Lord v AgReserves Australia Ltd - [2006] FCA 598

FEDERAL COURT OF AUSTRALIA
Lord v Agreserves Australia Limited ACN 080 646 251 [2006] FCA 598
PRACTICE AND PROCEDURE – joinder of claims – application by liquidator – claim against defendants for unfair preferences
Federal Court Rules – Rule 6 Order 2
Dean-Willcocks v Air Transit International Pty Limited (2002) 55 NSWLR 64 discussed
Gloria Marshall Australia Pty Limited (in liq) v Bell Press Pty Limited [2002] NSWSC 1191 referred to
JOHN FREDRICK LORD V AGRESERVES AUSTRALIA LIMITED ACN 080 646 251 AND ORS
NSD 439 OF 2006
JACOBSON J
11 MAY 2006
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NSD439 OF 2006

BETWEEN:

JOHN FREDRICK LORD
PLAINTIFF

AND:

AGRESERVES AUSTRALIA LIMITED
FIRST DEFENDANT

AND THE DEFENDANTS LISTED

IN THE ATTACHED SCHEDULE

JUDGE:

JACOBSON J

DATE OF ORDER:

11 MAY 2006

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:
1.The 1^st Defendant is given leave to file in court the affidavit of Mr Addison sworn 9 May 2006.
2.The plaintiff have leave to discontinue the proceedings against the 7^th, 8^th, 10^th, 24^th, 31^st, 34^th and 38^th defendants.
3.Matters NSD442/06 to NSD469/06 and NSD 471/06 to NSD480/06 to be dismissed.
4.The plaintiff be granted leave, nunc pro tunc, to join in the proceedings the remaining defendants listed in the Schedule to the Originating Process under Order 6 rule 2 of the Federal Court Rules.
5.The plaintiff is directed to:
(a) to file and serve on or before 14 July 2006 all the evidence upon which it relies on the issue of solvency; and
(b) to file and serve on or before 2 June 2006 a statement of claim.
6.The defendants file and serve a defence on or before 18 August 2006.
7.The plaintiff to serve a set of draft directions for the ongoing conduct of the proceedings on each defendant no later than 25 August 2006.
8.If any defendant agrees with the plaintiff’s draft directions, either in their original form, or as varied by agreement, there is no obligation on that defendant to appear before the Court at the next hearing date.
9.The proceedings be adjourned until 31 August 2006.
10.The parties are to indicate on all documents filed in the proceedings the identity of the party filing the document in bold uppercase and immediately below the title of the relevant document.
11.Costs to be reserved.

THE COURT NOTES THAT:
The plaintiff mentions the matter for the 2^nd, 3^rd and 15^th Defendants, who indicate neither support nor resistance to the application and do not wish to take part in proceedings today.
The 1^st Defendant mentions the matter for the 12^th Defendant (The Commonwealth of Australia).
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
No: (P)NSD439/2006
SCHEDULE OF DEFENDANTS
(as at 11 May 2006)

AEP INDUSTRIES…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2006] FCA 598
Decision Date: 11 MAY 2006

CaseChat Overview and Summary

The case of Lord v AgReserves Australia Ltd involves a plaintiff seeking leave under Order 6 Rule 2(b) of the Federal Court Rules to join various defendants as parties in matter NSD 439 of 2006. The defendants, which include both national corporations and smaller firms, are based in Griffith and some are from interstate. The claims against the defendants vary, with the smallest being just under $10,000 and the largest over $3 million. The plaintiff filed an interlocutory originating process on 6 March 2006, seeking to join 38 defendants in the existing proceedings. The plaintiff acknowledges that Order 6 Rule 2(a)(ii) is not met as the claims do not arise from the same transaction or series of transactions, hence the need for leave under Order 6 Rule 2(b). The defendants oppose the application.

The legal issues before the court involved whether the plaintiff should be granted leave to join the defendants under the Federal Court Rules, specifically Order 6 Rule 2(b). The court had to consider the advantages and disadvantages to both the plaintiff and the defendants, as well as the efficient use of court resources, the commonality of issues, and the ability to manage the proceedings effectively. The court applied the test set out by Austin J in Dean-Willcocks v Air Transit International Pty Limited and followed by Young CJ in Eq in Gloria Marshall Australia Pty Limited (in liq) v Bell Press Pty Limited, focusing on a common-sense approach.

The court granted the plaintiff's application for leave to join the defendants nunc pro tunc. It found that the advantages of joining the proceedings outweighed the disadvantages, considering the commonality of issues and the ability to manage the proceedings efficiently. The court also made several orders to manage the proceedings, including the requirement for the plaintiff to file evidence and a statement of claim, and set deadlines for filing defences and draft directions. The court further adjourned the proceedings and reserved costs.

The court's orders included granting leave for the plaintiff to join the remaining defendants, setting deadlines for filing evidence and statements of claim, and directing the filing of defences and draft directions. It also made provisions for the identification of parties on documents and adjourned the proceedings. Costs were reserved for later determination.

