WALTHAMSTOW PTY LTD -v- CARATTI [2023] WASC 76 (16 March 2023)

1. The Walthamstow Actions were admitted to the Commercial and Managed Cases List (CMC List) in January 2023, on the application of the plaintiff in each action.
2. In the letter from the solicitors for the plaintiff to the court seeking admission to the CMC List, and as something of a precursor to the present applications, it was asserted on behalf of the plaintiff that there would be benefit in the three actions being case managed by one judicial officer throughout the life of the actions, to ensure they progress in lock step and, if appropriate, are ready to be heard together, should the Court propose to take that course.[4] The letter identified a number of matters of commonality between the actions and submitted that the claims and the defences 'ought to be ventilated before one judicial officer, and perhaps at the same hearing, so as to obviate any risk of there being inconsistent findings between the three actions'. Further, it was submitted that 'Case management of the three matters throughout their life, by one judicial officer in the CMC List, will best ensure that that can occur if they are to be determined at one hearing. Even if it is to be determined that they are not to be heard together, a determination about that can best be made by a single judicial officer in the CMC List who has case managed all three actions'.
3. Following admission to the CMC List, at a directions hearing before me on 24 January 2023, counsel for the plaintiff raised the appropriateness of the three actions being heard together, with evidence in each trial to be treated as evidence in the other actions.[5] At the conclusion of that hearing, I made orders requiring the parties to confer with respect to a range of issues, including as to whether orders of this nature should be made, with a view to agreeing a minute of proposed directions or having competing minutes of proposed directions available for the directions hearing on 2 March 2023.[6]
4. On 1 March 2023, the plaintiff filed and served a minute of proposed orders which formally sought orders for the Walthamstow Actions to be heard together, with evidence in each trial being treated as evidence in the other actions. However, conferral had not progressed sufficiently by the hearing on 2 March 2023, as a result of which I adjourned the Walthamstow Actions to a hearing on 10 March 2023 to allow further conferral to take place. I also directed that competing minutes and short submissions be filed for the purposes of that hearing.[7]
5. At the hearing on the afternoon of 10 March 2023, I heard submissions from the parties as to whether the actions should be heard together. The plaintiff was represented by Mr R J S French. The defendants in each action were represented by Dr J T Schoombee and Mr A P Rumsley.
6. While the plaintiff had not filed a formal application for the actions to be heard together, I treated the minutes of proposed orders filed by the plaintiff on 1 March 2023 and 9 March 2023, in the context of the letter from the plaintiff's solicitors dated 6 December 2022 seeking admission to the CMC List and the matters raised at the directions hearing on 24 January 2023, as constituting the application for the orders which were sought on 10 March 2023.
7. I indicated at the conclusion of the hearing I would reserve my decision and deliver reasons on the afternoon of 16 March 2023, with an advance copy available to the parties on 15 March 2023.
8. From the plaintiff, I have an outline of submissions dated 9 March 2023 and minutes of proposed orders in each action. From the defendants, I have an outline of submissions dated 9 March 2023, an affidavit of Ms Bazzo sworn 9 March 2023 (which was read at the hearing), and minutes of proposed orders in each action.
9. The defendants maintained that the orthodox position should hold, and that each action should be the subject of a separate trial. The outline of submissions proposed that actions CIV 3136 of 2019 and CIV 2283 of 2021 be heard first, in consecutive trials in November 2023, with the remaining action against Mr Caratti alone being deferred until 2024 (CIV 3016 of 2019). There was some movement from this position during oral argument (as to the possible order of the trials) but counsel for the defendants fundamentally maintained the primary position that the actions should not be heard together.

1. The parties are not seriously in dispute as to the relevant principles I should apply in determining the plaintiff's application. Their disagreement is as to the application of those principles.
2. It is clear that this court has the power to make an order that actions be heard together as an alternative to a formal order for consolidation, for which there is express power pursuant to Order 83 rule 1 Rules of the Supreme Court 1971 (WA) (RSC). The ability to make the order sought by the plaintiff emanates from the court's power to regulate its own procedures and through the express case management powers vested in the court: Norilya Minerals Pty Ltd v Easterday [2009] WASC 191 [65] (Le Miere J); Moondancer Holdings Pty Ltd v Navarac Pty Ltd [2011] WASC 250 [3] (Allanson J); Nelson v Thompson [2020] WASC 261 [18] (Smith J); and O 4A r 2 RSC.
3. An order concerning the joint determination of actions, such as is sought by the plaintiff, is a case management order and so the court must have regard to the terms of O 1 r 4A and r 4B RSC and follow the course that best ensures the attainment of the objects set out in those rules: Moondancer Holdings Pty Ltd v Navarac Pty Ltd [2011] WASC 250 [5] (Allanson J). The objects expressed in O 1 r 4B RSC are:

(a) promoting the just determination of litigation; and
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> (b) disposing efficiently of the business of the Court; and
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> (c) maximising the efficient use of available judicial and administrative resources; and
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> (d) facilitating the timely disposal of business; and
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> (e) ensuring the procedure applicable, and the costs of the procedure to the parties and the State, are proportionate to the value, importance and complexity of the subject matter in dispute; and
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> (f) that the procedure applicable, and the costs of the procedure to the parties, are proportionate to the financial position of each party.

