveniently dealt with by reference to the groups into which they fall by reason of their legal representation.

10 Whilst the 5th defendant Heidi Douglas concedes that V4 pleads a valid cause of action against her, she and the 1st, 3rd and 4th defendants - Alexander Marr, Russell Hanson and Leanne Minshull - all submit that the plaintiffs should be refused leave to file and serve V4.

11 Hanson and Minshull argue that as neither of them is alleged to have actually committed any tortious act comprising the Styx claim (the only claim in which they are said to be implicated) they can only be liable if those who did commit torts, did so acting in concert with them. They submit that the pleading is deficient in particulars such that it should not be permitted to be filed against them.

12 The plaintiffs answer these criticisms by reference to a number of authorities which make it clear that joint liability in tort can be established in a number of different ways and that the necessary connection between the defendant and the tort can arise by inference. They quote the classic statement of Isaacs J on this topic in the Coal Vend Case.[3]

13 The proposed pleading makes allegations of fact against Marr, Hanson and Minshull which, if proved along with other necessary material facts, establish liability on their part. If there are any deficiencies in the pleading, and that is by no means certain, they are deficiencies in particulars. In a case of this nature the authorities make it clear that a plaintiff might reasonably be expected to be unable to give precise particulars of material facts sufficient to establish its cause of action by reason of the very nature of the transactions it is attempting to prove. The cases referred to above support such a position, as does the judgment of Drummond J in State of Queensland v Pioneer Concrete (Qld) Pty Ltd[4] referred to in Gunns Limited v Marr,[5] the first case in which the plaintiffs' claims were considered. A determination as to whether proofs offered by the plaintiffs in respect of the allegations they make against Marr, Hanson and Minshull (and, for that matter, Douglas as well) will permit the necessary inferences, must await a trial. It may be that after interlocutory processes are completed, the plaintiffs will be able to supplement the particulars of their claims already provided. However, whether or not this is so, the plaintiffs' pleading is satisfactory for its purpose and, subject to any other relevant considerations, should be permitted to go forward against Marr, Hanson, Minshull and Douglas.

The 7th, 8th, 9th, 14th, 15th, 16th and 17th defendants' position

14 The defendants Adam Burling, Louise Morris, Simon Brown, Lou Geraghty, Neil Funnell, Brian Dimmick and Huon Valley Environment Centre Inc. do not contend that V4 does not disclose causes of action against them. Rather, they submit that the claims against them are inadequately particularised. For example, they complain that a defendant who is alleged to have agreed to certain things at a meeting cannot respond to that allegation if he is not given particulars of the date and place of the meeting and details of what he is alleged to have said or done.

15 RSC r 13.11(2) provides that the Court should not ordinarily order particulars before a defendant is required to plead to a statement of claim. This rule exists for good reason. Often a defendant knows more about the facts of a case than a plaintiff does, particularly, perhaps, in cases of this nature. A defendant can plead to an allegation, provided it is clearly articulated, without necessarily knowing its precise details. By doing so at least the broad issues for trial and the scope of interlocutory process may be defined.[6] The Court, at this stage of the proceeding, is concerned with defining the issues between the parties in the broad sense. There is no injustice to the defendants in requiring them to plead to properly articulated allegations in a statement of claim before they are given such further and better particulars of those allegations as they might be entitled to, either before or after interlocutory process.

16 These defendants also submit that the five causes of action pleaded in V4 should not form part of the same proceeding. They say that there is now no legitimate forensic or legal reason for these claims to be heard together since each depends on "stand alone" factual allegations.

