Newman v Hold Pty Ltd - [2001] VSC 282

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL AND EQUITY DIVISION

No. 2066 of 2000

NEWMAN & ORS	Plaintiffs
v
HOLD PTY LTD & ORS	Defendants

---

JUDGE:	Mandie J
WHERE HELD:	Melbourne
DATE OF HEARING:	9 August 2001
DATE OF JUDGMENT:	17 August 2001
CASE MAY BE CITED AS:	Newman & Ors v Hold Pty Ltd & Ors
MEDIUM NEUTRAL CITATION:	[2001] VSC 282

---

PRACTICE AND PROCEDURE – O.9.02(b) RSC – whether leave should be granted to join numerous plaintiffs and five defendants – investments in 19 separate investment schemes over some years – many claims and many similar but separate causes of action.

---

APPEARANCES:

Counsel

Solicitors

For the Plaintiff

Mr J Burnside QC
with Mr B Quinn

Corrs Chambers Westgarth

For the first and second Defendants

For the third Defendant

For the fourth Defendant

For the fifth Defendant

Mr P Collinson

Mr M Sifris

Mr M K Moshinsky

Mr C Jose

Brand Partners

G S Ray

Aitken Walker & Strachan

McCarthy & Associates

HIS HONOUR:

In this proceeding there are 193 plaintiffs and five defendants. The plaintiffs appeal from orders of the Master, made 6 July 2001 but incorrectly dated 26 June 2001, striking out the statement of claim and dismissing ”the proceeding against the defendants except the defendants to Firstnamed plaintiff’s claims” and giving the firstnamed plaintiff leave to file an amended statement of claim. These orders were made on the plaintiffs' applications but the appeal is also brought against orders made on the same date on summonses filed by some of the defendants (which orders are likewise incorrectly dated).

The appeal is in substance a re-hearing de novo of two summonses filed by the plaintiffs. The first summons, filed 3 May 2001, seeks an order that pursuant to Rule 9.02(b) leave be granted ”that the fifth defendant remain joined as a fifth defendant” in the proceeding. The second summons, filed 12 June 2001, seeks the same order in relation to the first, second, third and fourth defendants. Before the Master the plaintiffs also relied upon Rule 9.02(a) but on appeal the argument was confined to Rule 9.02(b), which provides that two or more persons may be joined as plaintiffs or defendants in any proceeding where the court, before or after the joinder, gives leave to do so.

In Glenwood Management Group Pty Ltd v Mayo (1990) BC9000705, an unreported decision of Young CJ sitting in the Practice Court, his Honour said:

“In the existing proceedings and in the intended proceedings, that is to say the proceedings intended by way of amendment, there would be no common question of law or fact arising, nor would the existing proceedings and the contemplated proceedings arise out of the same transaction or series of transactions. Accordingly there could be no joinder pursuant to para (a) of the Rule. However, para (b) gives the Court a discretion to grant leave. It is a relatively new Rule not, so far as I am aware, the subject 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 Newman v Hold Pty Ltd 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: [2001] VSC 282
Decision Date: 17 August 2001

CaseChat Overview and Summary

Newman and others sought to join numerous plaintiffs and five defendants in their claims for compensation arising from investments in 19 separate investment schemes over several years. The court had to decide whether leave should be granted under Order 9, Rule 2(b) of the Rules of the Supreme Court to join the plaintiffs and defendants in light of the numerous claims and the many similar but separate causes of action. The defendants opposed the application on the grounds of the complexity of the proceedings and the potential for confusion and delay.

The court considered the nature of the claims and the proposed joinder of plaintiffs and defendants, noting the potential for significant complexity and the need for careful management of the proceedings. It examined the criteria for granting leave to join under Order 9, Rule 2(b), including the commonality of issues, the efficiency of the proceedings, and the potential for prejudice to the defendants. The court also took into account the defendants' opposition and the potential for confusion and delay in the proceedings.

After considering the evidence and submissions, the court decided that the proposed joinder of plaintiffs and defendants was not in the interests of justice, given the complexity of the claims and the potential for confusion and delay. The court found that the defendants were likely to be prejudiced by the joinder and that the proceedings would not be managed efficiently. Accordingly, the court refused leave to join the plaintiffs and defendants.

Orders