4. Indeed, the Court of Appeal in Sino Iron Pty Ltd v Mineralogy Pty Ltd [2019] WASC 80; (2019) 55 WAR 89 [410] (Buss P, Murphy and Beech JJA) expressly noted the importance of these objects in the context of the construction and application of O 83 RSC. The sentiment expressed by the Court of Appeal is undoubtedly of equal application to the exercise of the power to determine whether actions should be heard together, as an alternative to formal orders for consolidation: Nelson [21] (Smith J).
5. Keeping the broader objects stated in O 1 r 4B RSC firmly in mind, it is next necessary to identify the types of factors which the court should consider in assessing an application such as the present. There is considerable support for the view that the factors typically applied in determining consolidation applications should be applied in this setting: Moondancer [6] - [7] (Allanson J); Espanol Holdings Pty Ltd v Banning [2000] WASC 192 [4] (Sanderson M); and Nelson [20] (Smith J). I intend to follow that approach and so will have regard to the following factors as a useful guide in exercising the discretion, as summarised by Beech J in Lois Nominees Pty Ltd v QBE Insurance (Australia) Ltd [2011] WASC 208 [81] and by Sanderson M in Saker v Creative Land Management Pty Ltd [2000] WASC 44 [2]:

(a) whether there are common questions of law or fact or a common transaction or series of transactions, of sufficient importance which renders it desirable that the whole of the matters should be disposed of at the same time;
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> (b) whether it is convenient to hear the actions together, including whether it will prevent a multiplicity of actions and ensure savings of time and cost;
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> (c) whether the court is satisfied it is unlikely to result in unfairness to any party, or to prejudice a party's ability to conduct their case;
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> (d) whether it will be conducive to a just resolution of the issues; and
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> (e) whether there are any relevant practical matters which may make it inexpedient to adopt this course.

6. I turn now to examine (under headings D and E below) the primary matters pleaded by the defendants in response to the claims, and the matters identified by the parties as being relevant to the plaintiff's application.

1. The defendants plead out defences, counterclaims and a set-off which have much in common across all three actions.[8] I have summarised these matters below. It is fair to say, by way of summary, that the plaintiff denies or joins issue with the vast bulk of the defences, the counterclaims and the set-off plea.[9]

1. Mr Caratti pleads in CIV 3016 of 2019, and both defendants plead in CIV 2283 of 2021, that a verbal representation was made by a representative of the plaintiff (namely, Mr Steven Masel) to the effect that interest payable on amounts advanced to the principal debtor would be compounded and capitalised.[10] The representation is alleged to have been made on separate occasions - in around August or September 2015 in the case of CIV 3016 of 2019 and in October 2014 in the case of CIV 2283 of 2021. The background pleaded by the defendants in support of the representation is very similar (concerning prior loans between the parties). I will refer to this representation as the Capitalisation Representation, using the styling adopted by the defendants.
2. The Capitalisation Representation is pleaded by the defendants as having several effects including (by virtue of the plaintiff's subsequent decision to issue, and conduct in issuing, a default notice) to constitute misleading or deceptive conduct or unconscionable conduct, contrary to the Australian Securities and Investments Commission Act 2001 (Cth) (ASIC Act) and the Corporations Act 2001 (Cth) (Corporations Act).
3. The Capitalisation Representation thus arises in two of the actions in a very similar context, with largely similar legal implications in each action, according to the defendants' pleadings.

1. Mr Caratti pleads in CIV 3016 of 2019, and both defendants plead in CIV 3136 of 2019, that a verbal representation was made by a representative of the plaintiff (again, Mr Masel) to the effect that the plaintiff would first exhaust its rights against the assets secured by the principal loans.[11] I will refer to this representation as the Enforcement Representation, using the styling adopted by the defendants.
2. The Enforcement Representation is pleaded by the defendants as having several effects including to operate as an estoppel and (by virtue of the plaintiff's subsequent decision to issue, and conduct in issuing, a default notice) to constitute misleading or deceptive conduct or unconscionable conduct, contrary to the ASIC Act and the Corporations Act.
3. The Enforcement Representation thus arises in two of the actions in a very similar context, with largely similar legal implications in each action, according to the defendants' pleadings.

