Kalipoll Pty Limited v TMG Developments Pty LimitedFish20 Pty Limited v TMG Developments Pty LimitedBread of France (NSW) Pty Limited v TMG Developments Pty Limited

[2006] NSWDC 111

CITATION:	Kalipoll Pty Limited v TMG Developments Pty LimitedFish20 Pty Limited v TMG Developments Pty LimitedBread of France (NSW) Pty Limited v TMG Developments Pty Limited [2006] NSWDC 111
HEARING DATE(S):	21/11/06
JUDGMENT DATE:	30 November 2006
JUDGMENT OF:	Rolfe DCJ
DECISION:	1. All three motions are dismissed.; 2. Costs should follow the event on the ordinary basis.; 3. I direct the exhibits be returned.
CATCHWORDS:	Applications for proceedings to be heard together - Exercise of Court's discretion in circumstances where the admissibility of similar fact evidence will be a significant issue at trial - Utility of making orders - Applications refused.
LEGISLATION CITED:	Trade Practices Act 1974 (Cth) Evidence Act 1995
CASES CITED:	Mister Figgins Pty Ltd v Centrepoint Freehold Pty Limited 36 ALR 23 D F Lyons Pty Limited v Commonwealth Bank of Australia (1991) 28 FCR 597 Jospin v Copulos Venture Capitol BC 9405953 Jacara v Perpetual Trustees WA (Ltd) (2000) FCA 1986
PARTIES:	Kalipoll Pty Limited (Plaintiff/Applicant) Fish20Pty Limited (Plaintiff/Applicant) Bread of France (NSW) Pty Limited (Plaintiff/Applicant) TMG Developments Pty Limited (Defendant/Respondent)
FILE NUMBER(S):	2893/04; 2894/04; 2895/04
COUNSEL:	R Alkadamani (Plaintiffs/Applicants) R McHugh SC with K Richardson (Defendant/Respondent)

JUDGMENT

1 In each of these three cases the plaintiff filed a Notice of Motion on 28 July 2006 seeking orders that the proceedings be heard together and the evidence in one proceeding be evidence in the other; alternatively, that the proceedings be consolidated; alternatively, that the proceedings be joined.

2 The defendant opposes the Court making any of the three orders.

3 The plaintiffs seek the orders pursuant to Part 28 Rule 5. The plaintiffs concede that this is not a case where Rule 5 (b) operates, but maintain that the Court ought exercise its discretion under Rule 5 (a) or 5 (c) or both. Because of the plaintiffs’ concession that Rule 5 (b) does not apply, this means that Part 6 Rule 19 has no operation.

4 The background is that the defendant redeveloped the Manly wharf in 2002-2003, having leased the property from a statutory authority. Each of the plaintiffs entered into sub-leases with the defendant of various parts of the wharf in 2002 or 2003. In each case, the principal person involved from the defendant’s point of view in negotiating the terms of the sub-lease was Ms Habib, the defendant’s leasing manager.

5 Each plaintiff has brought its claim against the defendant primarily on the basis of contravention of s 51A and s 52 of the Trade Practices Act 1974 (Cth) arising out of a number of oral misrepresentations alleged to have been made by Ms Habib to each of the plaintiffs on separate occasions. For present purposes it is unnecessary to refer to the plaintiffs’ claims which are pleaded in the alternative.

6 The plaintiffs submit that the proceedings should be heard together because they say there are numerous common issues as to both fact and law. First, the plaintiffs allege that, common to each case, six oral misrepresentations were made to them by Ms Habib as follows:

a. Manly wharf would be totally tenanted and open for business on completion of the redevelopment.
b. Manly wharf would have a major tenant, namely, David Jones.
c. Manly wharf would become the next Cockle Bay in terms of quality, profile and business opportunity.
d. Manly wharf would be professionally marketed in a manner similar to the marketing campaign for Cockle Bay.
e. Manly wharf would have 24 hour a day security and lighting.
f. There would be a large car park developed under Manly wharf which customers to the wharf would be entitled to use free for two hours at all times.

7 Secondly, the plaintiffs say that it is common to each case for them to establish that the defendant did not have reasonable grounds to make the representations.

8 Also common to each case is what accounting methodology ought be adopted to calculate losses suffered by the plaintiffs.