Orders

Orders of the court

1. The 1st Defendant is given leave to file in court the affidavit of Mr Addison sworn 9 May 2006.

2. The plaintiff have leave to discontinue the proceedings against the 7th, 8th, 10th, 24th, 31st, 34th and 38th defendants.

3. Matters NSD442/06 to NSD469/06 and NSD 471/06 to NSD480/06 to be dismissed.

4. The plaintiff be granted leave, nunc pro tunc, to join in the proceedings the remaining defendants listed in the Schedule to the Originating Process under Order 6 rule 2 of the Federal Court Rules.

5. The plaintiff is directed to:

(a) to file and serve on or before 14 July 2006 all the evidence upon which it relies on the issue of solvency; and

(b) to file and serve on or before 2 June 2006 a statement of claim.

6. The defendants file and serve a defence on or before 18 August 2006.

7. The plaintiff to serve a set of draft directions for the ongoing conduct of the proceedings on each defendant no later than 25 August 2006.

8. If any defendant agrees with the plaintiff’s draft directions, either in their original form, or as varied by agreement, there is no obligation on that defendant to appear before the Court at the next hearing date.

9. The proceedings be adjourned until 31 August 2006.

10. The parties are to indicate on all documents filed in the proceedings the identity of the party filing the document in bold uppercase and immediately below the title of the relevant document.

11. Costs to be reserved.

THE COURT NOTES THAT:

The plaintiff mentions the matter for the 2nd, 3rd and 15th Defendants, who indicate neither support nor resistance to the application and do not wish to take part in proceedings today.

The 1st Defendant mentions the matter for the 12th Defendant (The Commonwealth of Australia).

Background

Background to the litigation

The plaintiff seeks leave under Order 6 Rule 2(b) of the Federal Court Rules to join the various defendants as defendants in matter NSD 439 of 2006. Background The defendants are in some cases national corporations but others are smaller firms or companies. The defendants include the Commonwealth of Australia. The company carried on business mainly in Griffith and many of the defendants are located in the Griffith area. A number of defendants are from interstate. The claims when grouped for each defendant range from just under $10,000 to, in one case, over $3 million. The plaintiff filed an interlocutory originating process in matter NSD439 of 2006 on 6 March 2006, seeking an order under Order 6 Rule 2, that the plaintiff have leave to join in the proceedings all of the 38 defendants listed in the schedule to the originating process which was filed on the same day. The plaintiff accepts that Order 6 Rule 2(a)(ii) has not been met because the claims do not arise out of the same transaction or series of transactions. Leave is therefore required under order 6 rule 2(b). Since the proceedings have already been commenced, leave is required nunc pro tunc. Mr Taylor SC appears for the first defendant. Mr J.T. Johnson appears for 13 of the defendants. They oppose leave. The plaintiff relies on the test stated by Austin J in Dean-Willcocks v Air Transit International Pty Limited (2002) 55 NSWLR 64 (“Dean-Willcocks”), in particular, at [34]. Mr Taylor and Mr Johnson accept that this is the correct approach although they say that the case is distinguishable from the present proceedings. Austin J said at [34] in Dean-Willcocks that the court's task is to identify and weigh the advantages and disadvantages to the plaintiff and the defendants as a whole, and in terms of the efficient use of the court's resources, having regard to the commonality of issues raised by each claim and the court's ability to case manage the proceedings so as to minimise disadvantages. His Honour said at [35] that there are some special features of unfair preference proceedings which may justify the grant of leave even though leave would not be granted in similarly constituted proceedings which have a different subject matter. It is unnecessary to repeat the three considerations to which his Honour referred at [35]. The approach adopted by Austin J was followed by Young CJ in Eq in Gloria Marshall Australia Pty Limited (in liq) v Bell Press Pty Limited [2002] NSWSC 1191. His Honour considered that the best way of dealing with the matter was to apply a common sense approach to the issue. I respectfully follow what was said by Austin J and by the Chief Judge in Equity as guiding the exercise of my discretion in the present case.Discussion The present proceedings are at a very early stage. The "consolidated" proceeding and the 38 separate proceedings were commenced close to the expiration of the limitation period. The plaintiff proposes to discontinue against seven of the defendants, leaving 31 in the consolidated proceeding or 31 separate actions if I refuse leave in matter NSD439 of 2006.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

JACOBSON J

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Established by: JACOBSON J

Full text does not contain this section.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD439 OF 2006

BETWEEN:	JOHN FREDRICK LORD PLAINTIFF
AND:	AGRESERVES AUSTRALIA LIMITED FIRST DEFENDANT AND THE DEFENDANTS LISTED IN THE ATTACHED SCHEDULE
JUDGE:	JACOBSON J
DATE OF ORDER:	11 MAY 2006
WHERE MADE:	SYDNEY