Bainbridge v Lawton
[2003] WASC 199
BAINBRIDGE & ORS -v- LAWTON & ORS [2003] WASC 199
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2003] WASC 199 | |
| Case No: | CIV:1813/2002 | 20 JUNE 2003 | |
| Coram: | WHEELER J | 17/10/03 | |
| 17 | Judgment Part: | 1 of 1 | |
| Result: | Leave to amend statement of claim in present form refused Application for consolidation refused | ||
| B | |||
| PDF Version |
| Parties: | JOYCE IRENE BAINBRIDGE & ORS GARY HAMILTON LAWTON IAN ROSS GILLON JULIAN RICHARD TYDDE SIMON CHRISTOPHER ENGLAND Mr I Hamilton (cross-respondent in corporation matters) |
Catchwords: | Turns on own facts |
Legislation: | Nil |
Case References: | Bainbridge & Ors v Lawton & Ors [2003] WASC 43 Nil |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Plaintiffs
AND
GARY HAMILTON LAWTON
IAN ROSS GILLON
First Defendants
GARY HAMILTON LAWTON
IAN ROSS GILLON
JULIAN RICHARD TYDDE
Second Defendants
GARY HAMILTON LAWTON
IAN ROSS GILLON
JULIAN RICHARD TYDDE
SIMON CHRISTOPHER ENGLAND
Third Defendants
GARY HAMILTON LAWTON
IAN ROSS GILLON
SIMON CHRISTOPHER ENGLAND
Fourth Defendants
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Catchwords:
Turns on own facts
Legislation:
Nil
Result:
Leave to amend statement of claim in present form refused
Application for consolidation refused
Category: B
Representation:
Counsel:
Plaintiffs : Mr D H Solomon & Mr J C Giles
First Defendants : Mr K J Martin QC, Mr S M Davies &
Ms S E Harrison
Second Defendants : Mr K J Martin QC, Mr S M Davies &
Ms S E Harrison
Third Defendants : Mr K J Martin QC, Mr S M Davies &
Ms S E Harrison
Fourth Defendants : Mr K J Martin QC, Mr S M Davies &
Ms S E Harrison
Intervenors : Ms K Vernon (for Mr Grida, cross-respondent in corporation matters)
: Mr I Hamilton, in person (cross-respondent in corporation matters)
Solicitors:
Plaintiffs : Solomon Brothers
First Defendants : Mallesons Stephen Jaques
Second Defendants : Mallesons Stephen Jaques
Third Defendants : Mallesons Stephen Jaques
Fourth Defendants : Mallesons Stephen Jaques
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- Intervenors : Ms K Vernon (for Mr Grida, cross-respondent in corporation matters)
: Mr I Hamilton, in person (cross-respondent in corporation matters)
Case(s) referred to in judgment(s):
Bainbridge & Ors v Lawton & Ors [2003] WASC 43
Case(s) also cited:
Nil
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1 WHEELER J: This is a further plaintiffs' application to amend a statement of claim. Since the reasons I delivered in March this year in [2003] WASC 43, the plaintiffs have repleaded, dividing the statement of claim into three parts. One part of the claim deals largely with the factual matters; one is largely conclusory, in the sense that it draws together conclusions which are said to flow from those facts; and one deals largely with allegations concerning the knowledge of the defendants of certain matters. The further amended minute of statement of claim dated 12 June 2003 is clearly intended to deal with the criticisms which I made of the earlier minute of amended statement of claim, and to answer some of the criticisms raised by the defendants.
2 The background to the action appears from my earlier reasons, which are to be read together with these. Rather than attempt to explain anew, from the beginning, what the claim is about and the difficulties which I see with the present further amended minute, it is convenient I think to take my earlier reasons as a starting point, and to refer to the ways in which the further amended minute departs from the document which I dealt with in those reasons. In some cases, it will be seen that the earlier difficulties which I saw with the former document have disappeared or have been ameliorated. However, it is my view that significant difficulties still remain.
3 There are perhaps two general observations which need to be made at this point. The first is, as I think I made clear in my earlier reasons, in a claim which is of this factual complexity, and in which a significant number of transactions are involved, it would be unreasonable to expect perfection. What is required is merely a claim which sufficiently informs the defendants of the case which they have to meet, which enables them to plead to the claim, which identifies issues relevant to discovery and, desirably, one which will enable this action to be run in a way which is as convenient and as economical as can reasonably be expected with a claim of this dimension. It does appear to me that the defendants' submissions broadly understood that that was the view that I took. Although the submissions of the defendants condescended to considerable detail, there was it seemed to me some reasonable effort to identify only those matters in relation to which the defendants were truly embarrassed.