Allegation: Interest clause is a penalty and unenforceable

1. The defendants in each of the Walthamstow Actions plead that the interest rates imposed by the plaintiff in the principal loan instruments were extravagant or exorbitant, and contend that the interest clauses constitute penalties and are unenforceable as a matter of law.[12] In each action, the defendants plead similar if not identical surrounding circumstances in support of the allegations that the interest clauses are penalties.[13]
2. The defendants observe that the interest rates imposed by the loan instruments in CIV 3136 of 2019 are different to the rates imposed by the instruments in the other actions. The difference in rates is not a significant matter, in my view. The core (and common) issue raised by the plea in each action is whether the interest rates are penal in nature.

Allegation: Failure or refusal to agree to refinance

1. Mr Caratti pleads in CIV 3016 of 2019, and both defendants plead in CIV 3136 of 2019, a complex series of facts which are said to constitute a counterclaim (in CIV 3016) and/or a set-off (in CIV 3136) in favour of the defendants.[14] The pleading is largely the same in both actions. In essence, the defendants plead that the plaintiff failed to execute a deed of assignment or to cause the assignment of securities to Private Funds Management Pty Ltd as part of a refinance proposal implemented by the defendants concerning what is described as the 'Holmes Street Subdivision'.
2. It is pleaded that the Subdivision had been progressed by Ms Bazzo in her capacity as a director of certain companies. The plaintiff's conduct is pleaded as being a breach of a loan agreement[15] and additionally, or alternatively, unconscionable conduct contrary to the ASIC Act.

1. The defendants in CIV 3136 of 2019 and CIV 2283 of 2021 plead a defence based on the principles expressed in Ankar Pty Ltd v National Westminster Finance (1987) 162 CLR 549.[16] In both actions, it is alleged that an extension of the principal loan agreement relied upon in each of those actions increased the potential liability under the guarantee instruments with the consequence that the guarantees were discharged.

1. In CIV 3136 of 2019, the defendants plead the existence of a verbal settlement said to have been reached in May 2022 between Mr Masel and Ms Bazzo.[17] The defendants plead that if they are liable to the plaintiff, the plaintiff is not entitled to recover unless pursuant to the terms of the settlement agreement.
2. This alleged settlement agreement is also referred to in the counterclaim pleaded in CIV 3016 of 2019 and so appears to arise as an issue in that proceeding as well. I should observe, though, that the pleading refers to the settlement as being in respect of CIV 2283 of 2021, rather than CIV 3136 of 2019.[18] This may well be a typographical error.
3. At all events, I surmise that evidence will need to be led as to the existence of the verbal settlement agreement in at least two of the three actions.

1. There are some matters pleaded which are peculiar to only one of the Walthamstow Actions. These were identified by both counsel during the hearing and in the outline of submissions filed by the defendants. The primary matters which fall into this category are described below.
2. First, the defendants highlight that the proceedings are brought by the plaintiff against Ms Bazzo in different capacities. Ms Bazzo is a guarantor in CIV 3136 of 2019 and one of the principal borrowers in CIV 2283 of 2021 (and in the latter proceedings, Ms Bazzo is identified as a trustee). The divergence in capacities is not a significant factor in the overall context of these actions, particularly where the same law firm and counsel represents Ms Bazzo in each action, and it is not suggested that Ms Bazzo's interests across the actions conflict in any meaningful sense.
3. Second, the defendants also emphasise the fact the loan facilities are secured over 'isolated and distinct residential property developments spread across metropolitan Perth'.[19] Counsel for the defendants amplified this issue during the hearing and referred to existence of different officers or managers involved in the different development projects. The disparate nature of the property developments does not present as a material factor which alters the essential nature of each action relative to each of the other actions. In my view, it is a point of difference between the proceedings which does not tell against the actions being heard together, but I accept that there may be evidence led from such project officers or managers which is relevant to individual actions only.
4. Third, an issue arises in CIV 3136 of 2019 arising from the assignment deed which is peculiar to that action. The assignment deed is pleaded by the plaintiff by way of its reply as being relevant to the interest rate penalty argument advanced by the defendants.[20] This appears to be a relatively confined issue in terms of its scope and its impact on the overall hearing time would be modest at best.
5. Fourth, in CIV 3136 of 2019, the defendants plead that the plaintiff entered possession of the secured property between October 2018 and September 2022, and thereafter returned the property to the possession of the second defendant (Ms Bazzo).[21] During this period, the defendants allege that the plaintiff breached its duties at law and engaged in unconscionable conduct contrary to the ASIC Act.
6. Fifth, in CIV 2283 of 2021, the defendants plead a counterclaim based on the alleged failure of the plaintiff to pay the final balance of the second drawdown to Ms Bazzo (to meet statutory costs in completing and issuing titles for the Hocking development). This conduct is said to have caused her loss and damage.[22] This aspect of the actions (and the fourth point referred to above) tend to point in favour of the actions being heard separately, being matters which each arise in only one of the actions (and are matters which need to be weighed against the competing factors).

