Moussa v Camden Council (No.5) [2023] NSWSC 1135 (28 September 2023)

Last Updated: 28 September 2023

Supreme Court New South Wales

Case Name:	Moussa v Camden Council (No.5)
Medium Neutral Citation:	[2023] NSWSC 1135
Hearing Date(s):	13, 14 December 2022; 7, 8, September 2023
Date of Orders:	28 September 2023
Decision Date:	28 September 2023
Jurisdiction:	Common Law
Before:	Garling J
Decision:	See [66]
Catchwords:	CIVIL - Representative Proceedings – Whether any Common Questions – Issues of Commonality – Importance of practicality and common sense – The Chief Judge at Common Law was right in Rodriguez (No 5) – Merck Orders made CIVIL - Representative Proceedings – Whether any Common Questions – Issues of Commonality – Importance of case management principles – Merck Orders made
Legislation Cited:	Australian Consumer Law Civil Procedure Act 2005 Evidence Act 1995 Supreme Court Act 1970
Cases Cited:	Johnson Tiles Pty Ltd v Esso Australia Pty Ltd [2003] VSC 27 Johnson Tiles Pty Ltd v Esso Australia Pty Ltd (No.3) [2001] VSC 372 Merck Sharp & Dohme (Australia) Pty Ltd v Peterson (2009) 355 ALR 20; [2009] FCAFC 26 Rodriguez & Sons Pty Ltd v Queensland Bulk Water Supply Authority t/as Seqwater (No.5) [2015] NSWSC 1771
Category:	Procedural rulings
Parties:	Danny Marielle Moussa (P) Camden Council (D1) Cornish Group Spring Farm Pty Ltd (ACN 120 837 381) (D2) SMEC Testing Services Pty Ltd (ACN 101 164 792) (in liq) (D3)
Representation:	Counsel: D Priestley SC / J Burnett (P) P Braham SC (D1) R Newlinds SC / M Hall (D2) P Gaffney (D3) Solicitors: Mayweathers (P) McCulloch & Buggy Lawyers (D1) Marsdens Law Group (D2) Wotton + Kearney (D3)
File Number(s):	2020/00359004
Publication Restriction:	Not Applicable

JUDGMENT

1. The plaintiff has commenced proceedings pursuant to Part 10 of the Civil Procedure Act 2005 (the “CPA”), claiming damages at common law, and under the Australian Consumer Law, for himself and for all group members who fall within the description set out in 1(c) of the Further Amended Statement of Claim filed on 25 August 2022 (“FASOC”).

Overview

2. Broadly speaking the plaintiff and each other group member own or owned land within a suburb in the southwest of Sydney called Spring Farm. The plaintiff’s claim is that he has suffered loss and damage because his house, built on one of the lots in the Spring Farm area, has subsided due to the below-surface condition of the soil which made it unsound for building upon. The plaintiff also claims consequential economic loss resulting from the soil or land which was, he claims, in an unsound condition. He claims that the group members also suffered similar damage. Finally, he claims by way of pure economic loss that because of the subsidence affecting some (but not necessarily all) properties in the suburb, the suburb generally has been devalued and that constitutes an economic loss to him.
3. Camden Council (“the Council”), which is the first defendant, formerly owned some of the land that has since been developed and sold to the plaintiff and some of the group members. The Council was also the principal planning authority for the area and, at least as alleged by the plaintiff, the principal certifying authority for the subdivision of the land.
4. Cornish Group Spring Farm Pty Ltd (“Cornish”), which is the second defendant, owned and was the developer of some, but not all, of the land in Spring Farm.
5. SMEC Testing Services Pty Ltd (in liquidation) (“SMEC”), which is the third defendant, offered and undertook geotechnical investigation, advice and certification services. It is alleged that with respect to each block, or at least many of them in the subdivision, SMEC provided a Site Classification Report based on at least one borehole which identified the subsurface conditions and what classification the land had which was a factor relevant to whether or not a home could be erected on the land.