4 So far as the plaintiffs are concerned, there has been, as I have noted, considerable improvement in the statement of claim. However, there is one observation made by the plaintiffs' counsel during the course of argument which I think requires notice. It was to the effect that this claim "will proceed" and that evidence "will" be called. If that
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- observation was expressive of no more than a determination to answer, and where necessary to deal with, the criticisms made by the defendants, so as to enable the claim to proceed, no issue could be taken with it. However, whatever sympathy I might feel for the plaintiffs faced with the task of pleading a factually complex claim of this magnitude, I remind myself at this point that it is important that the claim not proceed further until such time as an appropriate pleading is in place.
5 With those preliminary remarks in mind, I turn to deal with the matters raised in my earlier reasons. For ease of reading the two sets of reasons together, I deal with the issues in the order in which they were dealt with in the earlier reasons. I omit reference to any of those areas in respect of which I was not previously persuaded that there was a difficulty with the former minute of amended statement of claim.
Paragraph 84 of the Minute
6 This paragraph has been significantly amended, and in my view it is now an acceptable pleading, although it might perhaps have been more succinctly and directly expressed. All the miscellaneous facts, such as the incorporation of the company Kentlaw have now been deleted. So far as I have been able to ascertain, only two types of matters are referred to as matters of which LG did not advise the relevant plaintiffs. An example of one of those types of matters is par 13, which, in summary, is a pleading that there was a loan in relation to which B & D acted in a manner which was not in the interests of its lender clients. The majority of the paragraphs referred to in par 84 are of that kind.
7 Paragraph 84 also refers to some earlier paragraphs of the pleading in which it is alleged that the defendants acted as solicitors for various parties. I presume that the reason for referring to those paragraphs is that they go to show either the basis of the defendant's knowledge of the matters referred to in the other paragraphs, in broad terms, or to demonstrate that the defendants were in a position of conflict of interest, or both.
8 It seems to me that the mischief which I identified in relation to this paragraph in my earlier decision has been largely avoided in the proposed amended statement of claim. However, I noted in my earlier reasons that the vice which I identified in par 84 at that stage flowed through to the paragraphs dealing with the duty allegedly owed by the defendants and its breach in pars 499 and following. So far as par 499
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- and following are concerned, they still require rectification. Paragraph 499 presently pleads that by reason of matters pleaded in pars 2 to 5 and 12 through to 498, or some of them, the defendants owed to each plaintiff certain fiduciary duties and other duties. The plea in those terms is difficult to understand. Many of the paragraphs refer to the fact that, in unrelated transactions, the defendants acted for another party. That would not appear on its face to be capable of giving rise to any duty on the part of the defendants towards an unrelated plaintiff. Indeed, one would understand the duty, if any, usually to arise simply out of the solicitor/client relationship and the particular retainer. If there is, in relation to any or all of the plaintiffs, some additional feature of the transaction or transactions which is capable of giving rise to the duties pleaded, in my view that must be specifically identified. The pleading as it presently stands is embarrassing.
9 The pleading in par 511 and following as to causation likewise appears to me to be embarrassing. Paragraph 511 commences by pleading that "by the reason of the matters pleaded in paragraphs 81 – 497 and the breaches pleaded in [pars 501 – 508]" each of the plaintiffs has "suffered the loss and damage pleaded above". It does not appear to me that this pleading is intended to add anything to the pleading of causation which occurs, in relation to each transaction, at the point where the transaction is pleaded in the statement of claim. Taking an example at random, in par 405 it is pleaded that by reason of the defendant's conduct the eighth plaintiffs made a certain loan. In the following paragraph it is pleaded that certain events occurred in relation to that loan. Those events were that the guarantors could not repay it and that the property was inadequate security for the loan; these are, seen in the context of the rest of the pleading, events of the type which it is alleged occurred in the various "background transactions" and in earlier transactions in respect of which the defendants acted, and may therefore be understood to be events against the risk of which it is asserted the defendants should have warned the plaintiffs. Paragraph 406 then concludes with a plea that the eighth plaintiffs have suffered loss and damage. If par 511 is intended to add anything to pleas of causation of that type, the addition will need to be spelt out.
