Barbara O'Sullivan v Challenger Managed Investments Limited [2008] NSWSC 602

Barbara O'Sullivan v Challenger Managed Investments Limited [2008] NSWSC 602

The proposed separate questions concerned threshold common issues that were clearly severable from the balance of the proceedings and their determination would promote the just, quick and cheap resolution of the real issues by potentially disposing of the proceeding or narrowing residual causation and quantum issues. The defendant's prematurity objections were case management concerns that could be addressed through evidence timetables and later applications if necessary, so the discretion should be exercised to make separate question orders.

Jurisdiction
Australia
Judgment Date
11 June 2008
Procedural Posture
Representative Proceeding; Application for Separate Determination of Questions / Interlocutory Application for Orders Under Rule 28.2 of the Uniform Civil Procedure Rules 2005
Outcome
Separate question orders made.
Legal Topics
['separate Question Orders' 'misleading or Deceptive Conduct' 'prospectus Representations' 'common Issues in Representative Proceedings' 'case Management']
['civil Procedure' 'representative Proceedings' 'securities and Consumer Protection'] ['separate Question Orders' 'misleading or Deceptive Conduct' 'prospectus Representations' 'common Issues in Representative Proceedings' 'case Management']

Case Brief

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Procedural Posture

Representative Proceeding; Application for Separate Determination of Questions / Interlocutory Application for Orders Under Rule 28.2 of the Uniform Civil Procedure Rules 2005

Legal Issues

  1. 1 ["Whether the plaintiff's proposed questions should be determined separately from and before all other questions in the proceedings." 'Whether threshold common issues concerning alleged misleading or deceptive conduct should be resolved before individual causation and quantum issues for the plaintiff and represented persons.' 'Whether the application for separate questions was premature because the plaintiff had not filed a reply or further clarified issues raised by the defence.']

Ratio Decidendi

The proposed separate questions concerned threshold common issues that were clearly severable from the balance of the proceedings and their determination would promote the just, quick and cheap resolution of the real issues by potentially disposing of the proceeding or narrowing residual causation and quantum issues. The defendant's prematurity objections were case management concerns that could be addressed through evidence timetables and later applications if necessary, so the discretion should be exercised to make separate question orders.

Court Disposition

Separate question orders made.

Orders

  • ['Questions concerning whether the alleged representations were made by the defendant were to be determined separately and before all other questions in the proceedings.' 'If those representations were made, questions concerning whether they were misleading and/or to be taken to be misleading in contravention of...