17 Whilst it is true that the five claims now included in V4 are no longer linked by alleged overarching conspiracies, which allegations bedevilled earlier versions of the plaintiffs' statement of claim, the defendants who contend that the filing and serving of V4 should not be permitted because of inappropriate joinder of claims advanced no substantial reason for taking that position. Their complaints are, in effect that the joinder of these five claims in one proceeding will inevitably lead to increased complexity, cost and delay. But should these consequences in fact result, there is ample power in the Court to make appropriate remedial orders, including orders for costs against the plaintiffs to ensure that no defendant is disadvantaged by joinder of the five claims together. As V4 now stands the allegations against each defendant can be dealt with by him or her without the necessity of his or her being concerned with other parts of the pleading. Ample discretionary power exists in the Court to make any appropriate procedural orders, whether pursuant to RSC r. 9.04 or otherwise, when and if it becomes appropriate to do so. Such orders could be made concerning the trial of individual claims or the trial of common issues of fact which may well arise in respect of all claims. Any such orders can be made at an appropriate time either with or without application by one, some or all of the defendants - or even the plaintiffs.

18 The plaintiffs seek an order pursuant to RSC r 9.02(b) that the Court give leave to join the five claims pleaded in V4 in the one proceeding. Having regard to the nature of the whole proceeding it may well be that leave is not required. There would appear to be common issues of fact concerning the plaintiffs' businesses and the way in which their operations are conducted which will be relevant to all of the claims. However it is a barren exercise to embark upon an analysis of the case merely for the purpose of determining whether leave is or is not required. In the circumstances it is appropriate that the plaintiffs be given leave pursuant to RSC r 9.02(b). Such leave can, of course, be revoked at any time if it becomes inconvenient or productive of injustice or prejudice to any party for the claims to continue to be joined.

19 The position of the 2nd and 6th defendants, Geoffrey Law and the Wilderness Society Inc., is that the proceeding should be broken up into its composite parts and that the defendants should not be required to plead to any claim against them until after further and better particulars of those claims have been sought and supplied.

20 For the reasons already given, whilst there is some force in the submissions of those defendants who oppose the continued joinder of the plaintiffs' five claims in one proceeding, it is appropriate, at this stage, for the proceeding to continue as formulated in V4. Any application for remedial relief whether pursuant to RSC r 9.04 or otherwise can be made if and when the circumstances warrant.

21 Again, for the reasons already advanced, it is not appropriate for the plaintiffs to be required to provide further and better particulars of V4 before the defendants are required to file and serve defences.

22 As the plaintiffs have repleaded their case in V4 in a satisfactory way against 14 of the original 20 defendants it is appropriate that the stay of this proceeding imposed by the Court on 28 August 2006 be lifted, that the proceeding continue by the filing and serving of a statement of claim in the form of V4, that the title to the proceeding be amended to delete those persons against whom no allegations are made in V4, and that there be procedural orders and a timetable set down for the further conduct of the proceeding. With respect to the defences to be filed and served, confusion in the proceeding will be minimised if each defendant files and serves a separate defence, pleading only to those facts alleged against him, her or it. The joinder of defences of more than one defendant in one document is apt to cause unnecessary confusion, particularly where there are a large number of defendants still in the proceeding. An order will be made to facilitate this being done. It should also be noted that as the filing and serving of V4 now is, in effect, an amendment of the plaintiffs' pleading the costs consequences of such amendment provided by RSC r 63.17 will follow as a matter of course.

23 In V1, V2 and V3 the plaintiffs brought a claim in defamation against the 19th defendant, Frank Nicklason, in respect of statements he allegedly made concerning a woodchip pile maintained by the first plaintiff at Burnie in north-western Tasmania. The plaintiffs now propose that that claim should be removed from this proceeding and pursued separately in another proceeding brought specifically for the purpose. It is proposed, at least in the first instance, that the new proceeding be brought in this Court. The plaintiffs put forward a form of statement of claim for that proceeding being Exhibit RAM3 to the affidavit of Richard Alan Mereine sworn 2 November 2006. It does not appear to be contended that that statement of claim does not appropriately plead a defamation claim against the 19th defendant.

24 The 19th defendant submits that the plaintiffs should be permitted to discontinue this proceeding against him only on condition that they pay his costs taxed on an indemnity basis. The plaintiffs for their part submit that the 19th defendant's costs should be costs in the cause in the new proceeding.

