Newbey v Smoothy
[2023] WADC 45
•21 APRIL 2023
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 2020 by writ of summons and indorsement of claim dated 27 May 2020 against each of the first, second and third defendant. On or about 4 November 2020, the, now, fourth defendant was added to the proceedings by consent of the parties.
The plaintiff's claim against each of the defendants in CIV 1954 of 2020 is for delivering up of goods, namely a 2012 Komatsu WA250PZ‑6 wheel loader with serial number 77290 and vehicle identification number KMTWA103K01077290 (Loader); further and alternatively, damages for trespass, conversion and detention of the goods from 2 February 2017; interest and costs as pleaded in the plaintiff's amended statement of claim dated 4 November 2020.
The plaintiff's claim against each of the defendants in CIV 4983 of 2022 as set out in the writ and indorsement of claim dated 15 November 2022 is in identical terms to the claims in CIV 1954 of 2020 but includes an additional claim by the plaintiff as against the fourth defendant in its capacity as trustee for The Smoothy Family Trust and in its own right. The plaintiff has yet to file any statement of claim in CIV 4983 of 2022.
Legal principles
The scope and operation of O 83 was outlined by Beech J in Lois Nominees Pty Ltd v QBE Insurance (Australia) Ltd,[1] as follows:
77There is no presumption against consolidation: A Goninan & Co Ltd v Atlas Steels (Aust) Pty Ltd [2003] NSWSC 956 [22]. Although made in the context of the differently worded NSW rule about consolidation, Austin J's observation applies equally to the WA rules.
78Each case depends on its own facts and circumstances, Cameron v McBain [1948] VLR 245, 247; A Goninan & Co Ltd v Atlas Steels (Aust) Pty Ltd [22]; Saker v Creative Land Management Pty Ltd [2000] WASC 44 [2].
79Austin J said of the NSW rule that it is to be construed as a flexible rule of convenience in the administration of justice, suggesting that the court has the power to do what is necessary and appropriate to permit effective consolidation with a view to final determination of the real issues between the parties, with justice to all concerned: A Goninan & Co Ltd v Atlas Steels (Aust) Pty Ltd [42].
80In Cameron v McBain, 247 Herring CJ said that broadly the question on a consolidation application is whether in all the circumstances it is convenient, having regard to avoiding multiplicity of actions and to saving time and expense.
81Among the matters that may be relevant to the exercise of discretion regarding consolidation are: (1) whether it is convenient to consolidate the actions, including whether it will prevent multiplicity of actions and ensure savings of time and cost; (2) whether there are common questions of law or fact or a common transaction or series of transactions; (3) whether consolidation will cause prejudice or unfairness to any parties; (4) whether consolidation will be conducive to a just resolution of the issues; and (5) whether there are any practical matters which may make it inexpedient to consolidate[.]
[1] Lois Nominees Pty Ltd v QBE Insurance (Australia) Ltd [2011] WASC 208; (2011) 42 WAR 75 [77] ‑ [81].
In Sino Iron Pty Ltd v Mineralogy Pty Ltd,[2] the Court of Appeal applied with approval the observations made by Beech J in Lois Nominees Pty Ltd v QBE Insurance (Australia) Ltd and went on to add that the application of O 83 is to be construed and applied by regard to O 1 r 4B of the RSC:
409The observations of Nourse LJ (Woolf LJ & Fox LJ agreeing) in Arab Monetary Fund v Hashim (No 4),593 albeit directed to the relevant English rule, are also pertinent. His Lordship said that the rule permitting consolidation 'ought to be broadly construed', and that 'it is not the leaning of our courts to restrict procedural powers which may be useful to them unless the wording of the rules or the interests of justice require it'.
410Further, O 83 must be construed and applied so as 'best to ensure the attainment' of (amongst other things) (1) promoting the just determination of litigation, (2) disposing efficiently of the court's business, (3) maximising the efficient use of available judicial and administrative resources, and (4) facilitating the timely disposal of business.594
(FN 593: Arab Monetary Fund v Hashim (No 4) [1992] 4 All ER 860, 863 - 864.)
(FN 594: Order 1 r 4B RSC)
[2] Sino Iron Pty Ltd v Mineralogy Pty Ltd [2019] WASCA 80; (2019) 55 WAR 89 [409] - [410].
This court has the power to make an order that actions be heard together as an alternative to a formal order for consolidation, for which there is express power pursuant to O 83 r 1 RSC.
As observed by Justice Lundberg in Walthamstow Pty Ltd v Caratti:[3]
[3] Walthamstow Pty Ltd v Caratti [2023] WASC 76 [18] - [19].