Issues for Initial Hearing

6. In the course of case management hearings, including disputes as to the width of discovery, and whether some evidence which has been served by the plaintiff which is the subject of objection, ought be subject to a pre-trial ruling pursuant to s 192A of the Evidence Act 1995, the parties sought a determination on whether any, and if so which, common questions arose in the proceedings, which it would be relevant to specify for determination at the first hearing of the proceedings. Orders of this kind have become more generally known as “Merck Orders”. The term derives from the judgment of the Full Court of the Federal Court in Merck Sharp & Dohme (Australia) Pty Ltd v Peterson (2009) 355 ALR 20; [2009] FCAFC 26.
7. By way of context and background, there has been no application by any defendant for orders striking out the Statement of Claim on the basis that it did not identify any “... substantial question of law or fact” as required by s 157(1)(c) of the CPA. Nor has there been any application by any defendant for relief pursuant to s 166 of the CPA that the proceedings no longer continue as a representative proceeding under Part 10 of that Act.
8. In Merck, the Court (Moore, Sundberg and Tracey JJ) said at [6]-[8]:

“6. In our opinion, it is desirable if not necessary, to identify precisely what issues will be determined in the ‘trial’ (and those that will not be determined) on the assumption, which the parties did not gainsay, that at the end of the ‘trial’, orders will be made which reflect the determination made by the trial Judge on both questions of fact and law or mixed questions of fact and law ...

7. Also, common issues can be determined. There is plainly a controversy about which issues are common. Merck disputes that the issues pleaded in Mr Pederson’s Statement of Claim are, in truth, common questions. However, it is tolerably clear that the scheme of Part IVA of the Federal Court Act is that whilst a proceeding continues as a representative proceeding, the Court should, in the ordinary course (at least in relation to proceedings involving a sizeable group where liability may depend on each member’s individual circumstances) initially deal with issues that are common to all members of the representative group or a sub-group of that group ...

8. It seems to us that given that there is a controversy about what are the common issues, it would be desirable to structure the ‘trial’ by identifying what might be the common issues for determination, though on the footing that if it becomes apparent from the evidence and the submissions that they were not common, they would not then be determined lest they be ‘an issue that relates only to the claims of [one particular] member’.”

9. Section 179 of the CPA requires a judgment given in representative proceedings to identify group members who will be affected by it. A judgment in proceedings under Part 10 of the CPA may involve a determination of a question of law or a question of fact, may make an award of damages for group members or sub‑group members, or an individual who is a member of the group and may award damages in an aggregate amount without specifying the award in respect of particular group members: see s 177(1)(a)(b)(e) and (f).
10. The parties could not agree on whether any, and if so, which, common questions would arise, which it would be proper to specify by way of a Merck Order.
11. It is appropriate to note that the consideration of the common questions, which are to be determined at a “trial”, commences with the proposition that the whole of the plaintiff’s case as an individual claim, would be heard and determined at any hearing which takes place.
12. As the judgment in Merck and subsequent judgments make plain, it is ultimately a matter for the trial Judge to determine whether any of the questions identified in a Merck Order are or are not common, and if so, to whom they are common, whether that be all members or some sub-set of group members. When a court is asked to and makes a Merck Order, it is necessarily engaged in an exercise of prediction. Particularly is that so when Merck Orders are formulated before all of the evidence has been obtained and served. Here, the plaintiff has served his evidence including the expert witnesses upon whom he wishes to rely. As yet, the preparation for hearing has not reached the stage when the defendants have been required to or have served their evidence.
13. As well, as is clear, it may be that before trial, additional questions are added or the parties may be able to agree that one or more questions should be removed from being common questions to be heard and determined at the trial.
14. In dealing with the submissions of the parties, I am informed by the fact that as the identification of common questions for the purpose of a Merck Order is part of the typical case management process, the Court is obliged to have regard to the case management principles described in Part 6 of the CPA. In that respect, I note the following:

(a) that this Court must seek to give effect to the overriding purpose set out in s 56(1) of the CPA, namely, that in civil proceedings the overriding purpose of the Act and Rules of Court is “... to facilitate the just, quick and cheap resolution of the real issues in the proceedings”;