25 The 19th defendant also argues that this Court has no jurisdiction to deal with the claim where the tort has no connection to Victoria. This submission is misconceived as is that of the plaintiffs that jurisdiction to entertain this claim is derived from the Jurisdiction of Courts (Cross Vesting) Act 1987 (Tas). The Court's jurisdiction to entertain a claim, as with any court whose jurisdiction is not constrained by geographical or monetary limits, is defined by the legal capacity of a plaintiff to serve the Court's originating process: Laurie v Carroll.[7] No question of jurisdiction arises here. Where the plaintiffs commence any new proceeding is entirely a matter for them. They may choose to do so in this Court or in any other court of competent jurisdiction. However, their discontinuance of this proceeding against Dr Nicklason carries costs consequences. It is not appropriate that those costs be simply "costs in the cause" in the new proceeding. There must be some doubt as to the efficacy of an order in one proceeding affecting the exercise of a costs discretion, perhaps even by a different court, in another proceeding.

26 In the circumstances it is appropriate that the plaintiffs be given leave to discontinue this proceeding against Dr Nicklason and that they be ordered to pay his costs. However, those costs should be taxed on the ordinary basis, not on an indemnity basis. There is no reason demonstrated for a costs award on an indemnity basis.[8]

27 Should the plaintiffs institute a new proceeding against Dr Nicklason, whether in this Court or elsewhere, the question of costs of that proceeding will be a matter for the court hearing it. That court's discretion will undoubtedly include the capacity to take into account the fact of the discontinued proceeding and the order for costs which followed that discontinuance in determining an appropriate order for costs in the new proceeding. It must be left to that court to exercise its costs jurisdiction in a manner consistent with justice. It would be inappropriate for this Court to seek to fetter that discretion by making an order now which affected how costs might be awarded in the new proceeding.

28 Finally, with respect to Dr Nicklason, should he wish to contend that the claim against him should proceed in the Supreme Court (or any other court) of another State, he is, of course, at liberty to bring a cross-vesting application in this Court for an appropriate order.

Costs of other defendants against whom the proceeding is not to continue

29 As well as discontinuing their claim against Dr Nicklason, the plaintiffs do not propose to proceed against the 10th, 11th, 12th, 18th and 20th defendants. They seek dismissal of their claims against those defendants without adjudication on the merits and propose that they be ordered to pay those defendants' costs taxed on the ordinary party/party basis.

30 With respect to the 20th defendant, all issues have been resolved and an order has been made. Accordingly there is no need for the Court to be concerned further with Doctors for Native Forests Inc.

Costs of the 10th, 11th and 12th defendants

31 On 5 April 2005 - some four months after the proceeding was commenced - the solicitors for the 10th, 11th and 12th defendants wrote to the plaintiffs' solicitors on behalf of the 10th and 11th defendants offering to compromise the claims against these defendants on terms that the plaintiffs pay half of those defendants' taxed costs and discontinue the proceedings against them. On 12 April a similar offer was made on behalf of the 12th defendant.

32 Each of these approaches were rejected by the plaintiffs.

33 The plaintiffs now seek to discontinue this proceeding against these three defendants on terms that it be dismissed as against them without adjudication on the merits and that the plaintiffs pay the defendants taxed costs of the proceeding. The three defendants submit that having regard to the letters written on their behalf in April 2005, they should receive those costs on an indemnity basis.

34 The 10th, 11th and 12th defendants filed a lengthy submission as to how the claims against them should now be disposed of. They seek judgment against the plaintiffs because they say that the plaintiffs have effectively capitulated as against them and they seek their costs taxed on an indemnity basis.

35 Instead of seeking the orders that they do, the plaintiffs could have discontinued their claims against these defendants by simply filing a notice of discontinuance pursuant to RSC r 25.02(2)(b). The filing of this notice would have entitled the relevant defendants to their costs taxed up until the time of that filing pursuant to RSC r 63.15. Such withdrawal would not have barred any future claim upon any cause of action so withdrawn. The plaintiffs' now application amounts to the same thing. This is why the defendants seek judgment rather than a dismissal of the proceeding without adjudication on the merits.