The cross-referencing technique
10 In my previous reasons I was concerned that the cross-referencing technique was unnecessarily complex as the statement of claim was then formulated and that a pleading effectively alleging that the defendants should have informed the plaintiffs of every single fact which was pleaded and which occurred prior to the transaction in which
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- that plaintiff engaged, could not be the case which the plaintiffs truly sought to make out. I suggested recasting the pleading and, in particular, I suggested that it might be possible to recast it so as to separate out non-contentious facts and to plead conclusions largely by way of reference to those facts.
11 The plaintiffs have separated their statement of claim into three parts. That has in some respects been a useful exercise, but it has emphasised a number of problems with the cross-referencing technique and, indeed, with the pleading in the action generally.
12 The two most significant difficulties appear to me to be: First, that conclusory pleadings are made in terms which either are not supported by material facts, or are supported by what purport to be allegations of material fact which allegations are so broad as to be embarrassing; and, second, that the cross-referencing involved follows so labyrinthine a path that it is simply not possible for the defendants to understand, in relation to any given transaction, the nature of the claim which they have to meet.
13 There is a further unusual feature of the way in which the claim has been split, which relates to the part of the statement of claim which is intended to deal with uncontentious facts. A significant number of "facts" pleaded in the factual portion of the statement of claim are not facts at all, let alone uncontentious facts. For example, par F62.3 recites the "fact" that "the frequent sales of the security property had the effect of artificially inflating the price paid for the security property". That is clearly an inappropriate way to draft a document which was intended to be a document consisting of facts which could readily be established by a reference to relevant documents, but that difficulty is a curable one.
14 Turning to the second of the difficulties to which I have referred, that of the "labyrinthine" manner of pleading, an example is given by the defendants in relation to what is described as the "Kentlaw loan". Many other examples are given in a schedule provided by the defendants. Some of those appear to rest only upon typographical errors, but others fall into the same category as the Kentlaw loan. In relation to that loan, it is pleaded in pars 13.3 and 14 that the borrower and guarantors or some of the guarantors had prima facie no or doubtful ability to repay the Kentlaw loan other than by the sale of the security property, or at all, and that the defendants knew those matters. Paragraph 14, which pleads knowledge on the part of the defendants, refers to pars F13.1 to 13.9 and K14.1 to 14.8. Paragraph K14.8 pleads
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- that the defendants had knowledge of the facts pleaded in pars 65 and 66 of the statement of claim and F65 and K66 of the other parts of the statement of claim. Paragraph 66 of the statement of claim in turn relies upon K 66, so that par 66 itself seems superfluous. Paragraph K66 in turn refers back to portions of F65, already referred to. F65 relies upon inter alia, F13. The pleading is in that sense almost entirely circular.
15 So far as the substance of the claim is concerned, the somewhat circular nature of the cross-referencing technique tends to obscure what frequently appears, on analysis, to be an insufficient factual foundation for the conclusion pleaded.
16 Looking in this example to the inability of Kentlaw itself to repay the loan, that inability is said to be derived from the fact that the first loan to Kentlaw advanced on about 8 October 1992 comprised loans totalling approximately $6.6 million, was secured by a first mortgage over the Stirling Gate Shopping Centre, and that Kentlaw had purchased the shopping centre for $6.2 million by an agreement which was "completed" on 8 October 1992, the company having been first incorporated in July 1992 and having no other assets or sources of income. As to that aspect of the claim, one can see that, assuming that there had been no significant increase in the value of the shopping centre between the time at which the offer was made and the time at which the sale was "completed" then, depending upon the terms of the loan and the income, if any, able to be obtained (about which nothing is pleaded) from the shopping centre, one could envisage circumstances in which the borrower might well have difficulty in repaying the loan. A second loan to Kentlaw was apparently made some months later and secured by a mortgage over one of the strata lots which formed part of the Stirling Gate Shopping Centre, about which nothing else is pleaded. That loan took the total of the loans to Kentlaw secured by the Stirling Gate Shopping Centre to approximately $6.8 million.