(b) in managing cases, the objects to be considered, include the efficient disposal of the business of the Court and the efficient use of available judicial and administrative resources: s 57(1);

(c) in deciding whether to make any order for the management of proceedings, the Court is obliged to act in accordance with the dictates of justice: s 58; and

(d) directions may be given as to the conduct of any hearing: s 62. In deciding whether to make a direction under these provisions, the Court may have regard to the subject matter and complexity of a case, the number of witnesses to be called, the volume and character of the evidence to be led and the need to place a reasonable time limit on the time allowed for any hearing.

15. In the context of this legislation, the approach by Beech-Jones J (as the Chief Judge then was) in Rodriguez & Sons Pty Ltd v Queensland Bulk Water Supply Authority t/as Seqwater (No.5) [2015] NSWSC 1771 (which seems to me with respect to be entirely correct) is applicable here. His Honour noted that in approaching what common questions may be identified to be heard together with a plaintiff’s case at the initial hearing of a representative proceeding, the issue was a “practical one”. His Honour noted that the identification of such questions “... affords the parties procedural fairness in that they know in advance what issues of fact and law they should be prepared to litigate”: at [15]. His Honour identified and applied the approach taken by Gillard J in Johnson Tiles Pty Ltd v Esso Australia Pty Ltd [2003] VSC 27 at [42]:

“In my opinion, it is important that the Court conducts group proceeding litigation in a practical manner and ensures that as many questions of law and fact having a degree of commonality are decided. Once the group proceeding is completed, and if an individual claim is to proceed, the individual litigant has the benefit of findings of law or fact to assist him in obtaining relief. It follows that a group proceeding is not concerned with the complete cause of action of a claimant, in the sense that all elements of the cause of action and issues raised are determined in the proceedings. A court considers and determines the common questions of law and fact.”

16. Justice Beech-Jones went on to say:

“16. This approach is apposite to the circumstances of this case. To the Court’s observation, the resources that will be devoted to the resolution of these proceedings are likely to be prodigious. The reassembly of the respective armadas for subsequent hearings will no doubt present logistical difficulties, especially if the relevant expert witnesses must return. An approach that involves a determination of as many questions that are of utility to the resolution of the group members’ claims is to be preferred. Such an approach is more likely to facilitate an early resolution either by settlement or otherwise. None of the parties suggested to the contrary.

17. At this point, three further matters should be noted.

18. First, it is notable that Gillard J refers to questions of law and fact having a ‘degree of commonality’. This reflects the possibility that a determination of such a question may lead to answers that, in their application to each claimant, are still fact-specific. This will not deny its character as a common question.

19. Secondly, in Johnson Tiles v Esso Australia Pty Ltd (No.3) [2001] VSC 372, at [83], Gillard J had referred to the posing of a question concerning causation and stated that there will be ‘many group members whose claims will raise common issues of fact and law in relation to causation’. In so stating, his Honour clearly contemplated that the common questions being considered at this point need not be common to all group members. This is expressly recognised by s 168 of the [CPA] ...

20. As the relevant question need not be common to all group members, it follows that the more relevant enquiry is how useful the answer to a particular question may be compared with the inconvenience of litigating it at the first hearing.

21. Thirdly, given that the exercise is one of case management, it follows that the formulation of the common questions is not to be weighed down in technical arguments and neither should they be taken as precluding any party from raising any reasonable arguable point mentioned in the pleading. The posing of these questions is not the same exercise as the identification of separate questions under Uniform Civil Procedure Rule 28.2. Thus, in Johnson (No.3) at [81], Gillard J stated:

‘I propose to state questions, which will be considered and determined at the hearing. The questions are general and not to be the subject of construction arguments, are to be applied in a common‑sense way and will be subject to change if the circumstances demand it. The circumstances would have to be exceptional. As I have said, and I repeat, one must approach a group proceeding in a practical way and decide as many common questions of fact and law as possible.’