1. The plaintiff and Mr Caratti are common parties to all three actions.
2. Ms Bazzo is a defendant in only two of the actions (CIV 3136 of 2019 and CIV 2283 of 2021). Ms Bazzo deposes in her affidavit that she is opposed to having the three actions listed concurrently.[23] In her affidavit, Ms Bazzo states:

I strongly oppose the listing, progression and hearing of all three matters concurrently, given that I am not a named party to proceedings CIV 3016 of 2019, which are between the Plaintiff and Allen Caratti.

1. It is correct that Ms Bazzo is not a named party in CIV 3016 of 2019. But her role must be examined in a more substantive sense. In my assessment, the following matters are relevant in this regard and demonstrate that Ms Bazzo is in truth no stranger to CIV 3016 of 2019:

(a) First, Ms Bazzo is expressly identified in the defence pleaded in CIV 3016 of 2019 as being the sole director and secretary of the eight companies named as relevant to the counterclaim.[24] In that capacity, Ms Bazzo is likely to be a material witness for the defendant in CIV 3016 of 2019 (i.e. for Mr Caratti) in support of the counterclaim.
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> (b) Second, the lawyers engaged by Ms Bazzo in the two actions in which she is a party are also conducting CIV 3016 of 2019. I infer from this that Ms Bazzo has at least some capacity to provide instructions to those lawyers to ensure her interests are protected in CIV 3016 of 2019.
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> (c) Finally, Ms Bazzo is the spouse of Mr Caratti and so there is a family connection between them.

2. More broadly, the three actions arise out of transactions which are similar in nature, concerning a relatively long-standing relationship between the parties as financier/debtor/guarantor. The transactions are loan facilities granted by the plaintiff in favour of companies associated with the defendants (and with Ms Bazzo herself in CIV 2283 of 2021), combined with security instruments including personal guarantees purportedly given by Mr Caratti in each of the actions and also by Ms Bazzo in CIV 3136 of 2019.
3. The commonality of the parties and the similar transactions point heavily in favour of the desirability of the Walthamstow Actions being heard together.

1. In addition to the commonality of the parties to the actions, there are striking points of commonality across each of the Walthamstow Actions in relation to the various defences which are pleaded by the defendants, and the counterclaim and set-off respectively pleaded in CIV 3016 of 2019 and 3136 of 2019. In turn, these similarities translate into similarity in the identity of the likely material witnesses in each of the actions (both non‑expert and expert witnesses).[25]
2. True enough the questions of fact and law across the actions are not wholly identical, but the proper approach to the plaintiff's application does not demand that such a high bar be cleared. The better approach is to ask whether there are common questions of fact or law of sufficient importance to the overall proceedings which would render it desirable that the whole of the matters should be disposed of at the same time. This requires a judgment to be made as to the centrality or significance of the common questions in the context of the overall body of issues which are likely to fall for consideration by the court in the trials of the actions.
3. The centrality or significance of the common questions is an appropriate focal point for the analysis because it provides direct insight to one of the broader issues that must be considered in any consolidation or joint hearing application. That is, the risk of inconsistent findings of fact being made by this court in multiple actions because the evidence presented in each action may not be the same, and the potential for the inconsistent application of the law to those findings if different judicial officers hear those actions. Where there is a risk of inconsistency on minor or less material questions, the balancing exercise may ultimately permit the orthodox separation of actions to be maintained. Where the risk pertains to central or significant questions, the policy dictates of avoiding that risk carry greater weight.
4. In the Walthamstow Actions, the pleadings have advanced to a sufficient degree to provide insight to the court as to the likely questions of fact and law which will arise at trial. The parties made competing submissions about these matters at the hearing on 10 March 2023.
5. As to the central questions of fact and law, the summary of the respective pleaded cases outlined earlier in these reasons strongly demonstrates the overlapping nature of those questions across each of the Walthamstow Actions. In my view, the most important matters of overlap or commonality are as follows (and all of which are, or are likely to be, central matters to the determination of the proceedings):