17 So far as the guarantors are concerned, they are named. Although a number of them are mentioned elsewhere in the various paragraphs to which cross-reference is made dealing with the Kentlaw loan, nowhere in terms is there a pleading as to precisely why at the time in question they had no or doubtful ability to repay the Kentlaw loan; so far as one of the guarantors (Mr O C K Blackburne) is concerned, there appears to be no reference whatever to him in any of the cross-referenced paragraphs. In my view, when it is alleged that a solicitor should have known that a borrower or guarantor had no or doubtful ability to repay a loan, there should be pleaded in relation to that a narrative of the facts from which that conclusion should have been drawn. It is likely to
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- delay and to embarrass the fair trial of this action to require the defendants to attempt to trace through the various cross-references of the type to which I have referred, in order to discern the factual basis, if any, for the allegation which is made.
18 In relation to the conclusions for which there is simply no adequate factual foundation, the defendants give as an example, which I accept, pars 55 and 56 of the statement of claim. It is alleged in par 56.1 that the brokers misappropriated certain trust funds. That is a matter of which it is said that the solicitors had knowledge. There are no facts pleaded in the part of the statement of claim which is set aside to deal with uncontentious facts, which relate to that allegation of misappropriation. However, in the part of the statement of claim dealing with knowledge, it is pleaded that the defendants knew of the misappropriation by reason of four matters. One is simply that the defendants acted as solicitors for the brokers and for a variety of other parties. That is inadequate to found any allegation of misappropriation or of knowledge of it. The next is that the solicitors acted for the brokers in relation to a matter in the Corporations List in this Court "in which evidence of misappropriation of trust moneys ... was given". There is no pleading of by whom the evidence was given or when or how the misappropriation is alleged to have taken place. As I have noted, the fact of misappropriation which is said to have been referred to in evidence in the corporations action, is nowhere pleaded as a fact. In order to understand this pleading at all, the defendants need to search either the file or the transcript, if any, in order to guess what the evidence to which the plaintiffs refer may have been. The third matter is that the solicitors acted for the brokers in an enquiry before the Finance Brokers Supervisory Board "relating to misapplication of trust funds". It is alleged that the evidence in that enquiry "disclosed trust moneys were paid for an unauthorised purpose and were mixed with other trust money". Again, there is no attempt to identify what the trust moneys were, how they were dealt with, what the evidence was, or even what the conclusion drawn by the Board may have been. Finally, the fourth of the particulars of knowledge is said to be that the solicitors acted for the plaintiffs in certain Supreme Court actions and in a District Court action in which misappropriation of moneys by the broker was pleaded as a defence to the claims of the plaintiffs. There is here a slightly greater precision in identification of the misappropriation alleged, but it is difficult to see how a mere allegation that in some proceedings it was alleged by another party that there had been a misappropriation, could ever suffice to found a plea that the defendants "knew" that misappropriation had taken place.
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19 The difficulty with the pleading here is twofold. Not only is it embarrassing in that it insufficiently identifies the facts upon which the plaintiffs rely; but also, so far as one can discern from the pleading, it amounts to no more than a pleading that some other persons had alleged that there had been misappropriation. While it is difficult without further particularisation to reach a firm conclusion, it would at present seem to me that there is simply no basis anywhere in the statement of claim for the allegation that the defendants "knew" that the brokers had misappropriated funds.
20 I consider that it would be both tedious and unnecessary to attempt to analyse large slabs of the statement of claim in the kind of detail that I have attempted above. Because a similar type of format is followed in relation to the pleading of each transaction, even a brief inspection of the statement of claim reveals that the problems existing in the areas which I have analysed are carried through into the rest of the statement of claim. To summarise, it is my conclusion that the vice of the claim as presently pleaded is that it does not identify with clarity and precision, in relation to each of the conclusions pleaded, the material facts upon which that conclusion rests. Instead, the reader must jump from one cross-reference to another in an attempt to put together a foundation for each conclusion pleaded. When that task is undertaken, it appears that there is in relation to some at least of the conclusions, an absence or an inadequacy of material facts but, because of the form which the claim takes, it is not possible to be certain that a material fact has not been overlooked, or that the significance of a collection of related facts has not been misunderstood.