22. This approach will apply to the posing of the common questions in this case. At the risk of stating the obvious, it follows that the identification of a common question will not act as some form of substitute for the pleading, it is not to be taken as an indication that any particular legal test implicit in the question is the correct one, and will not preclude any party from submitting that a particular question cannot be answered at a level of generality above the specific facts of any particular claim that is being pursued at the first hearing.”

17. I will adopt the same approach to the resolution of the questions here.
18. The plaintiff proposed 48 questions which were comprehensive in covering all pleaded issues.
19. The Council, the first defendant, opposed many of the plaintiff’s questions but identified 10 questions of its own, relevant to the Council’s own position, and also relevant to questions of damages and apportionment of any liability between the defendants.
20. The second defendant, Cornish, opposed all of the questions framed by the plaintiff and submitted that there were only four questions which could be regarded as common questions, as that term was used in s 157 of the CPA, or else could be regarded as issues of commonality as that phrase had been used by Gillard J in Johnson.
21. The third defendant, SMEC, also proposed only four common questions as arising and opposed those sought to be articulated by the plaintiff.
22. The Court received written submissions in advance of the principal oral hearing, but the oral hearing nevertheless occupied two days with a Court Book provided in advance of the oral hearing which contained over 11,000 pages of material. Not all of the material in the Court Book was ultimately tendered.
23. To summarise and deal with each and every argument put by the three defendants, although the first and third defendants (the Council and SMEC) did adopt in significant part the arguments of the second defendant (Cornish), would be to overlook the matters to which earlier reference has been made, namely that the exercise being undertaken is one of prediction to be engaged in as part of a case management process in a common sense and practical way having regard to the need to resolve as many relevant questions flowing from the determination of the plaintiff’s case as is both practicable and likely to lead to answers which assist in the resolution of some, most, or all of the group members’ claims at an initial hearing, subject of course to the fact that any answers to the questions must reflect the pleaded issues.
24. The questions are not to be used as a method whereby pleadings are ignored, and different causes of action are determined. Nor are the questions to be regarded as precluding the raising of matters that are properly for dispute, nor by their terms closing off the ability of a party to properly raise matters of dispute.
25. It is important also to recall that it will be a matter for the parties to make submissions about, and for the Judge to determine, at the end of the initial hearing, whether the questions are in fact common and, if they are, the extent to which they are common amongst all or some group members.
26. Of particular importance in the identification of these questions in this proceeding is, having regard to the fact that about 1,000 lots of land are contained within the Cornish Masterplan Area, as that is defined in the FASOC, only about half of which were actually the subject of development by Cornish, that the questions, and the consequent effect on the preparation of evidence by the defendants, and the conduct of the initial hearing, does not create a burden which is an intolerable one.

Submissions of the Second Defendant (Cornish)

27. It is convenient to first deal with the submissions of Cornish because the other defendants adopted most of them.
28. Cornish commenced its submissions by accepting that some common questions did arise (although not those identified by the plaintiff) but said that those common questions did not qualify for determination at an initial hearing because they were not substantial as that term is used in s 157(1)(c) of the CPA.
29. The submissions of Cornish drew attention to the failure by the plaintiff, either in the FASOC, or by way of particulars in correspondence, to identify lots in the Cornish Masterplan Area which, it was said, fell within the pleaded description “unsound for building”. Cornish noted that the FASOC did not allege that the entirety of the Cornish Masterplan Area was unsound for building but rather alleged that some lots were. Cornish submitted that in those circumstances, where the plaintiff chose not to identify or particularise the lots, there could not be any common question arising which would be applicable to all lots in the Cornish Masterplan Area unless the plaintiff had pleaded what was described as a “systems case”.
30. Senior counsel for Cornish described a systems case as being one where the pleading identified a common system or process applicable to the development of all of the lots in the Cornish Masterplan Area which had made them unsound for building. Senior counsel submitted that, in the absence of such a case, the Court was being called upon to determine, on a lot-by-lot basis, what the result or outcome of the state of that land was, namely that this was unsound for building.
31. Cornish submitted that meant that what was required was a lot-by-lot analysis of the subsoil conditions which could not possibly be a common question.
32. Cornish contended as well that the generality with which the term “unsound for building” had been used in the FASOC also precluded a common question arising of a kind capable of being determined at an initial hearing. Senior counsel submitted that that phrase required rigorous identification of the components. He submitted, by way of example, that whether or not land was unsound for building may involve an economic or monetary consideration. He submitted that what was really being called for was a judgment that necessarily had an economic component, given that, as a matter of engineering, including the ability to install supporting piles at great depth into solid ground, it would always be possible to design and engineer a building to be constructed on land which consisted of uncompacted fill. But as he noted, the cost of building such foundations might well exceed a reasonable cost having regard to the possible market value of a house and land in a suburb such as Spring Farm. It was the imprecision of the term that led to the conclusion that no common questions arose.
33. When addressing the plaintiff’s suggested common questions, which concerned the existence of a risk of harm, senior counsel for Cornish submitted that in the absence of any sub-group nominated on the pleadings, or the identification of sample group members with respect to whom points of claim or similar had been provided which points articulated their particular claim, there could be no common question about the risk of harm. The reason that there could be no common question was that the risk of harm pleaded in the FASOC, and picked up in the common questions proposed by the plaintiff, related to one or more risks of harm which were quite different, namely a harm constituted by way of property damage, harm by way of economic loss consequential upon property damage, and harm by way of pure economic loss of one kind or another.
34. Put differently, senior counsel seemed to submit that where the plaintiff’s risk of harm was constituted by property damage and consequential economic loss, there was no question of any commonality with someone who claimed to suffer only pure economic loss. As well, senior counsel pointed to the fact that the breadth of the group members included derivative purchasers, by which it was meant that the group member had purchased the house from another person who had purchased it from Cornish Group. As well, he noted that some purchases were made by investors who bought a property not intending to live in it, or another purchaser purchasing the property for an entirely different reason. He submitted that such breadth of group membership meant that common questions did not arise as the plaintiff contended.
35. That meant, senior counsel suggested, that there could not be a common duty of care nor could there be a common question about the knowledge of his client, either actual or constructive, of a kind which would mean that there was foreseeability of the risk of harm.
36. As earlier indicated, Cornish did accept that a small number of common questions could be formulated but submitted that these were not substantial.

Submissions of the First Defendant – Camden Council

37. The Council adopted the submissions of Cornish insofar as those submissions dealt with the absence of particulars and the vague and ill-defined expressions in the FASOC.
38. Senior counsel for the Council submitted orally that there were two fundamental difficulties for his client arising out of the FASOC which meant that common questions could not be identified and articulated. The first of these difficulties was whether the common questions related to all lots in the Spring Farm suburb, or the lots in the Cornish Masterplan Area (approximately 1,000), or in the area known as the Council land as described in the FASOC (approximately 60 lots). The Council pointed to the fact that the plaintiff’s refusal to identify any particular lots meant, as Cornish had submitted, that there could be no common question arising.
39. The second principal difficulty identified by the Council was the existence of, and the nature and content of, a duty of care so vaguely articulated that common questions could not be identified. The Council pointed out that it was being sued in a number of different capacities: namely, as the owner of some lots which were developed (being the Council land); as the planning authority for all of the land; and also as the principal certifying authority with respect to some of the development on the land.
40. By reason of the possible differences in how the duty arose, the Council submitted that common questions could not properly be formulated on the existing pleadings.
41. The Council did accept that common questions could be identified which, in the first instance, limited the questions to the Council land.
42. The Council accepted that questions about whether the plaintiff and group members were entitled to damages by way of pure economic loss for the stigmatisation of the properties in the Spring Farm area would be a common question. Finally, the Council accepted that questions about apportionment between defendants and limitation defences could arise as common questions.

