Australian Competition and Consumer Commission v The IMB Group Pty Ltd & Ors Australian Competition and Consumer Commission v The National Mutual Life Association of Australasia
[1996] FCA 158
•12 MARCH 1996
CATCHWORDS
PRACTICE AND PROCEDURE - consolidation - common issues of fact - possibility of conflicting findings - no claim of prejudice
Federal Court Rules O29 r 5
Australian Competition and Consumer Commission v The IMB Group Pty Ltd Redbeak Pty Ltd Logan Lions Limited Samson Neil Backo David John Ivers Luke Vincent Ivers John Lindsay Ivers Lance Thomas Stone Michael John McLean William Anthony Musgrave Robert Cowley Glenn James Ivers Legal and General Life of Australia Limited
Australian Competition and Consumer Commission v The National Mutual Life Association of Australasia
No QG 175 of 1993
No QG 77 of 1994
Kiefel J Brisbane 12 March 1996
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION No. QG 175 of 1993
BETWEEN:
AUSTRALIAN COMPETITION AND CONSUMER COMMISSION
Applicant
AND:
THE IMB GROUP PTY LTD
First Respondent
AND:
REDBEAK PTY LTD
Second Respondent
AND:
LOGAN LIONS LIMITED
Third Respondent
AND:
SAMSON NEIL BACKO
Fourth Respondent
AND:
DAVID JOHN IVERS
Fifth Respondent
AND:
LUKE VINCENT IVERS
Sixth Respondent
AND:
JOHN LINDSAY IVERS
Seventh Respondent
AND:
LANCE THOMAS STONE
Eighth Respondent
AND:
MICHAEL JOHN McLEAN
Ninth Respondent
AND:
WILLIAM ANTHONY MUSGRAVE
Tenth Respondent
AND:
ROBERT COWLEY
Eleventh Respondent
AND:
GLENN JAMES IVERS
Twelfth Respondent
AND:
LEGAL AND GENERAL LIFE OF AUSTRALIA LIMITED Thirteenth Respondent
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION No. QG 77 of 1994
BETWEEN:
AUSTRALIAN COMPETITION AND CONSUMER COMMISSION
Applicant
AND:
THE NATIONAL MUTUAL LIFE ASSOCIATION OF AUSTRALASIA
Respondent
JUDGE MAKING ORDER: Kiefel J.
DATE OF ORDER: 12 March 1996
WHERE MADE: Brisbane
MINUTES OF ORDERS
THE COURT ORDERS THAT:
Applications numbered QG 175 of 1993 and QG 77 of 1994 be consolidated.
The applicant have leave to amend the consolidated application in terms of Exhibit "LZ3" to the affidavit of Lesley-Anne Ziukelis filed on 8 December 1995.
The applicant have leave to file and serve a consolidated statement of claim.
Costs be in the cause.
THE COURT DIRECTS THAT:
Each of the first to ninth and twelfth respondents in QG 175 of 1993 and the respondents in QG 77 of 1994 file and serve amended defences to the consolidated statement of claim by 12 April 1996.
The applicant serve the tenth and eleventh respondents in QG 175 of 1993 with the consolidated statement of claim.
All further witness statements, save experts statements, be filed and served by 31 May 1995.
The applicant file and serve expert statements by 28 June 1996.
The respondents file and serve expert statements by 31 July 1996.
The matter be listed for review at 9.30 am on 23 August 1996.
NOTE:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION No. QG 175 of 1993
BETWEEN:
AUSTRALIAN COMPETITION AND CONSUMER COMMISSION
Applicant
AND:
THE IMB GROUP PTY LTD
First Respondent
AND:
REDBEAK PTY LTD
Second Respondent
AND:
LOGAN LIONS LIMITED
Third Respondent
AND:
SAMSON NEIL BACKO
Fourth Respondent
AND:
DAVID JOHN IVERS
Fifth Respondent
AND:
LUKE VINCENT IVERS
Sixth Respondent
AND:
JOHN LINDSAY IVERS
Seventh Respondent
AND:
LANCE THOMAS STONE
Eighth Respondent
AND:
MICHAEL JOHN McLEAN
Ninth Respondent
AND:
WILLIAM ANTHONY MUSGRAVE
Tenth Respondent
AND:
ROBERT COWLEY
Eleventh Respondent
AND:
GLENN JAMES IVERS
Twelfth Respondent
AND:
LEGAL AND GENERAL LIFE OF AUSTRALIA LIMITED Thirteenth Respondent
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION No. QG 77 of 1994
BETWEEN:
AUSTRALIAN COMPETITION AND CONSUMER COMMISSION
Applicant
AND:
THE NATIONAL MUTUAL LIFE ASSOCIATION OF AUSTRALASIA
Respondent
CORAM:Kiefel J.