21 The vice which I have identified is important for a number of reasons. First, it makes it extremely difficult for the defendants to plead to the statement of claim as presently framed. It also renders it practically impossible for the defendants either to apply to strike out discrete portions of the statement of claim, or to seek to have discrete issues identified for determination. Both of the latter two procedures are of particular importance in a claim of this complexity. While, as I noted in my earlier reasons, in some respects the action is not a complex one in that it is based apparently upon the application of relatively well understood legal principles, it does involve a very large number of allegations of fact and the application of those legal principles in somewhat unusual circumstances. In my earlier reasons, I accepted that understanding the thrust of the claim and being able to plead to particular allegations are two quite distinct tasks. It seems to me that
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- the pleading is still at the stage where, while the broad overall thrust of the claim may be understood, the defendants are not able to plead to it.
Misleading and deceptive conduct
22 There has been some alteration of the pleading relating to the allegation of misleading and deceptive conduct. However, when analysed it boils down to the following. The defendants acted as solicitors for the plaintiffs. The defendants knew certain matters which are pleaded at pars 12 through to 497 of the statement of claim. The defendants knew or suspected that the plaintiffs had generally not had independent legal advice and lacked the means independently to ascertain the various matters pleaded. The plaintiffs were reasonably entitled to assume that solicitors acting for each plaintiff would inform that plaintiff "of the matters pleaded in paragraphs 13 – 78 and 81 – 497 pleaded as being known to [the defendants] prior to each plaintiffs investment being made, if those matters existed".
23 As it stands, it appears to be a pleading that each of the plaintiffs was entitled to assume that solicitors acting for them would inform them of any or all of the matters which are pleaded as being known to those solicitors. Those matters which are pleaded cover a variety of circumstances. They include, for example, transactions in which it is said that the brokers preferred their own interests to the interests of their clients in a manner which appears to be unprofessional and dishonest. They also, however, include circumstances in which it appears that a loan was an imprudent one because the security was not adequate or was barely adequate, or there would be difficulty apparently in repaying the loan. Particularly where the conduct of which it is said solicitors were aware was merely commercially imprudent, it seems to me that if there exist circumstances which would give rise to a reasonable expectation that commercially imprudent aspects of the transaction would be disclosed, those circumstances need to be identified with precision. It may be, in relation to other transactions, that the conduct alleged on the part of the brokers was so plainly dishonest that it might be arguable that a client could reasonably expect his or her solicitor to disclose that fact.
24 I am not to be taken, in what I have said above, to be expressing a concluded view that it is or is not possible, in relation to any particular facts, to plead that a failure to inform the plaintiffs of them could be misleading or deceptive. What concerns me at present however is that there is a great variety of factual circumstances pleaded, and that it is embarrassing to lump them all together in a single pleading with the
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- bare assertion that the plaintiffs were reasonably entitled to assume in respect of all of them that, were they known to the solicitors, they would be disclosed. In my view this pleading is still defective. It is perhaps a further example of the difficulty of pleading a claim of this complexity in the one document.
Agency of broker – defendants' retainer
25 There has been some recasting of the pleading of the facts which it is said give rise to the conclusion that each plaintiff retained the defendants as solicitors in relation to one or more transactions. In part, the retainer is said to be in writing, in a letter from the brokers "as agent" for each plaintiff. The agency is pleaded in par 1.2 and is said to arise from certain documents sent by the broker to each plaintiff and from the broker's conduct. The retainer is also said to be capable of being inferred or implied from certain conduct by the defendants and from certain matters which are pleaded in par F12.1 of the statement of claim.
26 The difficulty with par F12.1, is that it contains a collection of facts only some of which are capable of applying to certain plaintiffs. For example, par F12.1.3 refers to the lodging of a caveat by the defendants "on at least one occasion". At some stage it will be necessary to identify with greater precision which plaintiffs the various allegations in paragraph F12.1 are capable of referring directly to. For the moment, although there are, as I observed in my earlier reasons, certain matters in relation to the retainers which would require particularisation if particulars were sought, the pleading does not seem to me to be so defective that it should not be permitted.
