Winpar Holdings Ltd v National Consolidated Ltd

REASONS FOR INTERLOCUTORY ORDERS 1 In this matter I told the parties yesterday of my views concerning an application to transfer the proceedings to the Victorian Supreme Court under s 1337H of the Corporations Act. I indicated to the parties that I would give my reasons for my views today. Before I give reasons, I should indicate in summary form what I indicated to parties yesterday were my views about the application. I expressed the view that there was a significant conformity of issues between matters raised by the plaintiffs in these proceedings and the matters before Warren J in the Victorian Supreme Court in what I will hereafter refer to as the Acquisition Proceedings. 2 The matter which is common to both proceedings is, as I will explain later, in short form the matter which has been assumed by Mr Lonergan in an expert report in the Acquisition Proceedings, which assumption is reflected in para 126 of his expert report which is contained in Exhibit A on the motion and behind tab "S". Given that there is that conformity of issue in both proceedings, I have taken the view that in order to avoid what might well be a significant repetition of evidence and to avoid the risk of inconsistent findings, I would transfer the matter to the Victorian Supreme Court, but only if her Honour was able and willing to hear this matter. 3 The reason for that limitation is that if a second judge is to hear this case, I see no utility in transferring the matter to the Victorian Supreme Court merely because her Honour is also hearing the Acquisition Proceeding. If two judges are to hear the two proceedings then this Court is not only perfectly able to do so but it is just as convenient for this Court to do so. Therefore, I indicated that the orders that I would make today would, in effect, be to stand the transfer application over and allow the parties to raise the matter with her Honour today or next week in order for her Honour's position and attitude to be ascertained. 4 Before delivering my reasons, I should emphasise something which I said to the parties yesterday and which I hope they convey to her Honour today and that is this: it should not be taken that I or this Court is in anyway requiring her Honour to do anything or expecting her Honour to do anything. It may or may not be thought appropriate by her Honour to accept this transfer, as it were, into her list. There may be internal procedures and views within the Victorian Supreme Court which would make it less than appropriate that her Honour hear this matter. It should not be taken that anything I am suggesting is something which should be seen as an expectation of me or this Court of her Honour or the Victorian Supreme Court. 5 The application by originating process was filed by the two plaintiffs on Friday, 2 November. On that date there was an ex parte application for short service. No interlocutory relief was sought on that day. The applicant made clear on that day that no interlocutory relief was to be sought at all. Rather, what the plaintiffs sought was that short service be given and the defendant be brought to court so that an early final hearing could be ordered. The orders sought in the originating process were relevantly three, they being as follows: