Civil Trials Bench Book — Procedure generally

Where several proceedings are pending in the Supreme Court, District Court or General Division of the Local Court, or the Dust Diseases Tribunal, and it appears that:

the court may order:

Note:

The rule does not apply to the Small Claims Division of the Local Court.

The development of the law and the current practice relating to consolidation and related matters were extensively considered by Austin J in A Goninan & Co Ltd v Atlas Steels (Australia) Pty Ltd [2003] NSWSC 956 in which his Honour made an order consolidating five separate proceedings involving seven different parties into one proceeding, where all the proceedings raised the common issue of whether the steel supplied and used in the manufacture of certain coal wagons was defective. The value of the order was that the five proceedings became one single proceeding, with one of the parties as plaintiff and two of the others as defendants, while each of the original parties was able to pursue their claims against the others by way of cross-claim, resulting in only one set of pleadings of lesser volume, avoiding repetition and potentially making it easier to identify the real issues, simplifying discovery and subpoenas, and reducing the complexity of the trial.

The power to order consolidation or joint hearings is discretionary and will not be exercised if a party can show a real possibility of prejudice. For example, a joint hearing was refused because it was held not to be in the interests of justice in Skinner v Shine Pty Ltd [2019] NSWSC 1709, where Adamson J stated: “This court ought not permit a situation where defendants will be, in effect, held hostage in proceedings in a substantial part of which they have little or no interest, merely because it might be more convenient for the plaintiff to have them assembled for the purposes of increasing the prospects of settlement”: at [22].

An order can be made on terms, and such terms should, so far as appropriate in the particular case, identify the proceedings into which the others are to be consolidated, designate who is to be the plaintiff(s) and defendant(s), give directions as to pleadings and other matters, and, where appropriate, make special orders to preserve any party’s rights under the Limitation Act 1969.

Note that if the effect of the order for consolidation is the joinder of a number of parties as plaintiffs, they must all act by the one solicitor, in accordance with the general rule that plaintiffs must always be represented by the same solicitor: Herbert v Badgery (1893) 14 LR (NSW) Eq 321; Lewis v Daily Telegraph Ltd (No 2) [1964] 2 QB 601.

A more common order is that two or more proceedings be heard together and the evidence in one is to be evidence in the other(s). In such a case, the parties and the pleadings remain as they were subject to any subsequent amendments, but there is only one hearing. Such an order is appropriate where the proceedings are less complex, even though they may involve common questions of law or fact such as where a number of persons sue in different proceedings for personal injuries arising out of the same accident, and there is a common issue as to the negligence of the defendant or defendants.

For example, in ABC v AI [2023] NSWSC 825 an order was made that two proceedings be heard together pursuant to r 28.5 in the interests of justice. Determinative factors included that the witnesses in the cases would be the same; there was significant factual cross-over between the cases; it would not be possible to hear and determine any assessment of damages separately in each of the cases; and, unless the cases could be heard together, there was a risk that two separate judges may arrive at inconsistent judgments: at [8]–[9].

Similarly, a number of separate claims under the Succession Act 2006, Ch 3, where the different plaintiffs may be in effect competing against each other, are appropriate for orders that they be heard together.

The cases to be consolidated or heard together must all be in the one court; and, in the Supreme Court, in the one division. It may therefore be necessary to first move proceedings into a different court or division, so that appropriate orders can then be made.

Legislation

Rules