36 But all of this is mere semantics. There has been no adjudication on the merits, nor will there be. There will be no legal bar to the plaintiffs raising claims (even the same claims) against these defendants in future, unless the Court, for appropriate reason, was to bar the bringing of any further proceeding on the same causes of action. But there is no basis for doing that here. On the other hand, if the plaintiffs did bring a fresh proceeding on the causes of action now discontinued, they may be met by a stay application which would have some chance of success - but it is fruitless to engage in speculation. The plaintiffs say they wish to desist from suing these defendants. There is no reason to believe that they would try to reinstitute the same claims at a later time.

37 Although the defendants are correct in describing the plaintiffs' application as a capitulation, there is no injustice in the proceeding being terminated as against the 10th, 11th and 12th defendants by the Court ordering that it be dismissed as against those defendants without adjudication on the merits.

38 On the issue of costs the plaintiffs argued that their rejection of the offers made by the 10th, 11th and 12th defendants to settle this proceeding early in the litigation did not constitute an appropriate basis for an award of indemnity costs. They pointed to the short period for which the offers were open (seven days), the term that they provide an indemnity to the defendants "from all claims whatsoever arising from the subject of the claim" and the fact that the offers were responded to in not inappropriate terms, as being reasons why indemnity costs should not be awarded. They also point to the fact that the defendants were unsuccessful in applications for indemnity costs with respect to the disallowance of V2 and V3 by the Court.

39 The plaintiffs also referred to two decisions of single judges of this Court which dealt with the issue of costs in the context of offers where a defendant was prepared to bear his own costs.[9] They argued that notwithstanding the defendants' offers to compromise the proceeding at an early stage, no occasion has arisen for the award of indemnity costs.

40 Each of the above matters is, in the context of this case, of little significance apart from that relating to the release and indemnity which the defendants sought. Whilst a release is a not uncommon concomitant of the settlement of litigation and an indemnity may sometimes be provided where the circumstances of the case require it, in this case the request for an indemnity in respect of claims arising from the subject matter of the action makes little sense and renders the offer made by the defendants difficult to understand. To what claims would such indemnity relate? What did the defendants mean by their being indemnified? Do they expect claims to be made by third parties against them which the plaintiffs would be required to meet as their indemnifiers if the proceeding was settled on the basis of their offer? Unanswered, these questions make the defendants' offer difficult to comprehend.

41 The uncertainty introduced into these offers by the reference to an indemnity is such as to rob them of any efficacy as a basis for an award of indemnity costs. It is fundamental that for an unaccepted offer to form an appropriate basis for an award of indemnity costs it must be capable of forming a binding agreement by its acceptance. The rejection of an uncertain or ambiguous offer is not unreasonable. Such rejection cannot form an appropriate basis for an award of indemnity costs.

42 In the circumstances the plaintiffs will be ordered to pay the 10th, 11th and 12th defendants' costs taxed on the usual party/party basis.

43 The plaintiffs seek similar orders with respect to the 18th defendant as they did with respect to the 10th, 11th and 12th defendants. The 18th defendant for his part seeks the same orders as did the 10th, 11th and 12th.

44 With respect to the claim itself the 18th defendant seeks that it be dismissed. He opposes the formula proposed by the plaintiffs. His arguments are similar to those put by the 10th, 11th and 12th defendants and, for the same reasons, should be rejected. The claim against the 18th defendant will be dismissed with no adjudication on the merits.

45 The 18th defendant also seeks an order for indemnity costs. He relies upon a Calderbank letter written by his solicitors on 1 February 2006, about 14 months after the proceeding was commenced. That letter, after canvassing the merits of the claim from the 18th defendant's point of view, sets out an offer by which the 18th defendant was prepared to compromise the action. That offer was to the effect that he would bear his own costs (other than costs to which he was already entitled by order) in return for the plaintiffs withdrawing the proceeding against him and releasing him from all claims arising from any of the versions of the statement of claim filed or sought be filed prior to the date of the letter.