Submissions of the Third Defendant – SMEC

43. In broad terms SMEC submitted that, in line with the submissions of the first and second defendants (the Council and Cornish) the absence of particularity about which lots were unsound for building in the Cornish Masterplan Area meant that any common question which was to be determined, could only be determined with respect to land in a defined, contiguous area, such as the lots contained within the Council land. In that respect, SMEC noted that the Court’s orders dealing with the plaintiff’s initial discovery application had been confined to documents relating to the Council land rather than the broader Cornish Masterplan Area or the Spring Farm area more generally.
44. SMEC also submitted that, even if the common questions were confined to the Council land, a determination of whether land may be unsound for building would necessarily depend on the characteristics of a specific lot, and the financial position of each specified lot owner over time. SMEC submitted that an examination of the expert evidence served by the plaintiff led to the conclusion that the real complaint was not that any land was unsound for building from an engineering perspective, but rather was uncommercial for building.
45. Ultimately, SMEC relied on the same submissions which had been made by counsel for Cornish. However, SMEC did accept that there were some common questions which arose on the pleadings and it set those questions out.
46. The lack of particularity in the FASOC of the case against SMEC was, it submitted, demonstrated by the failure of the plaintiff to identify what the services were which SMEC provided, when they were provided, and in respect of what works or lots they were provided.
47. Leaving aside site classification reports which SMEC provided with respect to each lot in the Council land area and some of the other lots, SMEC submitted that the question of duty of care could not be common because, assuming it existed, it would have arisen by reason of a variety of other services which were not adequately specified.
48. SMEC, like the other two defendants, pointed to the difficulties in regarding the existence of a duty of care as being common, because SMEC submitted that the “salient features”, the identification of which may be sufficient to give rise to a duty of care, could involve a mixture which differed from person to person and lot to lot. In those circumstances, SMEC submitted that unless it was to be said that the salient features were identical with respect to a group of claimants, then there could be no common question at all, or certainly no common question in the absence of the identification of sub-groups or sample group members.