(a) First, whether the Capitalisation Representation was made by Mr Masel, the background which is pleaded in support of that representation, and the legal effect of the representation (if found to have been made) are matters which arise in two of the three actions (being CIV 3016 of 2019 and CIV 2283 of 2021).
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> (b) Second, whether the Enforcement Representation was made by Mr Masel, the background which is pleaded in support of that representation, and the legal effect of the representation (if found to have been made) are matters which also arise in two of the three actions (being CIV 3016 of 2019 and CIV 3136 of 2019).
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> (c) Third, whether the interest rate clauses are penal in nature and the background matters pertaining thereto, are matters which arise in all three of the actions. This aspect of the actions is likely to involve expert evidence, according to the submissions made by the parties at the hearing on 10 March 2023. I understand it is intended to adduce expert evidence on the relative quantum of the interest rates from a market and historical perspective. One can readily see the benefit of having these expert witnesses prepare a single report for the combined hearing (rather than three separate reports for each action), engage in one process of conferral with their counterparts, and testify only once at a combined hearing.
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> (d) Fourth, the series of facts which are said by the defendants to ground the allegation that the plaintiff failed to execute a deed of assignment or to cause the assignment of securities as part of a refinance proposal implemented by the defendants is strikingly similar, if not identical, in two of the three actions (being CIV 3016 of 2019 and CIV 3136 of 2019). These matters are also likely to be a factually intensive part of the proceedings when viewed in totality.
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> (e) Fifth, the pleading of a defence based on the principles expressed in Ankar arises in two of the three actions (being CIV 3016 of 2019 and CIV 2283 of 2021).
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> (f) Sixth, the existence of a verbal settlement agreement is pleaded in two of the three actions, although as I have noted above, it is unclear whether there is a typographical error in the counterclaim pleaded in CIV 3016 of 2019 (see [35] above).

6. While there are some differences between the issues raised in the actions, as already identified, the commonality of the critical questions of fact and law overwhelmingly points in favour of the desirability of the actions being heard together. This will avoid the risk of having inconsistent findings made by judges of this court on the same or similar issues if separate trials are required (particularly where those issues are central to the outcomes in the various actions).
7. Indeed, what can clearly be discerned at this stage of the proceedings is that the oral evidence of Mr Masel for the plaintiff, and the oral evidence of Mr Caratti and Ms Bazzo for the defendants, will be important features of the trials of each action. While the underlying transactions are borne out of written commercial instruments, the pleaded verbal representations which form part of the defences (being the Capitalisation Representation and the Enforcement Representation) will require close attention at trial, as too will the background relationship between the parties, and so the oral evidence of these witnesses will be significant. These matters also point to the desirability of a combined hearing.

1. I have very little doubt that the listing of the Walthamstow Actions for one combined trial is likely to result in overall savings of trial time, judicial time and legal costs for the respective parties, as well as a quicker resolution of all actions.
2. In reaching this conclusion, I have formed the view that the joint hearing of the three actions, and the simultaneous determination of the claims, the various defences, the counter-claims and the pleaded set-off, will almost certainly require far less hearing time than the consecutive hearing of the actions in back to back trials. There will be savings in time allocated for opening submissions, adducing non-expert evidence, adducing expert evidence, and closing submissions, through a combined hearing and overall efficiencies.
3. I do not discount the possibility that the alternative process of having a lead action heard and determined prior to the two other actions being heard[26] could result in some savings of time, in the sense that the litigants may refine or narrow their cases as each trial is heard. Trial counsel, the instructing solicitors and the clients may each be prepared to adopt more balanced positions, or may abandon arguments. The subsequent trials may simply be more efficiently prepared and run, given the experience the parties will have gained from the earlier trials. There may also be scope for the subsequent hearings to be avoided through settlement of the litigation, once the parties have 'had their day in court' on the first action, so to speak. Common sense and experience suggests to me that such eventualities do occur. However, it is difficult to speculate about the precise likelihood of such matters at this stage.
4. For my part, I would prefer to approach the matter on the firmer footing that the combined hearing of the actions will: (1) almost certainly require far less hearing time than consecutive hearings of the actions; (2) likely reduce the legal costs of the parties in the sense there is only one trial to get-up for, only one cross-examination process for each non-expert and expert witness, and of course a reduction in hearing time typically translates to lower costs; (3) minimise duplication and wastage of resources; (4) need the trial judge to prepare one set of reasons for decision dealing with all issues rather than three separate sets; (5) likely lead to an overall quicker time for the three actions to be concluded at trial; and (6) likely to minimise the risk of fragmentation of the litigation through potential appeals, which appeals might otherwise be brought at different times, in respect of each of the trial outcomes if they are heard one after the other.

1. The defendants submit that the possible tainting effect of evidence across the boundaries of each action points against both the joint hearing of the matters and/or the making of an order in which the evidence in one proceeding stand as evidence in the other actions. Counsel for the plaintiff described this concern as illusory.
2. Ms Bazzo deposes in her affidavit to her concern regarding the influence of evidence from a case in which she is not involved, albeit she does so in her affidavit in a generalised fashion. Ms Bazzo states:

I also oppose the related order that evidence in the one proceeding stand in the other cases. Evidence in a case in which I am not involved at all can then influence, also in a subtle way, the disposition of cases where I am involved - without there having been any cross-examination on my behalf. I say this based on my own previous experience with litigation.[27]

1. As I have earlier noted, it is not entirely accurate to suggest that Ms Bazzo is not involved at all in CIV 3016 of 2019. Ms Bazzo's companies are identified as being central to the counterclaim pleaded in that action and the same lawyers who act for Ms Bazzo in CIV 3136 of 2019 and CIV 2283 of 2021 act for the defendant in CIV 3016 of 2019. So, my assessment is that Ms Bazzo's interests will be capable of being adequately protected in CIV 3016 of 2019.
2. As to authority in support of their contention, the defendants refer to Sandes v Wildsmith [1893] 1 QB 711, 774 (Wills J) and Queensland Estates Pty Ltd v Co‑ownership Land Development Pty Ltd (No 2) [1971] Qd R 164 (Lucas J, Hanger and Hart JJ agreeing), in this regard. One can readily see from the facts in both cases how the issues of cross-contamination of evidence were determinative in each case. Lucas J described the matter as follows in Queensland Estates:

The learned judge in chambers took a number of matters into consideration. He was of opinion that the only 'common question of law or fact' (O3, r1; applied by judicial decision to joinder of causes of action against defendants under O3, r 5) in the actions was the question of damages, and that the cause of action against the first and second defendants was of a character very different from those against the third defendant, with the result that much of the evidence adduced would be irrelevant and therefore inadmissible in the case against the third defendant. This was of particular importance in an action for damages for fraud, in which the evidence of fraud on the part of the first and second defendants might well have a prejudicial effect upon the case against the third defendant, against whom no fraud was alleged. Further, again a matter of importance in a fraud action, the strength or weakness of the case against one defendant could well affect the case against the other.

In my opinion the learned judge was manifestly right in taking these matters into account, and no ground whatever has been shown for disturbing his decision. I would only add that really the case against the third defendant is of a very simple character; as it seems to me, all that it would be necessary for the plaintiff to prove would be the instructions, the defendant's lodgment of the transfer for registration in breach of them, and the value of the land.

I am unable to understand why it should be thought to be in the interests of justice that such issues should be clouded and confused by being tried together with grave allegations of fraud against other parties.[28] (emphasis added)

1. In Sandes, the proceedings were brought in the English High Court, for slander. The two plaintiffs alleged one of the defendants had published several separate and distinct slanders, imputing acts of larceny, with some slanders alleged to have been spoken of the first plaintiff only and some in respect of the second plaintiff only. The learned judge at first instance concluded that the separate causes of action had been improperly joined in one action and set aside the writ. On appeal, the order was varied by Wills J (with Lawrance J agreeing) to allow the plaintiff to elect which of the claims it would maintain, rather than simply set aside the entire writ. The case was not one in which consolidation or joint hearings were sought by a party - rather Wills J used the test for consolidation as a proxy in his analysis. Wills J held:

It seems to me not a bad test to ask whether, if two separate actions were brought in such a case as this, an order for consolidation would be made. I am of opinion that no Court would consolidate such actions. They are separate claims by different plaintiffs in respect of different slanders. Mr Hextall suggests that it would be convenient to allow these claims to be joined. One feels inclined, in answer to that suggestion, to ask whether convenient to the plaintiffs or convenient to the defendants. It would generally be convenient to the plaintiffs, for there may be a good case as to one claim and a bad case as to another, and the strength of the good case would be more likely to help the bad one than vice versa. Further, there might be evidence legitimately admissible in an action against A which would be inadmissible in an action against B, which might yet be very damaging to B. Therefore, even if theoretically these claims could be joined (which in my opinion, for the reasons I have given, is not the correct view of the meaning of the rule), I think that in the present case we ought not to allow them to be joined.[29] (emphasis added)

