Wingecarribee Shire Council v Lehman Brothers Australia Limited (No 3) [2010] FCA 747

FEDERAL COURT OF AUSTRALIA

Wingecarribee Shire Council v Lehman Brothers Australia Limited (No 3) [2010] FCA 747 Citation: Wingecarribee Shire Council v Lehman Brothers Australia Limited (No 3) [2010] FCA 747

Parties: WINGECARRIBEE SHIRE COUNCIL, CITY OF SWAN COUNCIL and PARKES SHIRE COUNCIL v LEHMAN BROTHERS AUSTRALIA LIMITED (IN LIQUIDATION) (ACN 066 797 760)

File number: NSD 2492 of 2007

Judges: RARES J

Date of judgment: 9 July 2010

Date of hearing: 9 July 2010

Place: Sydney

Division: GENERAL DIVISION

Category: No catchwords

Number of paragraphs: 11

Counsel for the Applicants: NC Hutley SC and L Richards

Solicitor for the Applicants: Piper Alderman

Counsel for the Respondent: J Sheahan SC and S Nixon

Solicitor for the Respondent: Blake Dawson

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION NSD 2492 of 2007

BETWEEN: WINGECARRIBEE SHIRE COUNCIL

First Applicant

CITY OF SWAN COUNCIL

Second Applicant

PARKES SHIRE COUNCIL

Third Applicant

AND: LEHMAN BROTHERS AUSTRALIA LIMITED (IN LIQUIDATION) (ACN 066 797 760)

Respondent

JUDGE: RARES J

DATE OF ORDER: 9 JULY 2010

WHERE MADE: SYDNEY

THE COURT ORDERS THAT:

1. In relation to the Applicants' notice of motion dated 22 June 2010: 1.1 City of Swan Council and Parkes Shire Council be joined as the second and third applicants to the proceedings respectively. 1.2 The applicants have leave pursuant to Order 13 rule 2 of the Federal Court Rules (Cth), to: (a) amend the Further Amended Application dated 29 August 2008 by filing and serving a Second Further Amended Application in the form as included in the Exhibit at pages 143 to 151 to the Affidavit of Amanda Kim Banton sworn 1 July 2010; (b) amend the Further Amended Statement of Claim dated 29 August 2008 by filing and serving a Second Further Amended Statement of Claim in the form as included in the Exhibit at pages 82 to 138 of the Affidavit of Amanda Kim Banton sworn 1 July 2010. 1.3 The applicants pay the respondents' costs thrown away (if any) by reason of the amendments referred to in 1.2 hereof. 1.4 The applicants have leave pursuant to section 471B of the Corporations Act 2001 (Cth) to proceed with, and to the extent necessary, to begin the proceedings. 1.5 Any argument regarding the costs of the respondent's notice of motion dated 29 October 2009 be reserved. 1.6 The costs in respect of the applicants' notice of motion dated 22 June 2010 be costs in the cause (including the cost of the adjournment on 2 July 2010). 2. In relation to the further conduct of the proceedings: 2.1 The proceedings shall, subject to any further order of the court, be conducted as proceedings to which Part IVA of the Federal Court Act of Australia 1976 (FCA Act) applies. 2.2 Pursuant to s 33Q of the FCA Act: (a) the following sub-groups are established and the parties named below are appointed as the respective sub-group representatives of those sub-groups and their members; (i) the Wingecarribee Shire Council sub-group, for whom the sub-group representative is the First Applicant; (ii) the City of Swan Council sub-group, for whom the sub-group representative is the Second Applicant; and (iii) the Parkes Shire sub-group for whom the sub-group representative is the Third Applicant; (b) within the common questions of law and fact set out in paragraph 63 of the Second Further Amended Statement of Claim: (i) the questions set out in paragraphs 63.7 and 63.8 will be sub-group common issues for determination in relation to the claims of the Wingecarribee Shire Council sub-group; (ii) the questions set out in paragraphs 63.9 and 63.10 will be sub-group common issues for determination in relation to the claims of the City of Swan Council sub-group; (iii) the questions set out in paragraphs 63.11 and 63.12 will be sub- group common issues for determination in relation to the claims of the Parkes Shire Council sub-group. 2.3 The proceedings are referred to a person agreed between the parties for mediation pursuant to s 53A of the Federal Court of Australia Act 1976 (Cth) and Order 72 of the Federal Court Rules, provided that if the parties are unable to agree on such a person on or before 5 August 2010 the matter is listed for directions on 6 August 2010. 2.4 The court directs as follows: (a) on or before 5 July 2010, the Respondent shall request any further and better particulars of the Second Further Amended Statement of Claim; (b) on or before 16 July 2010, the Applicants shall serve their responses to the Respondent's request for further and better particulars; (c) on or before 28 July 2010, the Respondent shall file and serve its Defence to the Second Further Amended Statement of Claim; (d) on or before 29 July 2010 the parties are to exchange their lists, describing the documents or categories of documents that they seek by way of discovery from the other party; (e) on or before 30 July 2010 the solicitors for the Applicants and the Respondent shall confer and seek to finalise agreement on the documents or categories for discovery, a timetable for production of discovery by tranches and, so far as possible, the questions on which expert evidence will be sought; (f) on or before 2 August 2010 the Applicants shall provide discovery of documents of the First Applicant: (i) on which it relies; (ii) that adversely affect its own case; (iii) that adversely affect the Respondent's case; (iv) that support the Respondent's case; and (v) to the extent possible, documents agreed in (e) above; (g) on or before 30 August 2010, the parties are to exchange the final tranche of discovery as agreed by the parties in (e) above or as otherwise ordered by the court; (h) on or before 1 October 2010, the parties shall exchange outlines of the evidence of any lay witnesses they propose to call in chief, provided that such outlines are not to be used in cross-examination without leave of the Court; (i) on or before 15 October 2010, the parties shall exchange their expert evidence in chief; (j) on or before 22 October 2010, the parties shall exchange outlines of the evidence of any lay witnesses they propose to call in reply, provided that such outlines are not to be used in cross-examination without leave of the Court; (k) on or before 29 October 2010, the experts instructed by the parties shall meet and confer without lawyers in relation to their respective reports for the purpose of preparing a joint report identifying common ground on expert issues, the issues on which the experts' views are in dispute and a summary of the key points of difference. (l) on or before 9 November 2010 the experts shall provide the parties with their joint report; (m) on or before 23 November 2010, the parties shall serve any expert evidence in reply, which shall be limited to those matters of expert evidence that are in dispute; (n) on or before 7 December 2010 the parties shall exchange position papers for mediation; and (o) the mediation shall commence on 13 December 2010. It is to be completed on or before 16 December 2010, or such other date as is agreed by the parties. 3. The proceedings are listed for further directions on 6 August 2010 and 17 December 2010. 4. The parties have leave to issue subpoenas. 5. The notice of motion filed by the respondent on 29 October 2009 be dismissed. 6. Liberty to apply for further orders and directions on 3 days' notice to the Associate to Rares J. THE COURT NOTES THAT: 7. Without admission by the respondent and reserving all of its rights including to apply to set aside the notice to produce filed by the applicants on 5 July 2010 if it is called upon the Court notes that the applicants have not called on their notice to produce filed and served on 5 July 2010. However, the applicants' reserve their position as to the need for production of the documents sought in the notice to produce for the purposes of preparing for and attending mediation (as provided for by these orders) and to give effect to any settlement agreement reached between the parties as a result of the mediation. Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. The text of entered orders can be located using Federal Law Search on the Court's website.