AMP Warringah Mall Pty Ltd v Jewel Market Pty Ltd

HER HONOUR: Before the Court is an application brought by summons filed by AMP Warringah Mall Pty Ltd and another party seeking to have two proceedings commenced against it in the District Court transferred to this Court. The Court has power to make such orders under s 140 of the Civil Procedure Act 2005 (NSW).

The summons further seeks an order that the two proceedings sought to be transferred and a third set of proceedings commenced in this Court be heard together, with evidence in each of the proceedings being evidence in the others.

All three proceedings arise out of a single incident at Warringah Mall when the fire sprinkler system failed, causing a large amount of water to be released into a number of commercial premises. Each of the plaintiffs in the three proceedings sought to be joined was proprietor of commercial premises at the mall. Plainly the three proceedings raise a common issue as to the conduct of the plaintiffs bringing the present application. There are some small differences between the parties as to the case put forward concerning concurrent wrongdoing but I am satisfied that the primary issue as to liability will be common to all three proceedings. That is a compelling reason for having all three proceedings heard in the same court.

The first defendant to the present application, Jewel Market Pty Ltd, has this morning sought an adjournment of AMP's application on the basis that not all defences in all proceedings have yet been filed. It was submitted by Ms Lee, who appears for Jewel Market, that the hearing of the application should abide that event. I am satisfied that whatever might be pleaded in any defence filed in the proceedings, the commonality of the primary issue as to liability will remain such that it will serve the interests of justice for all three proceedings to be in the same Court, probably to be heard together and probably on the basis that the evidence in each proceeding will be evidence in the other.

In the circumstances I do not think it is appropriate to adjourn the application today. The appropriate course rather, in my view, is to make the order transferring the two District Court proceedings to the Supreme Court as sought and to stand all three proceedings over before me for case management together and for consideration on a later date of the issue whether the proceedings should be heard together and whether evidence in one should be evidence in the others.

For those reasons I make orders 1 and 2 in the summons. The application for order 3 will be stood over to be considered on a later date. All three proceedings will be listed before me on 23 May 2017 at 9.30am.