1. I accept there are cases where considerations of this ilk are relevant and indeed may be vital. This is not one of them, in my view.
2. In the context of the Walthamstow Actions, any risk of tainting or influencing of evidence across the actions can be monitored during the course of the trial and appropriate evidentiary rulings can be sought as required. The commonality of matters between the actions means the making of the order sought by the plaintiff (to the effect that evidence in each action stand as evidence in the other actions) makes sense from a case management sense and will create no confusion, nor cloud the issues.
3. There is also no significant unfairness or prejudice to the defendants arising from the defendants being cross-examined in one trial as to matters arising in the other actions. Such a circumstance may arise whether the actions are heard in one trial or in multiple trials, and is a factor which can fairly be seen as a bipartisan risk of a combined hearing - it does not tell only as against the plaintiff or only as against the defendants.
4. More generally, counsel for the defendant made submissions to the effect that a combined hearing approach would place a strain or burden on the defendants. Counsel indicated his clients would be required to fight a war on three fronts, so to speak. My assessment is that this burden is not a compelling factor in this litigation, and would fall on all of the parties in any event, not merely the defendants. Indeed, as I have said, I perceive there will be savings in time and costs in the approach sought by the plaintiff, which ought relieve much of the defendants' burden.

1. Weighing up the factors referred to above, I am of the view that the plaintiff has sufficiently demonstrated that the Walthamstow Actions should be heard at one trial together, rather than at separate trials, and the primary orders the plaintiff seeks should be made. Doing so will be convenient, efficient and promote the just determination of the litigation in all three of the actions.
2. The risk of tainting or influence of evidence as highlighted by counsel for the defendants, said to be a matter of unfairness to the defendants in particular, is not a matter of great weight in the context of the present actions (as explained at [59] to [66] above). Indeed, if that issue has any significance at all, and I am far from certain it does, it has implications for all parties, not merely the defendants. In any event, this consideration and the fact there are some particular issues which arise in a confined way in each action (as explained at [37] to [42] above), do not overcome the cogent factors which point in favour of a joint hearing, including the commonality of the parties and the nature of their overall relationship (as explained at [43] to [46] above), the extensive commonality of central questions of fact and law (as explained at [47] to [53] above), and the case management considerations to which I have referred (at [55] to [58] above).
3. In my view, while I accept the orthodox position is that each of these actions would ordinarily be heard and determined at separate trials, this is an appropriate case in which a single hearing should be listed, which will avoid a multiplicity of trials and the risk of inconsistent findings.

1. For the above reasons, I will make the primary orders sought by the plaintiff, as noted at [75] below. The actions will also continue to be managed together.
2. As to the trial length, counsel for the plaintiff estimated a potential hearing time for all of the actions, in a combined hearing, of around 7 to 8 days. Counsel for the defendant submitted the combined hearing would be much longer, around 15 to 17 days. My own assessment is that two weeks should be allowed for a combined hearing. From my interchanges with counsel at the hearing, I understand all parties and counsel are available in November 2023 for a hearing.
3. All parties proposed that a statement of agreed facts be filed as part of the steps leading to the trial. In my view, that should be attended to sooner rather than later to identify true points of commonality between the parties.
4. Counsel for the plaintiff structured his set of directions in a manner which requires viva voce evidence with supporting witness outlines, in accordance with the court's current practice, on the expressly identified contentious issues, with witness statements permitted on the non-contentious matters. I can see benefit in this approach, in the context of this action.
5. The following orders will be made in each of the actions (with appropriate modifications in each action) and I will hear from counsel as to the further programming directions which should be made to accommodate these orders, and as to the costs of the application:

(a) All three actions be listed for a 10 day trial commencing on Monday, 6 November 2023 through to Friday 20 November 2023.
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> (b) The trial of the action in CIV 3016 of 2019 be heard at the same time as the trials of the actions in CIV 3136 of 2019 and CIV 2283 of 2021.
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> (c) The evidence led at each trial in CIV 3016 of 2019, CIV 3136 of 2019 and CIV 2283 of 2021 be treated as evidence in the other actions.
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> (d) The parties file a joint statement of agreed facts (if any) by Friday, 14 April 2023.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

[1] Statement of Claim in CIV 3016 of 2019 dated 25 November 2019; Statement of Claim in CIV 3136 of 2019 dated 17 December 2019; and Statement of Claim in CIV 2283 of 2021 dated 26 November 2021.

[2] The defendants observe that the loan facilities in each action were secured by isolated and distinct residential property developments spread across the Perth Metropolitan region, being the Piara Waters development in the case of CIV 3016 of 2019, the 82 Treeby Road, Anketell development in the case of CIV 3136 of 2019, and the Hocking development in the case of CIV 2283 of 2021.

