Consideration
22 This Court has wide powers with respect to case management, as reflected in Part VB of the Federal Court of Australia Act 1976 (Cth) (Act) and provisions such as s 37M, s 37N and s 37P. Critically, s 37M of the Act requires that the powers and duties under the civil practice and procedure provisions of the Act and the Rules be exercised in a way that best promotes the overarching purpose of the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible.
23 The key consideration militating in favour of standing over the Transfer Applications pending the hearing of the Amendment and Joinder Application is the overlap between the issues raised in the Federal Court Proceedings (on the most recent concise statements filed by the parties) and the matters pleaded in the proposed ASOC. In determining the Transfer Applications, I will be required to have regard to a range of factors, including (but not limited to) the efficient use of judicial resources, the likelihood of contrary findings of fact arising from the same material, and the likelihood that costs can be minimised: The President's Club Limited v Palmer Coolum Resort Pty Ltd [2019] QSC 209 at [148(2)]. Each of these factors directs attention to the extent of overlap between the cases pursued in this Court and in the VSC. It is difficult to properly assess this overlap without knowing whether the plaintiffs will, in the Supreme Court Proceeding, be granted leave to pursue the claims foreshadowed in the ASOC, and whether they will be granted leave to join UP - the second applicant in the Federal Court Proceedings - as a defendant in the Supreme Court Proceeding. That uncertainty will be resolved following the determination of the Amendment and Joinder Application.
24 It is apparent from the written submissions filed on the Transfer Applications by the respondents and the applicants that the outcome of the Amendment and Joinder Application is a consideration relevant to the Transfer Applications. The respondents' submissions emphasised that if leave to file the ASOC is granted in the VSC, the parties in both sets of proceedings will be identical with the exception of one party, who is not a party to the proceedings in this Court: Outline of Submissions dated 11 April 2023 at [7]. The respondents' submissions further emphasised the extent of overlap between the matters pleaded in the ASOC and the issues in dispute in the Federal Court Proceedings, in particular, the Istanikzai Proceeding: Outline of Submissions dated 11 April 2023 at [12], [15]. Notably, the applicants' submissions on the Transfer Applications did not appear to contest the respondents' submissions that there will be overlap between the issues in both sets of proceedings if the Amendment and Joinder Application succeeds. Instead, the applicants submitted that the Federal Court Proceedings are much narrower than the issues in the Supreme Court Proceeding: Outline of Submissions dated 26 April 2023 at [47]. The applicants also submitted that the additional parties and claims included in the ASOC were intended to make the Supreme Court Proceeding "more similar" to the Federal Court Proceedings: Outline of Submissions dated 26 April 2023 at [48].
25 As set out above, the applicants' have contended that, if this Court, proceeded to hear the Transfer Applications on 1 June 2023, and dismissed those applications, it remained open to the plaintiffs to bring further transfer applications if they were subsequently successful on the Amendment and Joinder Application. In my view, this is a consideration which weighs in favour of standing over the Transfer Applications. The determination of the Transfer Applications requires, amongst other things, a detailed analysis of the allegations in the Federal Court Proceedings and the Supreme Court Proceeding. Requiring the parties to litigate such complex applications before the determination of the Amendment and Joinder Application, and then permitting them to re-litigate a similarly complex application if the Amendment and Joinder Application succeeds, will be unnecessarily duplicative and result in the parties incurring unnecessary costs.
26 For the above reasons, it is appropriate to stand the Transfer Applications over pending the hearing of the Amendment and Joinder Application.
27 Nonetheless, the applicants have contended, with some force, that this Court ought to guard against the risk of the Federal Court Proceedings stalling. Given this, I consider it appropriate to require the parties to attend a further case management hearing after the hearing of the Amendment and Joinder Application. With the benefit of knowledge about what transpired at the Amendment and Joinder Application hearing, the Court will be in a better position to assess the parties' submissions as to the future conduct of the Federal Court Proceedings.