18An order concerning the joint determination of actions, such as is sought by the plaintiff, is a case management order and so the court must have regard to the terms of O 1 r 4A and r 4B RSC and follow the course that best ensures the attainment of the objects set out in those rules: Moondancer Holdings Pty Ltd v Navarac Pty Ltd [2011] WASC 250 [5] (Allanson J). The objects expressed in O 1 r 4B RSC are:
(a)promoting the just determination of litigation; and
(b)disposing efficiently of the business of the Court; and
(c)maximising the efficient use of available judicial and administrative resources; and
(d)facilitating the timely disposal of business; and
(e)ensuring the procedure applicable, and the costs of the procedure to the parties and the State, are proportionate to the value, importance and complexity of the subject matter in dispute; and
(f)that the procedure applicable, and the costs of the procedure to the parties, are proportionate to the financial position of each party.
19Indeed, the Court of Appeal in Sino Iron Pty Ltd v Mineralogy Pty Ltd [2019] WASC 80; (2019) 55 WAR 89 [410] (Buss P, Murphy and Beech JJA) expressly noted the importance of these objects in the context of the construction and application of O 83 RSC. The sentiment expressed by the Court of Appeal is undoubtedly of equal application to the exercise of the power to determine whether actions should be heard together, as an alternative to formal orders for consolidation: Nelson [21] (Smith J).
Analysis
The plaintiff, Helen Lee Newbey relies on her affidavit sworn 29 November 2022 (Newbey Affidavit) and Paula Annette Martino sworn 24 March 2023 (Martino Affidavit).
The defendants rely on the affidavits of Brent Ronald Smoothy sworn 22 March 2023 (Smoothy Affidavit) and Matthew David Preistly sworn 22 March 2023 (Priestly Affidavit).
I have carefully considered the affidavit evidence and the outline of submissions filed with the court and the submissions made by counsel at the hearing on 29 March 2023.
The plaintiff and each of the named defendants are common parties to both actions.
Broadly, the two actions arise out of the delivering up of the Loader; further and alternatively, damages for trespass, conversion and detention of the goods from 2 February 2017; interest and costs. The commonality of the parties and the similar transactions point heavily in favour of the desirability of CIV 4983 of 2022 and CIV 1954 of 2020 being heard together.
In addition to the commonality of the parties to the actions, there are striking points of commonality across both action in relation to the various defences either pleaded and/or raised by way of submission at the hearing on 29 March 2023. It is somewhat premature to speculate as to the precise nature of the defences to be pleaded in CIV 4983 of 2022 in circumstances where the statement of claim in that proceeding has to be filed. However, the matters that appear out of the respective writ and indorsement of claim in both of CIV 4983 of 2022 and CIV 1954 of 2020 strongly suggest that there are likely to be similarities in the identify of potential material witnesses in each of the action in addition to some common questions of fact and law.
As to the central questions of fact and law, the summary of the respective pleaded cases outlined earlier in these reasons strongly demonstrates the overlapping nature of those questions across both CIV 4983 of 2022 and CIV 1954 of 2020.
While there are some differences between the issues raised in the actions, as already identified, the commonality of the critical questions of fact and law overwhelmingly points in favour of the desirability of the actions being heard together.
I would observe that the listing of CIV 4983 of 2022 and CIV 1954 of 2020 is likely to result in overall savings of trial time and legal costs for the respective parties as well as a quicker resolution of all the action.
The submission put by defendants' counsel is that the naming of the first, second and third defendants in CIV 4983 of 2022 is an abuse of process as the plaintiff should have discontinued CIV 1954 of 2020 action against the fourth defendant whereupon the fourth defendant would be entitled to costs. There is no significant unfairness or prejudice to the defendants arising from the actions being heard together.
Further, in circumstances where the actions have not been consolidated, but rather, are to be heard together, it is open to the defendants to progress pleadings and other procedural matters in respect of either action in any event.
Conclusion
Having had regard to all of the matters referred to above, including the evidence put before this court and the parties' respective submissions, I am of the view that the plaintiff has sufficiently demonstrated that CIV 4983 of 2022 and CIV 1954 of 2020 should be heard together. Doing so will be convenient, efficient and promote the just determination of the litigation in both actions.
It is appropriate that the first in time of the actions being CIV 1954 of 2020 be designated as the lead action, to the extent a lead action is required. As the matters are not being formally consolidated, it will remain necessary for the parties to file documents in each of the actions in the usual manner.
The actions will therefore continue to be managed together.
Orders
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.
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.
AC
Court Officer
20 APRIL 2023
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