FEDERAL COURT OF AUSTRALIA

Baron v Commonwealth Bank of Australia Limited (No 2) [2019] FCA 1062

ORDERS

THE COURT ORDERS THAT:

1.    Pursuant to r 1.32 of the Federal Court Rules 2011 (Rules) and s 33ZF of the Federal Court of Australia Act 1976 (Cth) (the Act), and until further order:

(a)    the applicants in this proceeding (Baron Applicants), and the applicant in proceeding VID1085/2017 (Zonia Applicant) (together, the Applicants) jointly:

(i)    nominate one email address for service;

(ii)    engage one set of counsel to represent the Applicants and group members in both proceedings;

(iii)    use their best endeavours to ensure that all correspondence and other communication from the Applicants’ solicitors to the respondent’s solicitors shall be sent or made jointly on behalf of the Applicants by only Maurice Blackburn Pty Ltd or Phi Finney McDonald Pty Ltd (save for correspondence and communications relating solely to making or responding to any interlocutory applications in respect of matters that are not common to this proceeding and proceeding VID1085/2017);

(iv)    make any interlocutory applications that are necessary or respond to any interlocutory applications filed by the respondent, save for matters that are not common to this proceeding and proceeding VID1085/2017;

(v)    retain expert witnesses and file any expert witness evidence;

(vi)    file any lay evidence (other than evidence from the Baron Applicants or an officeholder of the Zonia Applicant);

(vii)    conduct the discovery process including negotiating an electronic discovery protocol and any categories of discovery;

(viii)    use their best endeavours to avoid duplication of work and progress the two proceedings in a cooperative manner;

(ix)    confer on any major decisions (including pleadings amendments), the making or amendment of any interlocutory applications filed by the Applicants whether jointly or separately, and listing dates;

and each comply with the Cooperative Litigation Protocol dated, and provided to the Court on, 18 March 2019;

(b)    the respondent be required to produce one set of discovery documents to the Applicants;

(c)    evidence in this proceeding be evidence in proceeding VID1085/2017; and

(d)    liability for payment of third-party disbursement costs incurred by the Applicants’ legal representatives on behalf of the Applicants and arising from the Applicants’ joint performance of work in accordance with order 1(a) be split equally between the Zonia Applicant and the Baron Applicants.

2.    The Baron Applicants be granted leave to file and serve:

(a)    an Amended Originating Application substantially in the form of Annexure TF-6 to the affidavit sworn by Timothy Michael Luke Finney dated 20 February 2019 (Harmonised Originating Application); and

(b)    an Amended Statement of Claim substantially in the form of Annexure TF-7 to the affidavit sworn by Timothy Michael Luke Finney dated 20 February 2019 (Harmonised Statement of Claim),

with each document to be harmonised with, and in respect of the allegations made against the respondent substantially the same as, the corresponding documents to be filed and served by the Zonia Applicant in accordance with the corresponding orders in proceeding VID1085/2017.

3.    Pursuant to r 1.34 of the Rules:

(a)    the requirements of r 8.23(2)(a) of the Rules be dispensed with for the purpose of the Harmonised Originating Application to be filed by the Baron Applicants; and

(b)    the requirements of r 16.59(2)(a) of the Rules be dispensed with for the purpose of the Harmonised Statement of Claim to be filed by the Baron Applicants.

4.    By no later than 28 days after service of the Harmonised Statement of Claim, the respondent file and serve its defence to the Harmonised Statement of Claim.

5.    The respondent pay the Baron Applicants’ costs of and incidental to this interlocutory application, save for the costs thrown away by reason of the amendments the subject of Orders 2 to 4 above which shall be paid by the Applicants.

6.    The parties provide to the Associate to Yates J by 4.00 pm on 23 July 2019, agreed or competing draft programming orders in respect of the respondent’s interlocutory application filed in this proceeding on 21 February 2019, and the respondent’s interlocutory application filed in proceeding VID1085/2017 on 21 February 2019, in respect of the relief that the respondent now wishes to pursue.

7.    This proceeding, and proceeding VID1085/2017, be listed for a case management hearing at 9.30 am on 26 July 2019.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

YATES J:

1    The applicants, Philip Anthony Baron and Joanne Baron (the Baron applicants), and the applicant in proceeding VID1085/2017 Zonia Holdings Pty Ltd (Zonia), seek orders for (what has been described in submissions as) Cooperative Case Management (the Cooperative Case Management orders). These orders are opposed by the respondent in each proceeding, Commonwealth Bank of Australia (CBA).

2    I am persuaded that it is appropriate that such orders be made. My reasons are stated in Zonia Holdings Pty Ltd v Commonwealth Bank of Australia Limited (No 2) [2019] FCA 1061.

Associate:    

Dated:    10 July 2019