Case: Dean-Willcocks v Air Transit International Pty Ltd [2002] NSWSC 525 ; (2002) 55 NSWLR 64
Outcome: cited
to a defendant seeking a separate trial, including the possibility of unfairness, must be weighed against identified advantages to ASIC and to the defendants as a whole and the efficient use of the court's resources having regard to the commonality of issues raised by each claim: Dean-Willcocks v Air Transit International Pty Ltd [2002] NSWSC 525 ; (2002) 55 NSWLR 64 at [34] . The court should be concerned to determine what is the most efficient use of the resources of the parties and also of the court: Carter v Commissioner of Taxation [2001] FCA 575 ; (2001) 109 FCR 215 at [23] . ASIC submits that the following factors are also relevant: (a) the state of progression of the proceeding: Knight v Beyond Properties Pty Ltd (No 2) at [25]. (b) the degree to which cost and delay will be minimised by a single trial or by separate trials: Bishop v Bridgelands Securities Ltd at 314; (c) the efficient use of the resources of the parties and the court: Carter v Commissioner of Taxation at [23]; Dean-Willcocks v Air Transit International Pty Ltd at [34]; (d) that it is preferable from a public policy perspective to avoid a multiplicity of hearings: Main-Road Property Group Pty Ltd v Pelligra &amp; Sons Pty Ltd [2007] VSC 43 at [21] ; (e) any relevant public interest in the proceeding: Dean-Willcocks v Air Transit International Pty Ltd at [35]; and (f) the degree of similarity in the transactions alleged in the proceedings this may be a more weighty consideration than the somewhat technical point that the transactions do not form a series: Australian Securities &amp; Investment Commission v Somerville [2008] NSWSC 788 at [42] . SATTVIC'S SUBMISSIONS Limited and unique issues ASIC then submits that when the proceeding reaches the stage that an informed assessment can be made of whether any defendants would be prejudiced by a joint trial, other measures may be sufficient to avoid that prejudice. For example, ASIC says it has become commonplace in large and complex proceedings for trials to be staged in such a manner as to make it unnecessary for all parties to attend at all stages of the trial: Australian Securities &amp; Investment Commission v Somerville [2008] NSWSC 788 at [48] [50], [57]; Dean-Willcocks v Air Transit International Pty Ltd at [70]; Main-Road Property Group Pty Ltd v Pelligra &amp; Sons Pty Ltd at [25]; Jendas Pty Ltd v Jolly [1997] 2 VR 106 at 107. In Australian Securities &amp; Investment Commission v Somerville , Austin J observed that ASIC could, with the Court's encouragement, conduct its case in such a way that the days upon which the eighth defendant in that matter would need to be represented in court would be limited. Cost, delay and the efficient use of the resources of the parties and the Court ASIC submits that it is in the public interest for a regulatory authority such as ASIC to be able to seek public relief in the most expeditious and cost effective way possible: by analogy, Dean-Willcocks v Air Transit International Pty Ltd at 74, where Austin J considered the public interest in a liquidator being able to recover unfair preferences expeditiously to be relevant. As I have said, I am not persuaded that a joint trial involving Sattvic is necessarily the most expeditious and cost effective way of disposing of this litigation. In any event, any possible public interest must be balanced against the legitimate private interests of Sattvic. Common Questions and Similar Issues ASIC submits that there are similarities between the way the share application form was used in the course of three of the offers alleged against Sattvic (at paras 212A to 212O of the plaintiff's amended statement of claim) and the way those forms were used in respect of certain offers alleged to have been made by other defendants (at paras 84-89, 160-164, 173-177 and 184-194 of the statement of claim). It then submits, without specificity, that much of the evidence and submissions on these issues are likely to be the same or substantially similar in respect of all defendants. I have considered the pleadings. In the end, as I have identified above, the issues for trial between ASIC and Sattvic are very limited. There is little or no dispute about factual matters which are substantially similar in the actions against the other defendants. In addition, ASIC submits that common questions of statutory interpretation affecting important provisions of the Corporations Act 2001 (Cth) are likely to arise in respect of all defendants, in particular s 707(3) and (4). It says that the purpose test in s 707(4) is relied on against all defendants and there will be common questions concerning the application of that test affecting all defendants. However, there is no live issue as to this between Sattvic and ASIC as the contentions of ASIC in this respect are admitted. Accordingly, no question of inconsistent judgments on this question arises.