[3] Ms Bazzo is alleged to be a party to one of the loan agreements, in her own right, alternatively as trustee for the Gucce Family Trust (in CIV 2283 of 2021).

[4] Letter from Taylor Smart to Registrar Griffin dated 6 December 2022 (Court Folio 41).

[6] Orders made 24 January 2023 [4(a)].

[7] For the purposes of the hearing on 10 March 2023, the plaintiff filed a minute of proposed orders on 9 March 2023 seeking the same substantive orders as were sought in the minute dated 2 March 2023.

[8] Third Amended Defence and Counterclaim in CIV 3016 of 2019 dated 7 November 2022; Third Amended Defence in CIV 3136 of 2019 dated 7 November 2022 (which includes a set-off plea); and Second Amended Defence and Counterclaim in CIV 2283 of 2021 dated 7 November 2022.

[9] Substituted Reply and Defence to Counterclaim in CIV 3016 of 2019 dated 22 February 2023; Substituted Reply in CIV 3136 of 2019 dated 22 February 2023; and Substituted Reply and Defence to Counterclaim in CIV 2283 of 2021 dated 22 February 2023.

[10] Third Amended Defence and Counterclaim in CIV 3016 of 2019 [8.2]; and Second Amended Defence and Counterclaim in CIV 2283 of 2021 [4.3.2].

[11] Third Amended Defence and Counterclaim in CIV 3016 of 2019 [11.2]; and Third Amended Defence in CIV 3136 of 2019 [21.4].

[12] Third Amended Defence and Counterclaim in CIV 3016 of 2019 [8.7]; Third Amended Defence in CIV 3136 of 2019 [24.5]; and Second Amended Defence and Counterclaim in CIV 2283 of 2021 [5.4].

[13] See, in particular, [8.7.4] of the Third Amended Defence and Counterclaim in CIV 3016 of 2019 which pleads, as a matter relevant to the penal nature of the interest rate, the 'lending relationship' between the plaintiff and the companies associated with Mr Caratti from around 2000. This allegation is replicated at [24.5.4] of the Third Amended Defence in CIV 3136 of 2019 and in [5.3.5] of the Second Amended Defence and Counterclaim in CIV 2283 of 2021.

[14] Third Amended Defence and Counterclaim in CIV 3016 of 2019 [30] - [60]; and Third Amended Defence in CIV 3136 of 2019 [42] - [73].

[15] The loan agreement was allegedly entered into on 30 June 2015, between the plaintiff as lender and five companies as the borrowers (and Ms Bazzo was the sole director and secretary of each of those companies): see Third Amended Defence and Counterclaim in CIV 3016 of 2019 [38] - [39]; and Third Amended Defence in CIV 3136 of 2019 [51].

[16] Third Amended Defence in CIV 3136 of 2019 [21.2]; and Second Amended Defence and Counterclaim in CIV 2283 of 2021 [14.2].

[17] Third Amended Defence in CIV 3136 of 2019 [41] and [65.5].

[18] Substituted Reply and Defence to Counterclaim in CIV 3016 of 2019 [52.5].

[19] Defendants' outline of submissions [10.1].

[20] Substituted Reply in CIV 3136 of 2019 [3] and [4].

[21] Third Amended Defence in CIV 3136 of 2019 [35].

[22] Second Amended Defence and Counterclaim in CIV 2283 of 2021 [32] ‑ [49].

[23] Affidavit of Ms Bazzo sworn 9 March 2023 [3].

[24] The companies named are GH1 Pty Ltd, 115 Cambridge Street Pty Ltd, Abernathy Land Company Pty Ltd, Ocean Keys (WA) Pty Ltd, Flynn Drive Holdings Pty Ltd, Byford Land Company Pty Ltd, Marnbu Projects Pty Ltd and Ashwood Assets Pty Ltd: see Substituted Reply and Defence to Counterclaim in CIV 3016 of 2019 [30].

[25] I gather the defendants may put on expert valuation evidence in CIV 3136 of 2019 which would be peculiar to that action. Counsel for the defendants also referred during the hearing to expert evidence from real estate agents, but it is not clear to me whether such evidence will be required in each action, or only in one of the actions. The expert evidence which undoubtedly appears to be common to all actions is that which concerns the interest rate issue.

[26] Or even having two of the actions heard and determined closely together, prior to the final matter being heard, as proposed by the defendants' counsel.

[27] Affidavit of Ms Bazzo sworn 9 March 2023 [4].

[28] Queensland Estates (170 ‑ 171) (Lucas J).