Oliver Hume South East Queensland Pty Ltd v Barclay

Oliver Hume South East Queensland Pty Ltd initiated proceedings against Barclay in the Federal Court of Australia, seeking both consolidation of two separate proceedings and leave to re-open a cross-claim in the consolidated proceedings. The proceedings in question were QUD 231 of 2011, which had been substantially determined, and QUD 438 of 2018, which was at the case management stage. Oliver Hume argued that consolidation would be convenient and would avoid multiplicity of actions, save time and expense, and would not prejudice the respondents. In contrast, the respondents argued that consolidation would not be appropriate, as it would result in prejudice to them and would not lead to a significant saving of time and expense.

The court considered the principles of consolidation, including the desirability of avoiding inconsistent findings of fact and the objective of allowing all aspects of a matter or controversy before the Court to be resolved. The court also considered the principles of Anshun estoppel and abuse of process, and whether certain claims could have been made in related earlier proceedings. The court concluded that consolidation was not appropriate in this case, as the proceedings had advanced beyond a stage where it would be appropriate for them to be consolidated, and the pleadings in QUD 438 of 2018 were not yet finalised. The court also found that Oliver Hume had provided no satisfactory explanation as to the reasons for its conduct of the two sets of proceedings in parallel, why it did not apply to the Federal Court to re-open the cross-claim before now, or why it commenced QUD 438 of 2018 in the Supreme Court rather than in the Federal Court.

The court also considered the application to strike out certain pleadings in QUD 438 of 2018. The court found that certain paragraphs of the Second Further Amended Statement of Claim in QUD 438 of 2018 should be struck out as an abuse of process, as they concerned the same factual issues as those in dispute in QUD 231 of 2011, and ought reasonably to have been made or raised for determination in QUD 231 of 2011.

The court dismissed the application for consolidation and leave to re-open the cross-claim, and ordered that certain paragraphs of the Second Further Amended Statement of Claim in QUD 438 of 2018 be struck out. The court also ordered that the proceeding be dismissed as against the Third Respondent. The court further ordered that the parties provide draft case management orders in respect of costs in these proceedings, and that Oliver Hume file and serve a fresh Statement of Claim within 28 days of the date of the order. The court listed the proceedings for case management at 9.30 am on 13 August 2020.