DATE:12 March 1996
PLACE:Brisbane
REASONS FOR JUDGMENT
On 12 March 1996 I made orders granting leave to amend the statement of claim in QG 175 of 1993 against the IMB Group Pty Ltd ("IMB Group") and persons associated with it, and I made an order consolidating those proceedings with QG 77 of 1993, being proceedings brought by the Commission against National Mutual Life Association of Australasia Limited ("National Mutual") on the application of the Commission. I also gave directions with respect to the future conduct of the proceedings and I advised the parties that I would provide short written reasons, my views upon the matter having been discussed during argument.
Prior to consolidation, each of the proceedings concerned allegations as to a course of conduct engaged in by the IMB Group and its representatives at different
periods between 1991 and 1993. That conduct involved proposal documents and seminars given or held with a view to interesting members of the public in an investment, at a later time, in a proposed rugby league club stadium and associated facilities to be constructed in Logan City. It is alleged that the project was never a viable one although it was one actually pursued. By their conduct it is alleged the representatives engaged in misleading and deceptive conduct in a number of respects.
Another insurance company, Legal & General Life of Australia Limited was initially a respondent in QG 175 of 1993. The proceedings against it are no longer pursued. In QG 77 of 1993 National Mutual, but not the IMB Group, are joined as respondents. It is there alleged that the IMB Group was National Mutual's agent for the period from February 1991 to 1992 and that National Mutual was responsible for the conduct of its representatives. In the process of establishing investments funds, it is alleged the IMB Group sold National Mutual investment policies, the proceeds of which were later, I take it, to be applied to the ultimate investment. The IMB Group is said to have undertaken similar sorts of sales in the later period from mid-1992 and through 1993 which, I was told, was the period when most of the sales activity occurred. It was of some significance that QG 175 of 1993, involving only the IMB Group, was concerned only with this later period and not the period relevant to the action against the National Mutual.
Other differences were pointed to as between the National Mutual and IMB Group proceedings. In the National Mutual proceedings the representations alleged,
whilst left in issue on the pleadings, have not been the subject of direct challenge by witness statements. In the IMB Group proceedings, I was told by senior counsel, it is proposed to substantially challenge what is alleged to have been said or conveyed. The evidence to be adduced by the Commission in the National Mutual proceedings is to be confined to some seventeen witnesses together with some experts in the financial field. National Mutual will be calling some twelve witnesses. The evidence in the IMB Group proceedings is likely to be substantially more considerable with some sixty or so persons presently likely to be called for the applicant alone (although it is hoped that by some level of cooperation not readily apparent to me that that figure will be reduced). The respondents may call some forty witnesses and this number could swell if I grant leave to deliver further witness statements out of time. The only evidence truly common to them was the expert evidence touching upon matters of the viability of the project but it would take some few days to be heard. The estimates for the IMB Group proceedings are some 4-6 weeks and this might be conservative. That for the National Mutual hearings is 2 weeks or a little more. The National Mutual proceeding, it can be discerned, is factually narrower and is likely to be more concerned with the question of National Mutual's responsibilities for the actions of the IMB Group representatives.
The amendments proposed, however, sought to extend the case against the IMB Group agents in proceedings QG 175 of 1993 back to the period from February 1991 through to mid-1992 that is to say, the period referred to in the National Mutual proceedings. It seemed to me at this point that if the amendment were allowed the matter assumes a different complexion. That is because there would be common issues of fact
relating to what was said and done during the 1991-1992 period (see O29 r5), and if the National Mutual proceedings were heard separately from the IMB Group proceedings there would be a real possibility of conflicting findings of fact being made in each proceeding - hardly a desirable result if it can be avoided. Whilst, in that event, National Mutual might be put to extra expense in attending parts of the trial in which it may have little interest, directions could be made closer to that date when it was known when those witnesses were likely to be called.
At this point I listed the matter for further argument given that senior counsel for the IMB Group had not earlier been in a position to comment upon the proposed amendments. In the result, neither those respondents nor National Mutual had objection to them. Whilst it is perhaps unfortunate that they were made late in proceedings which are otherwise well advanced, they are not caught by any limitation period and no party says that they are prejudiced. There seems to me to be good practical reasons why one proceeding ought then determine the whole of the connected series of events. Given leave to amend, for the reasons I have earlier stated, the order for consolidation seemed to me to be a necessary and desirable result.
I certify that this and the preceding four pages are a true copy of the reasons for judgment herein of the Honourable Justice Kiefel.
Associate
Date:14 March 1996
Counsel for the applicant: Mr G Thompson
Solicitors for the applicant: Australian Government Solicitor
Counsel for the first to ninth and
twelfth respondents: Mr A Vasta QC
Solicitors for the first to ninth
and twelfth respondents: Messrs Hill & Taylor
Solicitors for tenth and eleventh
respondents: No appearance
QG 77 of 1994:
Counsel for the respondent: Mr P McMurdo QC
Solicitor for the respondent: Messrs Minter Ellison
Date of Hearing: 12 March 1996
Place of Hearing: Brisbane
Date of Judgment: 14 March 1996
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