ESANDA FINANCE CORPORATION LIMITED v CARNIE SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL GLEESON CJ, KIRBY P and MEAGHER JA 13 April 1995 [1995] NSWCA 142 Gleeson CJ. This matter has come before us today for the purpose of considering whether the court should order otherwise pursuant to the provisions of Pt 8 r 13 of the Supreme Court Rules in relation to a desire on the part of the plaintiffs to have the proceedings go forward as representative proceedings. When I say 'representative proceedings' that raises the question: representative of whom? The answer to that question appears to be that the parties do not know. It was said in an affidavit of Andrew George Wills of 7 April 1995 (and the evidence is uncontradicted) that some of the customers of Esanda, who are the subject of the representative order presently sought in the further amended statement of claim, are persons who commenced separate proceedings against Esanda in another jurisdiction, and who have settled those proceedings. Senior counsel for the plaintiffs has indicated that he does not have sufficient instructions at the moment to enable him to know exactly whathas occurred in that respect but obviously there is a large question as to whether, whatever might otherwise be decided in relation to this matter, the plaintiffs should be permitted to continue with the action as representatives of those persons. There are a number of questions that will need to be addressed in making a discretionary decision of the kind required at this stage by the provisions of Pt 8 r 13. Some of those have been mentioned in some of the judgments in the High Court. Others have been raised by the affidavit of Mr Wills to which I have just referred. It is said in that affidavit that Esanda would desire to propound cross-claims against the plaintiffs, and against a number of other people who fall into the class of persons the plaintiffs seek to represent in these proceedings. A reading of Mr Wills" affidavit suggests that there are still a large number of uncertainties about the nature and extent of those cross-claims, and there is also a question of the way in which r 13 provides for such a procedure. Furthermore, as a number of the members of the High Court indicated in their judgments, what might be described as the case management of a representative action would require decisions to be made by a judge or master concerned to oversee the progress of the litigation. Those decisions themselves, and the nature of the possible case management regime that might or might not be practicable, could well be bound up with the discretionary question as to whether the court should make an order under r 13. In all those circumstances it seems to me that the better course is for this court simply to remit the entire matter, including the question of whether the court should otherwise order pursuant to r 13, to the Equity Division. The material that is presently before us does not seem to me to be adequate to enable us to deal with all those questions properly. Furthermore since the question of whether the court should order otherwise in relation to the proposal that the proceedings go forward as representative actions is so closely bound up with the other considerations that I have mentioned, and 2 UNREPORTED JUDGMENTS because so far as I can see neither party is properly prepared for a final resolution of those questions before this court this afternoon, the costs of the proceedings before this court this afternoon should be left to be costs in the cause. I would propose that the matter should be remitted to the Equity Division for the purposes that I have mentioned and that the costs of the proceedings today should be costs in the action. Kirby P. I agree with the first orders of the Court which the Chief Justice has proposed. However, my own view is that the appellant should pay the costs of the proceedings before the Court today. These proceedings have a long history. The history is recorded in the opening passage in the reasons of the Chief Justice in the earlier proceedings in this Court. See Esanda Finance Corporation Limited v Carnie & Anor (1992) 29 NSWLR 382 (CA) at 384. The proceedings were removed into this Court by order of Young J in the Equity Division in order to permit this Court to deal with a matter of general principle. This Court dealt with that matter. An appeal was then brought by special leave to the High Court of Australia. See Esanda Finance Corporation Limited v Carnie & Anor (1995) 127 ALR 76 (HC). The matter is now back before us pursuant to the orders of the High Court of (ibid at 98). The High Court returned the matter to this Court, because the appeal to it came from our orders. However, the respondents have made it clear that they would always have consented to return all procedural matters to the Equity Division. This was signified upon the basis that it was clearly necessary and had been foreshadowed in the proceedings in this Court that there were outstanding procedural matters (see ibid 390-399). The matter ought, in my view, to have proceeded by consent orders to be returned to the Equity Division as we will now return them. If that had been done the proceedings in this Court today would have been unnecessary and we need not have been troubled. Parties should be encouraged to take that course, saving the time of the Court and the costs of the litigants. On that footing I would, as I say, agree to the first order that the matter should be remitted to the Equity Division. However, in my opinion the appellant should pay the costs of the respondents occasioned by the proceedings in this Court today. Meagher JA. I agree with the Chief Justice. Gleeson CJ. The orders of the court will be the matter is remitted to the Equity Division for the purpose earlier mentioned and the costs of the proceedings today will be costs in the action. Orders accordingly.