The second retainers
27 This was an aspect of the statement of claim in relation to which previously I considered there was a fundamental defect, being no relevant plea of loss. There is now a plea that the plaintiffs have suffered loss and damage because they have "lost the opportunity of recovering their loss in mid 1997 or any date before this action was commenced and lost income on those moneys from mid 1997". The difficulty to which I referred in my earlier reasons remains. It is not clear from the pleading how any plaintiff could have suffered loss merely from the failure of the defendants to provide the advice which it is alleged should have been given. The plaintiffs may have not had the opportunity of recovering their loss in mid 1997. However, it is not clear how that inability to recover at a particular time has caused loss and damage. The matter was clarified somewhat during the course of
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- submissions, in which I understood the plaintiffs' counsel to suggest that the importance of recovery at an earlier rather than a later time was that at an earlier time, in respect of at least some of the plaintiffs, action could have been taken while the broker was still solvent. As I understand it, there is now no prospect of any recovery against the broker. That concept however finds no place in the current pleading. This aspect of the pleading remains defective.
Separate pleading
28 In my earlier reasons I noted that, at that time, the defendants submitted that the allegations and issues were so complex that the attempt to combine in one statement of claim some 77 groups of plaintiffs was impossible, in the sense that no statement of claim could be pleaded which would be other than embarrassing and vexatious. I did not that stage accept that conclusion. In theory, it seems to me that it is not necessarily correct. However, in the present application the defendants submitted that the further amendments illustrated the difficulty, if not the impossibility, of dealing with all these matters in a single pleading.
29 In my view it is necessary to take some steps in order to move this action forward. I am conscious not only of the fact that there are a very large number of plaintiffs in this action who wish to have their rights determined, but that there are a number of other similar actions relating to other solicitors, in which actions there are also large numbers of plaintiffs. It seems to me that it is desirable to attempt to arrive as soon as is practicable at a pleading which enables at least some issues to be identified and determined in a way which might provide guidance for this and future actions.
30 With that in mind, I now accept the defendants' submission that the plaintiff should be required to plead out and particularise just one loan transaction as a "template". The first loan in time is the Gardeb Victoria Park loan which is currently pleaded at pars 81 – 89 of the statement of claim. That, in my view, should now be pleaded separately. Obviously, the plaintiffs would wish to, and should be permitted to, plead the background retainers leading up to that transaction.
31 Concentrating on one claim would have the useful effect of permitting the plaintiffs to identify with particularity such matters as precisely which of the matters pleaded in par F12 (relating to the implied retainer) applied to those plaintiffs, what circumstances surrounding the transaction with those plaintiffs have the effect of
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- making the solicitors' silence misleading and deceptive, and matters of that kind. It would be my expectation that it would then be possible to have a statement of claim which was both of manageable size, and which dispensed with at least some of the cross-referencing which is currently the cause of so much confusion. Whether that is ultimately achieved by one statement of claim in narrative form, or by the use of some supplementary schedules and the segregation so far as possible of truly non-contentious facts, is a matter which I leave to the plaintiffs, although it appears to me still that the latter course has some merit.
32 So far as the later transactions in that action are concerned, while they obviously continue to be part of the action, further pleading of them should be deferred for the present.
Consolidation
33 I also in my earlier reasons dealt with an application by the plaintiffs to consolidate the claim by the cross-respondents in actions COR 203, 204 and 205 of 1999 with this action. At that stage I noted that it was desirable that the other parties in those actions be given the opportunity to be heard. I have since heard from two of them; Mr Grida who appeared by counsel and Mr Hamilton who appeared in person. Those submissions were extremely useful.
34 In the corporations actions, the cross-claimants are investors who lent money through the brokers Blackburn and Dixon. They have that in common with the plaintiffs in the present action. Unlike the present action, there are a number of other parties, who are sued in different capacities, not merely being either investors or solicitors. The cross-respondents from whom I heard are former employees of Blackburne and Dixon against whom notices of contribution in those proceedings have been issued by the defendants in the present action. It appears that save for the actions against the solicitors and the contribution proceedings brought by them, the action as between the other parties has been discontinued or settled.
35 Although in my earlier reasons, based on the understanding I then had of the COR actions, I observed that those actions were not far advanced, it was put to me, and I accept the submission, that those other actions are significantly more advanced than the present action. The pleadings have closed or in some cases been dispensed with. Discovery has been given. In at least one of the actions, mediation has occurred, several years ago, and notices to admit facts have been issued and answers given.
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36 An inspection of the court file in each case reveals that those other actions have proceeded slowly. In COR 203 of 1999, there appears to have been no substantial step taken since 2001, although there were some consent orders in 2002. In COR 204 of 1999, the same observation could be made, while in COR 205 of 1999, no substantial steps have been taken since a minute of substituted cross-claim in April 2001 (leaving aside in each case the summons to consolidate the actions, and some notices of change of solicitor).
