Newbey v Smoothy - [2023] WADC 45

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION:   PERTH
CITATION:   NEWBEY -v- SMOOTHY [2023] WADC 45
CORAM:   REGISTRAR JEYAMOHAN
HEARD:   29 MARCH 2023
DELIVERED          :   Ex tempore
PUBLISHED           :   21 APRIL 2023
FILE NO/S:   CIV 1954 of 2020
BETWEEN:   HELEN LEE NEWBEY
Plaintiff
AND
BRENT RONALD SMOOTHY
First Defendant
RACHEL MARY BURN
Second Defendant
HILLSIDE STATION (WA) PTY LTD
Third Defendant
RACHLAN HOLDINGS PTY LTD
Fourth Defendant

FILE NO/S: CIV 4983 of 2022
BETWEEN: HELEN LEE NEWBEY
Plaintiff
AND
BRENT RONALD SMOOTHY
First Defendant
RACHEL MARY BURN
Second Defendant
HILLSIDE STATION (WA) PTY LTD
Third Defendant
RACHLAN HOLDINGS PTY LTD
Fourth Defendant

Catchwords:

Practice and procedure - Plaintiff's application for consolidation of actions - Relevant considerations - High degree of commonality between parties, relationships and pleaded issues arising across both actions - Case management considerations - Turns on own facts

Legislation:

Rules of the Supreme Court 1971 (WA) O 1 r 4A, O 1 r 4B, O 83

Result:

Application for consolidation of actions refused but CIV 4983 of 2022 and CIV 1954 of 2020 to be heard together

Representation:

CIV 1954 of 2020

Counsel:

Plaintiff	:	Mr P A Martino
First Defendant	:	Mr C Breheny
Second Defendant	:	Mr C Breheny
Third Defendant	:	Mr C Breheny
Fourth Defendant	:	Mr C Breheny

Solicitors:

Plaintiff	:	P A Martino
First Defendant	:	Pacer Legal
Second Defendant	:	Pacer Legal
Third Defendant	:	Pacer Legal
Fourth Defendant	:	Pacer Legal

CIV 4983 of 2022

Counsel:

Plaintiff	:	Mr P A Martino
First Defendant	:	Mr C Breheny
Second Defendant	:	Mr C Breheny
Third Defendant	:	Mr C Breheny
Fourth Defendant	:	Mr C Breheny

Solicitors:

Plaintiff	:	P A Martino
First Defendant	:	Pacer Legal
Second Defendant	:	Pacer Legal
Third Defendant	:	Pacer Legal
Fourth Defendant	:	Pacer Legal

Case(s) referred to in decision(s):

Lois Nominees Pty Ltd v QBE Insurance (Australia) Ltd [2011] WASC 208; (2011) 42 WAR 75
Sino Iron Pty Ltd v Mineralogy Pty Ltd [2019] WASCA 80; (2019) 55 WAR 89
Walthamstow Pty Ltd v Caratti [2023] WASC 76

REGISTRAR JEYAMOHAN:

[This decision was delivered extemporaneously on 29 March 2023 and edited from the transcript.]

Introduction and summary

By chamber summons dated 12 December 2022, pursuant to O 83 r 1 of the Rules of the Supreme Court 1971 (WA) (RSC), the plaintiff seeks orders that:
1.action number CIV 4983 of 2022 be consolidated with action number CIV 1954 of 2020 and the consolidated action be carried on as one action (Application);
2.CIV 1954 of 2020 be designated at the lead action.
The Application is opposed by the defendants in each of those actions.
For the reasons set out below, the plaintiff's Application for consolidation of actions is refused but CIV 4983 of 2022 and CIV 1954 of 2020 be heard together with CIV 1954 of 2020 designated as the lead action.

Background

The plaintiff in each action is Mrs Helen Newbey. The plaintiff commenced CIV 1954 of…

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.

Keep reading for free

Create a free CaseChat account to read Newbey v Smoothy and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2023] WADC 45
Decision Date: 21 APRIL 2023

CaseChat Overview and Summary

The District Court of Western Australia considered an application by the plaintiff, Newbey, for the consolidation of two separate actions, CIV 4983 of 2022 and CIV 1954 of 2020. The nature of the dispute involved the commonality of issues, relationships between the parties, and case management considerations. The plaintiff sought to consolidate these actions to streamline the proceedings and reduce the duplication of efforts and costs.

The primary legal issue before the court was whether the actions should be consolidated based on the degree of commonality between the parties, the relationships, and the issues raised. The court had to weigh these factors against the potential benefits of consolidation, considering case management principles and the unique aspects of each action.

The court determined that while there was a high degree of commonality between the parties, relationships, and issues in the two actions, the application for consolidation was refused. However, the court ordered that the actions be heard together, with CIV 1954 of 2020 designated as the lead action. The judge encouraged the parties to confer on the form of orders, including the timetable and other programming directions to ensure timely and efficient progress of each action. This approach aimed to balance the interests of the parties while maintaining the integrity of each case.

Orders

Orders of the court

Orders

25. The plaintiff's application for consolidation of actions is refused but CIV 4983 of 2022 and CIV 1954 of 2020 be heard together with CIV 1954 of 2020 designated as the lead action.

26. I request that the parties confer as to the form of orders including the timetable and other programming directions which should now be to best ensure the timely and efficient progress of each of the actions.

I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.