46 After seeking an extension of time to reply, on 15 February 2006 the plaintiffs' solicitors wrote a lengthy letter to the 18th defendant's solicitors to which was attached some 40 odd pages of documents. The letter tendentiously argued the plaintiffs' case in detail against the 18th defendant, sought a further extension of time to consider the 18th defendant's offer and raised a problem concerning the width of any release which would follow the plaintiffs' acceptance of it. Although there were further letters exchanged between solicitors concerning a possible compromise of the action, the 18th defendant's offer was never accepted.

47 The plaintiffs contend that they should not be liable for the 18th defendant's costs on other than a party/party basis. They argued that their rejection of the 18th defendant's offer was not unreasonable having regard to the circumstances, including the fact that their subsequent correspondence engaged with the offer, the offer excluded a great proportion of the costs which had already been awarded in the 18th defendant's favour and the fact that the 18th defendant had made an earlier offer on different terms.

48 Regardless of what might be able to be said about the general circumstances which surrounded this litigation as at February 2006 and whatever might have been the strengths or otherwise of the plaintiffs' case against the 18th defendant, the fact is that they now seek wholly to withdraw that case by permitting its dismissal without adjudication. They accept that they must pay the 18th defendant's costs. On any view that is a worse position than that which would have been achieved by acceptance of the 18th defendant's offer, even if it is now difficult to determine with any precision the extent to which the 18th defendant was offering to compromise the claim against him by his solicitor's letter of 1 February 2006. The plaintiffs' raising of a complication related to joint tortfeasors in their reply to the 18th defendant's solicitor's letter is an irrelevant distraction. The offer made on behalf of the 18th defendant was that the proceeding against him be withdrawn and he be released from any claim. It was a simple offer, the acceptance of which would have put an immediate end to the plaintiffs' proceeding against him.

49 The legitimate forensic purpose of a Calderbank letter is to put the recipient of it at risk on costs should it be unreasonably rejected in circumstances where the recipient eventually fails to achieve as good a result in the litigation as he could have achieved by acceptance of his opponent's offer. That purpose should not be allowed to be frustrated by the recipient of such an offer creating tendentious correspondence with his opponent or raising issues which would not affect the efficacy of a settlement agreement were it to come into effect by a simple acceptance of the offer put. The overall question is whether the party rejecting such an offer has acted reasonably. That question and the determination of its answer should not be clouded by extraneous and irrelevant considerations. Although the rejection of a Calderbank offer does not lead automatically to an order for indemnity costs, where the offer is not bettered by the result achieved, and where that rejection is unreasonable, that will be the usual result.[10]

50 Having regard to the fact of the plaintiffs' now capitulation with respect to their case against the 18th defendant, the offer made by the 18th defendant's solicitor to compromise this action on 1 February 2006 ought to have been accepted by the plaintiffs. Accordingly, in accordance with the principles in Calderbank v Calderbank[11] the plaintiffs should be ordered to pay the 18th defendant's costs on an indemnity basis from the date of that offer. As the 18th defendant has been the recipient of a party/party costs order against the plaintiffs since 1 February 2006, the order for indemnity costs of the proceeding must also include the difference between indemnity costs and the party/party costs previously ordered to be paid.

51 As already determined the plaintiffs must pay the 19th defendant's costs on the usual party/party basis. The question of costs in any other proceeding instituted by the plaintiffs or any of them against the 19th defendant in this Court or any other court will be the subject of the costs discretion which resides in that court. That court may (and probably would) take into account the fact that the 19th defendant has already received, on a party/party basis, an award of costs in respect of this cause of action. It would be likely that a court determining costs would consider that that, at least in part, compensated the 19th defendant should it be awarding costs in his favour.

52 Because of their delinquency in failing to plead their case satisfactorily on earlier occasions, this proceeding was stayed. In those circumstances it would appear appropriate that the plaintiffs generally pay the defendants' costs of this application to lift that stay and file and serve a new statement of claim.

53 In the case of those defendants (except the 18th defendant) against whom the proceeding is to be dismissed, they should bear their own costs having regard to their failure to obtain a costs order greater than that which the plaintiffs were prepared to concede. The 18th defendant should have his costs of the application on an indemnity basis, having succeeded in obtaining his costs of the proceeding on that basis.

