Oliver Hume South East Queensland Pty Ltd v Barclay [2020] FCA 857

FEDERAL COURT OF AUSTRALIA

Oliver Hume South East Queensland Pty Ltd v Barclay [2020] FCA 857 File number(s): QUD 438 of 2018

Judge(s): COLLIER J

Date of judgment: 17 June 2020

Catchwords: PRACTICE AND PROCEDURE – application under r 30.11 of the Federal Court Rules 2011 (Cth) for consolidation of proceedings – principles of consolidation – where proceedings are at different stages – where one proceeding has been substantially determined and the other is at case management stage – whether consolidation would be convenient – whether consolidation would avoid multiplicity of actions – whether consolidation would save time and expense – whether the respondents would be prejudiced by consolidation of the proceedings – distinction between matters being tried together and consolidation of matters PRACTICE AND PROCEDURE – application under r 16.21 of the Federal Court Rules 2011 (Cth) to strike out pleadings – principles of Anshun estoppel and abuse of process – s 37M of the Federal Court of Australia Act 1976 (Cth) – where concession that cause of action estoppel applies to certain paragraphs of the second further amended statement of claim – whether claims could have been made in related earlier proceedings – forensic choices in earlier litigation – role of insurer in assuming conduct of litigation in earlier proceedings – whether all issues in dispute between parties ought be decided in single proceeding

Legislation: Federal Court Rules 2011 (Cth) rr 16.02, 16.21, 30.11 Federal Court of Australia Act 1976 (Cth) s 37M Corporations Act 2001 (Cth) s 1317H(2) Jurisdiction of the Courts (Cross-Vesting) Act 1987 (Qld) s 5

Cases cited: Aristocrat Technologies Australia Pty Limited v Global Gaming Supplies Pty Limited [2007] FCA 943 ASIC v Lindberg (No 2) (2010) 26 VR 355 Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; [1996] HCA 25 Buses + 4WD Hire Pty Limited v Oz Snow Adventures Pty Limited [2016] NSWSC 1017 Caason Investments Pty Ltd v Cao (2015) 236 FCR 322; [2015] FCAFC 94 Caason Investments Pty Ltd v Cao [2014] FCA 1410 Cameron v McBain [1948] VLR 245 Gold Coast City Council v Pioneer Concrete (Qld) Pty Ltd (1998) 157 ALR 135 Humphries v Newport Quays Stage 2A Pty Ltd [2009] FCA 699 Investa Properties Pty Ltd v Nankervis (No 7) [2015] FCA 1004 Investa Properties Pty Ltd v Nankervis (No 8) [2018] FCA 443 Investa Properties Pty Ltd v Nankervis (No 9) [2018] FCA 793 Martech International Pty Ltd v Energy World Corporation Ltd [2004] FCA 1470 Oliver Hume South East Queensland Pty Ltd v Investa Residential Group Pty Ltd [2017] FCAFC 141 Re AWB Ltd; Australian Securities and Investments Commission v Lindberg (No 10) (2009) 76 ACSR 181; [2009] VSC 566 Re Ling; Ex parte Ling v Commonwealth of Australia (1995) 58 FCR 129; [1995] FCA 1410 Sheahan, in the matter of Atsikbasis Nominees Pty Ltd (in Liquidation) (No 2) [2013] FCA 724 Timbercorp Finance Pty Ltd (in liquidation) v Collins (2016) 259 CLR 212; [2016] HCA 44 Tomlinson v Ramsey Food Processing Pty Ltd (2015) 256 CLR 507; [2015] HCA 28 Varasdi as Litigation Representative for Mimi Varasdi v State of Victoria (Department of Education and Training) [2019] FCA 1785 Walsh, Liquidator of D.R. Community Services Pty Ltd (Receivers and Managers Appointed) (In Liq) Commissioner of Taxation [2018] FCA 1739