Case: Radstock Co-Operative &amp; Industrial Society v Norton-Radstock Urban District Council [1968] Ch 605 , [1968] 2 All ER 59, [1968] 2 WLR 1214
Outcome: cited
I do not think that O 29 r 2 of the Federal Court Rules is directed to or contemplates the making of an order for the trial of a separate question in the terms of the order made in the present case. In substance, the proceedings below, as originally constituted, comprised at least 48 separate cases (and perhaps more, having regard to the fact that there were multiple respondents originally in the proceedings below) rolled up into the one Statement of Claim. I make no comment at the moment as to whether this approach to the litigation of multiple but separate claims is permissible. However, I wish to make clear that nothing in these reasons should be taken as approval of such an approach. Order 29 r 2 of the Federal Court Rules is not directed to hiving off one case from one or more other cases but rather is directed to the expeditious determination of separate questions or issues which can be appropriately identified within the one case. It is simply not apt to be deployed to decide the whole of three or five separate cases before and separately from another 43 or so cases. This view of O 29 r 2 is supported by the reasoning of the English Court of Appeal in Radstock Co-Operative &amp; Industrial Society v Norton-Radstock Urban District Council [1968] Ch 605 , [1968] 2 All ER 59, [1968] 2 WLR 1214. For these reasons, I think that the only basis upon which any part of the reasons delivered by the primary judge on 1 May 2009 could conceivably be held to bind the remaining applicants in some way is if the agreement alleged to have been made amongst the parties early in the life of the proceedings below adequately and effectively operates to render part or all of those reasons binding upon the parties in all of the cases of the remaining applicants or if the parties make an agreement to similar effect in the future. It is impossible for me at the moment to express any sensible views as to the effect of this alleged agreement. It is true that there are indications in the materials tendered before me to the effect that the parties to the proceedings below do regard themselves as being obliged to some extent to translate or extend in some way the ultimate findings of the Court in the three cases with which his Honour has already dealt into the cases of the remaining applicants. However, it is highly undesirable that I should express any views at all as to the effect of the so-called agreement, especially when the evidence before me as to the making of the agreement was scant to say the least and when the existence and the effect of this alleged agreement were not matters which were litigated before me in the present application. The primary judge has not made any orders which give effect to this alleged agreement or which extend the operation of any part of the reasons delivered by him on 1 May 2009 or the findings made by him to any of the cases of the remaining applicants. There can be no doubt that the cases of Mr Owers, Ms Tan-Bounkeua and of each of the remaining applicants are separate cases and have not been brought in the one proceeding in order to agitate some joint right or entitlement. It has not been submitted to me that the joinder of the remaining applicants is necessary in order to activate whatever agreement has been reached amongst the parties concerning some extended operation of his Honour's reasons and findings or that the joinder of those parties is a condition either to the making of that agreement or to its performance. For these reasons, I do not think there is any justification or proper basis for adding the remaining applicants as parties to Austcorp's foreshadowed appeal. The joinder of the parties would not, of itself, have the effect claimed by Counsel for Mr Owers and Ms Tan-Bounkeua. The only live cases which have been finally determined by his Honour are the cases brought by Mr Owers and Ms Tan-Bounkeua. The cases of the remaining applicants have not yet been heard nor have they been determined. It is for Austcorp, the present respondents and the remaining applicants to determine what steps any one or more of them may wish to take in an endeavour to extend his Honour's reasons and findings or, indeed, the reasons and findings of the Full Court in due course, in the cases which his Honour has decided and finalised by judgments, to the cases of the remaining applicants. Whether this can sensibly or properly be done at all is a matter which I leave open. No reliance was placed by Counsel for Mr Owers and Ms Tan-Bounkeua on O 52 r 14 of the Federal Court Rules . It may be thought that, by reason of the agreement alleged to have been made amongst the parties, the remaining applicants have a sufficient interest in the appeal or are affected by the relief sought in the foreshadowed Notice of Appeal. However, the existence, operation and effect of that alleged agreement has not been litigated before the primary judge. It seems to me that there may well be significant difficulties in deciding what impact or effect (if any) that alleged agreement has on the cases of the remaining applicants in light of his Honour's reasons and findings and in light of the reasons and findings of the Full Court in the event that an appeal is filed and ultimately determined by the Full Court. The obvious general interest which the remaining applicants have in the progress of the so-called "test cases" is not sufficient to engage O 52 r 14 of the Federal Court Rules . His Honour's reasons and the orders which his Honour has made in order to give effect to those reasons finally determine each of the three cases with which his Honour dealt (save for costs). Only two of them remain as live cases since the Lucianis have settled their case.