9 To make out each of the misrepresentations, each plaintiff relies on conversations between its representatives and Ms Habib separate from the conversations she had with the representatives of the other plaintiffs. For example, in the Fish20 proceedings the misrepresentations occurred in telephone conversations between January and February 2002 and repeated in February and March 2002; in the Bread of France proceedings the misrepresentations occurred in four telephone conversations between January and March 2002 and at two meetings in July 2002; and in the Kalipoll proceedings the misrepresentations occurred between April and July 2002 and were repeated at various meetings in August, November and December 2002.

10 Apart from the six common misrepresentations, there are another ten misrepresentations, three of which are common to two of the proceedings. The remaining seven misrepresentations only arise in one proceeding.

11 It can be gleaned from the affidavit evidence before the Court on the Motions that, on the question of liability, if all three cases are heard together, there will be evidence concerning approximately 60 separate oral communications. For example, in the Kalipoll proceedings, the plaintiff’s witnesses give evidence of 20 separate oral communications; in the Bread of France proceedings, there is evidence of 19 separate oral communications; and in the Fish20 proceedings, there is evidence of 21 separate oral communications. In the Kalipoll proceedings there is also evidence of a number of oral communications among the plaintiff’s witnesses and in the Fish20 proceedings there is some evidence of discussions between the plaintiff and its solicitor.

12 In each case the evidence of Ms Habib will be critical because she denies making the representations and says she followed a standard format that she used with all prospective tenants of Manly wharf. This “format” was a long speech which Ms Habib sets out in each of her affidavits in the three proceedings. The format evidence differs in significant respects from what each of the plaintiffs’ witnesses say took place in their discussions with Ms Habib. Because of this, the plaintiffs submit that their cases are inextricably intertwined and therefore should be heard together. For example, even if the Bread of France proceedings were heard separately, certain lay witnesses who have sworn affidavits in the Kalipoll and Fish20 proceedings would be called to give evidence about the same representations having been made to them and to rebut the assertion that Ms Habib always followed her standard format when she had discussions with prospective tenants.

13 The plaintiffs have served notices under s 99 of the Evidence Act 1995 seeking to rely on this type of evidence if it were held to be tendency evidence or coincidence evidence. The defendant has foreshadowed its objection to this evidence, including any similar fact evidence which does not fall within the tendency rule or the coincidence rule. The bases of the objection will be, first, relevance and, secondly, prejudice to the defendant if the evidence does not have a significant probative value: see ss 55, 97 and 98 of the Evidence Act 1995.

14 Whichever way one looks at it, therefore, the admissibility of the evidence referred to above will loom large, even if the proceedings are heard separately. The admissibility of this evidence is for the trial Judge to determine. Nevertheless, the defendant’s foreshadowed objection has a bearing on whether or not the Court should fix the proceedings for hearing at the same time.

15 The plaintiffs rely on the decision of Northrop J in Mister Figgins Pty Ltd v Centrepoint Freehold Pty Limited 36 ALR 23, a case concerned with misrepresentations made by a landlord to a tenant. Similar fact evidence of representations made to other tenants was admitted into evidence. The defendants say that in subsequent cases in the Federal Court of Australia the decision of Gummow J in D F Lyons Pty Limited v Commonwealth Bank of Australia (1991) 28 FCR 597, where similar fact issue was rejected, has been preferred: see Jospin v Copulos Venture Capitol BC 9405953 and Jacara v Perpetual Trustees WA (Ltd) (2000) FCA 1986.

16 These cases, although not binding, are of guidance. They demonstrate that the admissibility of similar fact evidence is not straightforward. As the defendant points out, a number of scenarios might eventuate should the Court grant the plaintiffs’ applications in the exercise of its discretion.

17 If the proceedings were heard together and the Court upheld some or all of the defendant’s objections, the trial Judge would still hear all the evidence. The Judge would be required to separate physically and mentally the evidence in one plaintiff’s claim from use in the other two plaintiffs’ claims. The task would be too cumbersome and onerous because the number of communications involved is likely to be 60. The hearing time at trial would be prolonged as a result. It is not in the interests of justice for the Court to exercise its discretion under Part 28 Rule 5 to bring about this result.

18 An order for consolidation does not provide an answer. A consolidation order would mean there was only one proceeding before the Court and this could prevent the defendant from making good its objection. As well, the plaintiffs’ claims would be limited to the Court’s jurisdictional amount of $750,000 inclusive of all three claims. Each of these scenarios would be an unjust result.

19 Accordingly the Court’s order is that all three motions are dismissed. Costs should follow the event on the ordinary basis, but I will entertain submissions if the parties wish to be heard. I direct that the exhibits be returned.

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