Ryan, Grant v Great Lakes Council

[1997] FCA 1346

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG183 of 1997

BETWEEN:

GRANT RYAN
Applicant

AND:

GREAT LAKES COUNCIL
First Respondent

GRAHAM BARCLAY OYSTERS PTY LTD
Second  Respondent

CLIFT OYSTERS PTY LTD
Third respondent

M S VERDICH & SONS PTY LTD
Fourth Respondent

CHEVY BAY PTY LTD
Fifth Respondent

JARPAY PTY LTD
Sixth Respondent

C & L COOMBES PTY LTD
Seventh Respondent

M W & E A SCIACCA PTY LTD
Eight Respondent

TADEVEN PTY LTD
Ninth Respondent

R A KING (WHOLESALE) PTY LTD
Eleventh Respondent

MANETTAS LIMITED
Thirteenth Respondent

AND

AUSSIE OYSTER DISTRIBUTORS PTY LTD
Fourteenth Respondent

JUDGE:	WILCOX J
DATE:	8 OCTOBER 1997
PLACE:	SYDNEY

EXTEMPORE REASONS FOR JUDGMENT

WILCOX J:   I think I should allow Mr Beach to take the course he envisages.  The question is:  what is the appropriate course in terms of the efficient and economical management of this litigation?  It seems that, whether or not I allow the currently envisaged amendments -which involve the joinder of seven additional applicants, perhaps that number will come back to six - or whether I refuse this application, the additional applicants will take proceedings under Part IVA of the Federal Court of Australia Act, on their own behalf and on behalf of group members, against the people named in the proposed Further Amended Statement of Claim.  The issue is whether there is one action on foot, with seven or perhaps eight applicants each of which makes claims against particular respondents, or whether I require there be seven or eight cases; and then list them together in directions hearings and organise matters so common issues are heard together.

I have listened to all considerations put by counsel for the respondents who oppose Mr Beach's application.  However, I am unpersuaded there is any reason of efficiency or hardship for breaking the litigation into seven or eight different proceedings rather than one.  I think the only consequence of this course would be a proliferation of paper and legal costs.  Already some cross-claims have been filed.   It is predictable there will be more.   If I acceded to the submissions of counsel for the respondents, I would be causing parties to cross-claim in several separate actions.   The cross-respondents would become involved in several separate actions.  This would complicate the litigation, rather than the reverse.

Moreover, if a document had to be filed that related to the claims of more than one group of claimants, there would be a multiplication of filing fees.  If there was a hearing to investigate issues common to the various claims, as seems certain to some extent, there would be a multiplication of hearing fees.  Some party has to pay those costs.  It may be the applicants or some of them, if the claims fail:  if the claims succeed, the burden will probably be passed on to one or more respondents.  The only certainty is that, to the extent I allow court fees to multiply, one or more of the parties will be financially disadvantaged.

I have searched carefully to find any countervailing factor that ought to be taken into account; I see none.  The key to handling these cases satisfactorily is to concentrate on issues rather than parties.  For example, if it turns out that respondents sued under the Trade Practices Act seek indemnity against any such liability from the council (the first respondent) or the State of New South Wales (the nineteenth respondent), those respondents may wish to be involved in the Trade Practices Act claim, even though it is not made against them by the applicant.

As I say, already some cross-claims have been filed.  I think there will be more.  I do not, at this stage, wish to predict a particular course of management; but it should be possible, by appropriate directions, to ensure that issues are isolated, so only those parties who are concerned with that issue need be represented at that time.  They may choose to stay away or they may choose to consolidate their representation and so minimise costs.  That is a matter for them to determine.

So far as power is concerned, reference has been made to Order 6, rule 2.  I think the course proposed by Mr Beach probably does not fall under rule 2(a); the rights asserted in the proceeding by the various applicants cannot properly be described as being "in respect of or arising out of the same transaction or series of transactions".

However, subrule (a) is supplemented by subrule (b).  This gives to the Court power to permit joinder even in a situation that does not fall within subrule (a).  I took that course in Bishop v Bridgelands Securities Limited (1990) 25 FCR 311 and I think it appropriate to take it in this proceeding.

All the proposed applicants are represented by a single firm of solicitors and the same counsel.  The respondents are separately represented, to a large extent, but that would be true whether there was one proceeding or eight proceedings.  It will be a matter for the respondents to decide whether to consolidate their representation.

The factual material exhibits a significant degree of commonality; consequently there are good practical reasons to grant leave.  I propose to do so. 

However, the draft Further Amended Statement of Claim proffered to the Court requires some revision.  Since this draft was prepared, the applicant has reached agreement with some respondents.  As a result, some of the respondents, against whom claims are made in the draft, have been dismissed from the proceeding.  It would be better for this to be tidied up before the document is filed.

The order I propose to make is as follows:

I grant leave to the applicant to amend the proceedings by filing an Amended Application and a Further Amended Statement of Claim substantially in accordance with the draft documents now before the Court, but revised so as to omit parties now dismissed from the proceeding and with lists of group members included in Schedules to the Further Amended Statement of Claim. 

I say that because it is important there be no room for dispute as to the identity of group members. 

What I require involves only tidying up documents.  When they are ready, the documents may be filed.  They should be served on all existing parties and the proposed additional parties.

It will be necessary, I think, for new opt-out notices to be given, reflecting the fact that the description of the groups has changed.  The groups are now limited to identified people.  Also the particular claims are limited by reference to the new groups.  The appropriate course will be for letters to be sent to the 175 identified people.  Those letters will have to be carefully drafted, so as to correctly convey to each recipient information as to the identity of the respondents against whom a claim is being made on behalf of that group member.

I direct that the solicitors for the applicants prepare and submit to my Associate appropriate draft letters.   I will settle their form in chambers and they can be sent out before any further hearing.   I will fix an opt-out period in respect of those notices of two months after the date of posting of the letters. 

I adjourn the applications for security for costs until a date to be fixed. 

[There was discussion on costs.]

I order that the applicant, Grant Ryan, pay the costs incurred by the 3rd to 13th respondents in connection with the hearing on 19 August 1997.

I certify that this and the preceding
three (3) pages are a true copy of the
Reasons for Judgment herein
of the Honourable Justice Wilcox

Associate:

Dated:  8 October 1997

Counsel for the Applicant:  J Beach

Solicitor for the Applicant:  Slater & Gordon

Counsel for the First Respondent:         T G R Parker

Solicitor for the First Respondent:        Norton Smith & Co

Counsel for the Second Respondent:     C R R Hoeben SC

Solicitor for the Second Respondent:     Dunhill Madden Butler

Counsel for the Third and Fourth
Respondents:  J E Marshall

Solicitor for the Third and Fourth
Respondents:  Phillips Fox

Counsel for the Fifth and Sixth
Respondents:  N Rein

Solicitor for the Fifth and Sixth
Respondents:  Colin Biggers & Paisley

Counsel for the Seventh and
Fourteenth Respondents:  A J Sullivan QC

Solicitor for the Seventh and
Fourteenth Respondents:  Holman Webb

Counsel for the Eighth and Ninth
Respondents:  D J Fagan

Solicitor for the Eighth and Ninth
Respondents:  Minter Ellison

Counsel for the Eleventh
Respondent:  I G Harrison SC

Solicitor for the Eleventh
Respondent:  Phillips Fox

Counsel for the Thirteenth
Respondent:  G M Gregg

Solicitor for the Thirteenth
Respondent:  Ebsworth & Ebsworth

Date of Hearing:  8 October 1997