Fitzgerald as Administrator of the Estate of the Late Lesley Provan v Cooper; Fitzgerald as Administrator of the Estate of the Late Lesley Provan v The Valley Centre for Environmental Education & Research Incorporated [2020] NSWSC 451

Fitzgerald as Administrator of the Estate of the Late Lesley Provan v Cooper; Fitzgerald as Administrator of the Estate of the Late Lesley Provan v The Valley Centre for Environmental Education & Research Incorporated [2020] NSWSC 451

The Court dismissed the application because the two proceedings concerned different transactions, different properties and different factual issues; they did not involve common issues of fact and law in any meaningful sense. Although there were common witnesses, the plaintiff failed to identify material common evidence beyond limited exceptions, and had not shown that a joint hearing would save time or avoid inconsistent findings. Any convenience to the plaintiff did not justify imposing significant additional hearing time and cost on each defendant. The sequential hearing order was also refused because the proceedings did not need to be heard by the same judge and the proposal could...

Jurisdiction
Australia
Judgment Date
27 April 2020
Procedural Posture
Practice and Procedure Application Under Uniform Civil Procedure Rules 2005 (nsw), R 28.5 for Joint or Sequential Hearing Orders / Notice of Motion Filed on 3 February 2020 Heard on 16 April 2020
Outcome
The plaintiff's notice of motion filed on 3 February 2020 in proceeding 2018/88427 was dismissed.
Legal Topics
['joint Hearing Orders' 'sequential Hearing Orders' 'consolidation and Trial Management' 'common Issues of Fact and Law' 'common Witnesses' 'costs of Procedural Motion']
['civil Procedure' 'equity' 'succession'] ['joint Hearing Orders' 'sequential Hearing Orders' 'consolidation and Trial Management' 'common Issues of Fact and Law' 'common Witnesses' 'costs of Procedural Motion']

Case Brief

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Procedural Posture

Practice and Procedure Application Under Uniform Civil Procedure Rules 2005 (nsw), R 28.5 for Joint or Sequential Hearing Orders / Notice of Motion Filed on 3 February 2020 Heard on 16 April 2020

Legal Issues

  1. 1 ['Whether proceeding 2018/88427 and proceeding 2018/80831 should be heard together with evidence in one proceeding being evidence in the other under Uniform Civil Procedure Rules 2005 (NSW), r 28.5.' 'Alternatively, whether the Valley Centre proceeding should be heard first and immediately followed by the Cooper proceeding, with both matters heard by the same judge.' 'Whether the proceedings involved common questions, arose out of the same transaction or series of transactions, or whether some other reason made a r 28.5 order desirable.' 'Whether a joint or sequential hearing would save time and expense consistently with fairness, or instead impose additional cost, inconvenience or prejudice on the defendants.']

Ratio Decidendi

The Court dismissed the application because the two proceedings concerned different transactions, different properties and different factual issues; they did not involve common issues of fact and law in any meaningful sense. Although there were common witnesses, the plaintiff failed to identify material common evidence beyond limited exceptions, and had not shown that a joint hearing would save time or avoid inconsistent findings. Any convenience to the plaintiff did not justify imposing significant additional hearing time and cost on each defendant. The sequential hearing order was also refused because the proceedings did not need to be heard by the same judge and the proposal could...

Court Disposition

The plaintiff's notice of motion filed on 3 February 2020 in proceeding 2018/88427 was dismissed.

Orders

  • ["The plaintiff's notice of motion filed on 3 February 2020 in proceeding 2018/88427 is dismissed." 'The plaintiff in proceeding 2018/88427 and proceeding 2018/80831 is to pay the costs of the defendant in each proceeding of the notice of motion referred to in order (1).' 'List proceeding 2018/88427 and proceeding...