Consolidating related proceedings in the Federal Court

In civil litigation it is surprisingly common for the parties to have more than one matter before the Court with overlapping fact matrices.  Rule 30.11 of the Federal Court Rules 2011 (Cth) (Rules) provides a mechanism by which the Federal Court, at the request of one or more of the parties to separate proceedings, can consolidate two or more separate but related proceedings.

Rule 30.11 also provides the Court and relevant parties with flexibility where proceedings are related but a consolidation is not be appropriate by allowing the Court to order separate proceedings to be heard together or consecutively as an alternative.

While opportunities to take advantage of this rule may not arise often, when they do, practitioners should strongly consider whether an order under Rule 30.11 (Order) should be sought as the potential for savings in time and legal costs may be significant.

How to obtain an order under Rule 30.11

When it becomes apparent that an Order may be appropriate, the first step should be to raise it with the other parties to the related proceedings to obtain their view on the matter.

The potential for time and costs savings may cause the parties to related proceedings to form the view that a consolidation is appropriate and that they should co-operate with any application for an Order.  In such a case any party can file an application for the Order and, with the application, it would be appropriate to file proposed consent orders agreed to by all the parties consenting to the application.  Where necessary it may be appropriate for affidavits to be filed providing further explanation why an Order is appropriate in the circumstances.

Where agreement cannot be reached that an Order should be made, the party that seeks an Order should make the application and from there the process follows any normal application.

Factors considered by the Court in making an order to combine proceedings

When determining whether an Order under Rule 30.11 is appropriate in the circumstances the Court will have regard to a number of factors including the following nine factors identified by His Honour Justice Besanko in Humphries v Newport Quays Stage 2A Pty Ltd [2009] FCA 699 (Humphries):

  • are the proceedings broadly of a similar nature?
  • are there issues of fact and law common to each proceeding?
  • will witnesses (lay and expert) in one proceeding be witnesses in one or more of the other proceedings?
  • has there been an alternative proposal put forward that there be a test case and have the parties agreed to abide the outcome, or, at least, the determination of common issues of fact and law?
  • is there a prospect of multiple appeals with substantial delays if the proceedings are not tried at the same time?
  • will there be a substantial saving of time if the proceedings are tried at the same time, compared with each proceeding being tried separately?
  • will an order that the proceedings be tried at the same time create difficulties in terms of trial management, complexity of procedural issues and difficulties in determining cross-admissibility of evidence?
  • is one proceeding further advanced in terms of preparation for trial than the others?
  • are there parties to one or some only of the proceedings who will be inconvenienced if all of the proceedings are tried at the same time?

The rule His Honour is referring to in Humphries, Federal Court Rule O 29 r 5, is a precursor of the current Rule 30.11 and from the former Federal Court Rules however, the factors have since been referred to with approval with respect to Rule 30.11 including by His Honour Justice Greenwood in Walsh, Liquidator of D&R Community Services Pty Ltd (Receivers & Managers Appointed) (In Liq) v Commissioner of Taxation [2018] FCA 1739.

Links and further references

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Legislation

Federal Court Rules 2011 (Cth)

Cases

Humphries v Newport Quays Stage 2A Pty Ltd [2009] FCA 699

Walsh, Liquidator of D&R Community Services Pty Ltd (Receivers & Managers Appointed) (In Liq) v Commissioner of Taxation [2018] FCA 1739

Further information

If you need advice about management of multiple proceedings in the Federal Court, please contact us for a confidential and obligation free and discussion:

Malcolm Burrows B.Bus.,MBA.,LL.B.,LL.M.,MQLS.
Legal Practice Director
Telephone: (07) 3221 0013
Mobile: 0419 726 535
e: mburrows@dundaslawyers.com.au

 

Disclaimer

This article contains general commentary only.   You should not rely on the commentary as legal advice.   Specific legal advice should be obtained to ascertain how the law applies to your particular circumstances.

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