37 What seems to have happened in the COR actions is that, as was submitted to me by the cross-respondents who appeared, attention has been turned by the present plaintiffs' solicitors to the larger action presently before me, and related actions. That action is presently plainly in its early stages and a very long way from being ready for trial.
38 So far as the cross-respondents themselves are concerned, Mr Grida is, as I have noted, a former employee of Blackburn and Dixon as is Mr Hamilton. Mr Grida, unlike the plaintiffs in the action before me, who are funded by a litigation funder, or the defendants who are represented by an insurer, is plainly not in a position to participate on anything like equal terms in an action the size of the present one. Mr Hamilton's position is even more difficult. In an attempt to persuade the solicitors for the defendants in the present action that maintenance of the contribution proceedings against him would be futile, Mr Hamilton has condescended to the filing of an affidavit setting out briefly his means and circumstances. It appears that he has almost no assets, that he relies upon an allowance in the nature of an unemployment allowance and that he is or has been involved in other actions in the Federal Court. Before me, he has made submissions as to the probable effect of involvement in an action the size of the present one upon his employment prospects into the foreseeable future, and his health.
39 Relevant considerations appear to me to be these. If, as the plaintiffs in the present action submit, the "background retainers" and the argument in relation to the cumulative knowledge of the defendants is relevant in the corporations actions, as it is alleged to be in the present action, then it is open to the plaintiffs to seek to amend to raise those issues in the corporations actions. If those issues are to be raised in the corporations actions and in this action, there is plainly considerable advantage in having those issues determined in one proceeding. The alternative would be to incur additional expense on the part of the plaintiffs and the defendants, to waste court time, and to risk the "scandal of conflicting decisions". However, it seems to me that it
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- would be inappropriate to consolidate with an action so little advanced as the present one, actions which at least prima facie are much further advanced and indeed, on the face of it, could be entered for trial at any time. Further, it is plainly unfair to the other cross-respondents in those corporations actions to drag them into a proceeding the size of the present one, merely so that they can be bound by any findings which may ultimately be made. I am satisfied that it would be impossible for persons such as Mr Hamilton and Mr Grida to participate in any sensible way in an action such as the present one if an order for consolidation were made at this stage.
40 I should further note that it appears to be accepted on all sides that there may be limitation issues arising in relation to claims which the plaintiffs may now seek to pursue in the corporations actions. In circumstances where: those actions have been on foot for a considerable time; there is doubt surrounding the question of whether the claims can be amended so as to align them completely with the claims pleaded in the present action; there have recently been lengthy periods of dormancy which it appears to me might prima facie permit some parties to apply to have the claims of others dismissed for want of prosecution; and where in their present form, the corporations actions are plainly much less complex than the present action and the involvement of some of the parties in the corporations actions in the present action would cause them hardship, it seems to me that the best course is to refuse leave to consolidate.
41 If the parties represented by Solomon Brothers in the corporations actions were to seek and to obtain leave to amend their pleadings in those actions so as to make them substantially identical with the pleadings in the present action, when the form of that pleading is finally settled, then the issue may have to be revisited. At some stage, it may be desirable that there be a formal order for consolidation but with the trial of separate issues, or that there be orders managing the actions together and ordering that the evidence in one stand as the evidence in another, or matters of that kind. So far as the plaintiffs are concerned, as I understand the submissions made to me, their evidence is very largely documentary and rests very largely upon the inferences to be drawn from what are said to be undisputed documents. If that is the case, then the type of parallel programming to which I have referred should not occasion significant difficulty, or prejudice to any party. However, it seems to me that it is inappropriate to explore those questions at present. It seems to me that at present it is appropriate for
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- those corporations actions to remain in the Corporations List, and for any parties who wish to proceed with them to take steps to do so.
Summary
42 I would decline to grant the application for consolidation. If in future there is some significant change in the claims made in the corporations action, so as to shift the balance in favour of consolidation or some parallel programming, that issue may at that future time be revisited. So far as the present action is concerned, I would not grant leave to the plaintiffs to amend in the form of the present further amended minute of statement of claim. I would, of course, grant leave to replead. However, at this stage I would direct that the minute of any further amendment to the statement of claim deal only with transactions up to and including that known as the Gardeb Victoria Park matter.
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