Morgan, R.C. v Henderson, G.M

[1994] FCA 362

JUDGMENT No.

IN THE FEDERAL COURT OF AUSTRALIA	)
1
VICTORIA DISTRICT REGISTRY	1 No. VG 95 of 1994
)
GENERAL DIVISION	)
B E T W E E I ? :

ROBERT C-S MORGAN & ANOR

Applicants

- and -

GEOFFREY M HENDERSON & ORS Respondents

JUDGE :  Heerey J

g: 19 May 1994

PLACE :  Melbourne

EX TEMPORE REASONS FOR JUDGMENT

I think I have heard enough to be satisfied that generally speaking appropriate that there should be an Order under 0.29 r.5 that these two proceedings be heard together. I wish to make it clear I am not ruling out the possibility at a future time of a trial of some separate issue, but that would need a closer examination.

It is plain there is the potential for a large amount of

The claim of the Morgans on its face does raise a substantial number of issues which are also raised in the main action. I refer particularly to the representations alleged to have been made and also the allegation which I could compendiously describe as conflict of duty, that is the alleged failure of the accountants and solicitors to disclose "success fees" and the like.

evidence in relation to those issues. Just to take one example, the question of the falsity of the representations would raise questions as to the viability of this building as it could have been reasonably anticipated at the time of the representations. There was talk of the "scaling down" of the Morgans' claim, but that has not happened up until now and whether or not it is a good idea for them, in their own interests, to scale down their claim would need to be the subject of further careful consideration by them.

As I said in the course of argument, I am very sympathetic to the dilemma that the Morgans find themselves in with the costs they have incurred to date in their proceeding. But if their proceeding were to be run in isolation very much more expense would be incurred. I am not at all persuaded that they would not be better off sharing with a large number of other applicants the cost of the main claim.

There is the further consideration that, as Mr Clarke told me,

as cross-respondents to some cross-claims.	apparently the Morgans are already enmeshed in the main claim
There is also the factor that it would be highly undesirable where issues of credit arise over the making of representations, and perhaps other matters such as non- disclosure of the "success fees", if there were separate trials and the risk of conflicting findings being made by different judges. So all told I am satisfied that it is an
appropr ia te case f o r making an order under 0. 29 r.5.
A s I mentioned t h e fu tu re conduct of d i rec t ions hearings i n
t h i s matter w i l l be heard by me. I t w i l l be a matter f o r t h e
p a r t i e s t o l i a i s e with my a s soc i a t e s o t h a t it can be f i t t e d
i n a t a convenient time, both f o r coilnsel and f o r myself.
I w i l l vacate t h e hearing da te of 1 July.
I reserve t h e cos ts .

I certify that this and the preceding three (3) pages are a true copy of the reasons for judgment of his Honour Mr Justice Heerey.

Dated:	- 19 May 1994
UL	Assoclate

Counsel for the applicants:	R Kendall
Solicitor for the applicants:	David Johnson
Counsel for the first, second,	D Clarke
sixth to twelfth respondents:
Solicitor for the first, second,	Anderson Barker Gosling
sixth to twelfth respondents:
Counsel for the third and fourth	J Armstrong
respondents:
Solicitor for the third and	Sly & Weigall
fourth respondents:
Counsel for the fifth  respondent:
Solicitor for the fifth	Thomsons .
respondent:
Date of hearing:	19 May 1994

JUDGES' CHAMBERS
FEDERAL COURT OF AUSTRALIA
450 LITTLE B O U m E STREET

MELBOURNE. 3000

9 June 1994

Mary Smart

Federal Court of Australia

Principal Registry

Law Courts Building

Queens Square

SYDNEY NSW 2000

Dear MS Smart,

p C Woraan h Anor and Geoffrev M Henderaon h Ors

No. VG 95 of 1994

I enclose a copy of the judgment delivered by his Honour M r

Justice Heerey in the above matter on 19 May 1994

A diskette record of the judgment is also enclosed.

This judgment is not for general distribution.

Associate to Heerey J