Carew-Reid v The Public Trustee, unreported; SCt of WA; Library No 950251; 26 May 1995

Malone v Great Northern Railway [1931] IR 1

This is an application by the plaintiff for the following orders:

"1. This action be listed and tried at the same time as actions CIV 2857 of 1991, CIV 2876 of 1991 and CIV 2863 of 1991 by the same judge.

2. At the trial of these actions, this action CIV 1417 of 1992 be heard first.

3. The evidence in CIV 1417 of 1992 be the evidence in each of actions CIV 2857 of 1991, CIV 2876 of 1991 and CIV 2863 of 1991.

4. The costs of this application be in the cause."

I have read the pleadings and heard the submissions of counsel and I am satisfied that the plaintiff's contentions are correct, that the orders sought should produce a significant saving of time and costs to the court and to the parties.

All four actions concern the same plaintiff, Spargos Mining NL, and the same defendant, Peter Geoffrey Jermyn. The actions have been discontinued or otherwise determined against the other defendants. They all concern the actions of Mr Jermyn as a director of the plaintiff company (Spargos). The King/King action, CIV 1417 of 1992, concerns events which took place between 20 May and 3 June 1988. The Karonie action, CIV 2863 of 1991, concerns events which took place in the same period, 20 May to 3 June 1988. The IRL action, CIV 2857 of 1991, concerns a single event - the purchase of some shares - which occurred on 26 April 1988. The fourth action, the Claremont action, CIV 2876, concerns various events which occurred between 22 June 1988 and 6 November 1989. It can be seen from this that the four actions cover events and decisions made by Spargos within a short period of time.

In terms of company events and the sums of money involved, the King/King and Claremont actions are major ones and the Karonie and IRL actions are smaller. The King/King action involves $15m, the Claremont action involves $24m, the Karonie action involves $2.3m and the IRL action involves $3m, all with interest. Of those two major actions the King/King action is the first in time.

The plaintiff in the King/King action has pleaded a number of events in great detail prior to the impugned decisions made by the company, and said to involve Mr Jermyn as a director between 20 May and 3 June 1988. There is a table of contents to this long pleading and it is difficult to summarise in a few lines. The pleading alleges that Jermyn was a director of Spargos from July 1979 onwards and at various times was the managing director of the company. He was also director of six other companies. In 1987 Spargos was taken over by Independent Resources Ltd (IRL) and new directors including Michael John Fuller and Sir Cecil Denniston Burney became directors and controlled the board of Spargos. Jermyn remained the only independent director of the board. Spargos at the time of the takeover had an excess of current assets over liabilities of $31.6m, of which $28m was cash. The takeover of the company by the IRL directors and a number of transactions which took place after IRL acquired the interest, it is pleaded, should have made Mr Jermyn wary of proposals put to the board to spend the cash of Spargos for the benefit of IRL. I accept the plaintiff's argument that the history of the takeover of Spargos by the IRL directors is relevant to all four actions and if these orders are made, that will only need to be proved once. I also accept Mr Mizen's argument, and it is apparent from the pleading, that those matters will be largely proved by documentary evidence.

Mr Mizen's estimate is that, if heard separately, the King/King action would take 30 hearing days, the Claremont action 30 days, the Karonie action 19 days and the IRL action 17 days. If heard together in the way proposed, the total time would be reduced to 30-35 days. Mr Mizen has had experience in running long commercial actions and I accept his views on this.

I should add that the proposed consecutive hearings of the actions has long been foreshadowed by the plaintiff in discussions and correspondence with the defendant's solicitors, hitherto without demur. Indeed Mr Peter Bogue, the solicitor who has represented the defendant in these actions for at least the last four years, in a letter dated 15 July 1994 to the Case Management Registrar expressed the view that the actions arose out of the same form of conduct and should be heard together or consecutively.

I disagree with the defendant's arguments that it is premature to make these orders or that one case should be run first, which would leave open the possibility that the other actions might be withdrawn or settled. That is a possibility I know and is one way of proceeding. The plaintiff has persuaded me that the method of consecutive hearings which he proposes will achieve substantial gains in court time and hence the saving of costs to the court and the parties and I propose to follow that. I propose to make the orders as asked, subject to an amendment to order 3 as asked in the chamber summons. The new order will read:

"3. Subject to any contrary order made by the trial Judge, the evidence in CIV 1417 of 1992 be the evidence in each of the actions 2857 of 1991, CIV 2876 of 1991 and CIV 2863 of 1991."