54 However, having regard to the fact that these issues have not been debated should the plaintiffs or any defendant wish to contend otherwise than as outlined they should have an opportunity to do so. There will be an order against the plaintiffs in favour of the defendants for such costs made without further appearance or argument on 11 May 2007 unless any party gives notice to any relevant opposite party and the Court that he or she wishes to argue the point. In that event a time will be fixed for that argument to be heard.

That the stay of this proceeding imposed by the Court on 28 August 2006 be lifted as from 3 April 2007;
That there be judgment for the 10th, 11th, 12th, 18th and 19th defendants against the plaintiffs without adjudication on the merits;
That the plaintiffs pay the costs of and incidental to this proceeding of the 10th, 11th, 12th and 19th defendants, such costs to be taxed as between party and party;
That the plaintiffs pay the costs of and incidental to this proceeding of the 18th defendant, such costs to be taxed on a party and party basis up until 1 February 2006 and thereafter on an indemnity basis, such costs to include the difference between indemnity costs and any party and party costs already awarded to the 18th defendant by any order made after 1 February 2006;
That the plaintiffs have leave to file and serve a statement of claim, designated Statement of Claim (Version 4), in the form of the draft statement of claim Exhibit RAM4 to the affidavit of Richard Alan Mereine sworn 6 February 2007;
That the plaintiffs have leave pursuant to RSC r 9.02 (b) to bring this proceeding in the form of Version 4 notwithstanding the joinder of a number of causes of action therein;
That the plaintiffs have leave to amend the title to this proceeding to omit therefrom the names of the 10th, 11th, 12th, 18th and 19th and 20th defendants and to re-order the names of the remaining defendants in accordance with the schedule attached to their statement of claim (Version 4);
That the plaintiffs serve this Statement of Claim (Version 4) on each of the remaining defendants' solicitors by noon on Thursday 5 April 2007;
That each defendant, individually, file and serve his, her or its defence by 4 May 2007;
That any requests for further and better particulars of the plaintiffs' Statement of Claim (Version 4) be served by 4 May 2007 and answered by the plaintiffs by 4 July 2007;
That any request for further and better particulars of the defence of any defendant be served by 4 June 2007 and answered by 4 August 2007;
That any other interlocutory step be taken in accordance with the rules or in accordance with an order of a Master;
That there be liberty to apply generally;
That the costs of all parties of this application be reserved until 11 May 2007 and then dealt with in accordance with these reasons for judgment.

[1] Gunns v Marr (No 1) [2005] VSC 251.

[2] Gunns v Marr (No 2) [2006] VSC 329.

[3] [1911] HCA 73; (1911) 14 CLR 387, 400. See also the Koursk [1924] P 140, 156 (Bankes LJ); Industrial Equity Limited v Commissioner of Corporate Affairs [1990] VicRp 68; [1990] VR 780, 785 (Crockett, Fullagar and Nathan JJ); Bateman v Newhaven Parks Stud Limited [2004] NSWSC 566; (2004) 207 ALR 406, 410-412 (Barrett J); Myer Stores Limited & Ors v Soo [1991] VicRp 97; [1991] 2 VR 597, 630-631 (McDonald J).

[6] See Ross v Blakes Motors Limited [1951] 2 All ER 689; Race Relations Board v London Borough of Ealing (No 2) [1978] 1 All ER 497.

[8] Gunns Limited v Marr (No. 3) [2006] VSC 386 and the cases therein referred to.

[9] Aljade & MKIC v OCBC [2004] VSC 351 (Redlich J) and Nolan v Nolan [2003] VSC 136 (Dodds-Streeton J).

[10] Berrigan Shire Council v Ballerini [2006] VSCA 65

Jurisdiction of Courts (Cross Vesting) Act 1987(Tas)

At a glance

Court

Decision date

Before

Source

Judgment (76 paragraphs)

Parties

Legislation Cited (8)

Cases Cited (3)