Discernment

49. It is unnecessary to set out the plaintiff’s submissions because, as is apparent from the description of the submissions of the defendants, the plaintiff seeks, in 48 common questions, to have each of the issues which arise from the whole of the FASOC determined. It contends in brief summary that the questions are based upon issues identified in the pleadings which, having regard to the fact that the matter is a representative action, are likely to be common to the plaintiff and group members or to groups of members which do not need, at this stage, to be identified by way of a sub-group or sample member.
50. Ultimately, the position is that the Court is confronted by a series of objections largely, but not entirely, made by reference to vagueness and imprecision of terms used in the pleadings, a failure on the part of the plaintiff to provide particulars when asked, the breadth of the definition of the group members such that not all group members will be claiming precisely the same damage and, as well, not all group members will be in the same position in the sense that they acquired their land in different ways, not only from Cornish but from other vendors, and for different purposes, and were people or entities of varying sophistication.
51. It was said that in the absence of the definition of sub-groups or the identification of sample members, such a spread of members of the group told against the existence of any common questions.
52. It is clear that some of the common questions proposed by the plaintiff went too far in the sense of the geographical area covered, and also suggested some matters as common which actually were not. It is equally clear that the questions posed by the defendants were too narrow and were unlikely to lead to any real benefit being obtained by group members in conjunction with the hearing of the plaintiff’s claim.
53. Accordingly, I have come to the view that the appropriate course is for the Court to formulate the questions, noting that it will be a matter, ultimately, for the trial Judge to determine whether the questions as formulated are common and noting as well that if, for some reason, the nature of the evidence available to be considered requires adjustment to those questions either by the addition of other questions, the removal of the questions I will state, and/or a modification of the terms of questions, that is a matter which the parties are at liberty to bring to the Court’s attention. That is not to say that the parties are at liberty to re‑argue the matters determined by this judgment without there being any significant change in the present state of the proceedings.
54. However, before stating those questions, it is appropriate to consider some of the central points of the defendants’ submissions which I do not accept.
55. I do not accept that it is necessary when formulating questions by way of Merck Orders for those questions to fall within the constraint of a “substantial common question of fact or law” as that phrase is used in s 157(1)(c) of the CPA.
56. The phrase used in that sub-section provides the gateway for the existence of a representative proceeding. As the authorities show, there has to be at least one question of substance identified in the pleading commencing a representative action as being common to the group members. If there is not, then the proper course of action is for one or more of the defendants to move to strike out the pleading, or else to have it summarily dismissed. No such step has been taken here. In this matter, the formulation of Merck Orders is carried out on the basis that the threshold questions required by s 157 are all met because there have been no interlocutory proceedings taken by any of the defendants to suggest that the gateway has not been passed.
57. The determinant of whether a question is appropriate to be stated as a question in the context of making a Merck Order is whether, even though the questions may not be common to all group members, there is nevertheless a practical utility in posing the questions and answering them because the answers are likely to be useful in the determination of the claims. I approach this matter as an exercise of case management: see Beech-Jones J (as the Chief Judge then was) in Rodriguez (No 5) as earlier referred to.
58. To the extent that there is merit in the complaints of the defendant that the failure of the plaintiff to particularise which lots in the Cornish Masterplan Area were likely to be unsound for building have not been specified in circumstances where Cornish is responsible for the development of approximately half of those lots, and given the geographic spread of the lots, I am satisfied that at least at present the questions (other than the issues relating to the pure economic loss claim for stigmatisation) should be limited to the area of the Council land. This approach will also have the benefit of simplifying the conduct of the Council, by reference to which the duty of care owed by it to lot owners in that land arises, having regard to its multiple roles. It will also simplify SMEC’s position in terms of allowing it to readily identify whether it did anything and if so, what, in addition to providing site classification reports for the lots in that land.
59. Such a narrowing also has the benefit of ensuring that the extent of any hearing will not be unmanageable.
60. To the extent that any of the defendants complain about vagueness of definitions, what particular words mean - such as “development”, there is simply no reason to think they mean anything other than their ordinary English meaning informed by the context of the development of the Spring Farm suburb and the roles of the defendants. Trying to provide further definition at this stage is likely to be unrewarding because such definition will depend in part on the findings of fact which are made in due course and the evidence underlying those findings.
61. As well, I am satisfied that there is no prejudice to the defendants by the absence of sub‑groups or sample members at this stage. There is no reason to think that the plaintiff, and the lawyers retained by him, are not capable of fully propounding all of the claims set out in the proceedings. For the purposes of the questions contained in the Merck Orders, it is unnecessary at this stage to create sub‑groups or sample members.
62. It may be that in due course, after the initial hearing, the appropriate procedure may be to create such sub‑groups, but that need not be determined at this stage, and does not stand in the way of the specification of common questions.
63. Equally, I do not accept one of Cornish’s principal submissions that in order for there to be a common question, the plaintiff must plead and prove what it described as a “systems case”. It may be that if such case was pleaded, the formulation of common questions may be easier, and more comprehensive. But that is beside the point. It is a matter for the plaintiff to determine how he pleads the case as a representative proceeding. It is a matter for the Court then, in light of the pleading and any defences to it, to form a view as to what questions may be common and can be appropriately formulated as part of a Merck Order.
64. As the submissions of SMEC correctly stated, this Court has abundant power to formulate and state questions for a determination at an initial hearing. This Court’s jurisdiction is a plenary one (see s 23 of the Supreme Court Act 1970) and there is no constraint on the exercise of its judicial power as there may be in other Courts. I see no difficulty in proceeding to formulate appropriate questions.
65. It is appropriate in the light of these remarks to formulate questions which in my view are, as a matter of practical reality, likely to be common to the plaintiff, and various of the members of the group.

Orders

66. Accordingly, for those reasons, I will make the following orders:

(1) Pursuant to r 28.2 of the Uniform Civil Procedure Rules 2005, the Court orders, until further order, that the following questions be heard, and subject to any direction by the trial Judge pursuant to Part 10 of the Civil Procedure Act 2005, be determined, at an initial hearing, and before any further trial in the proceedings:

(a) All questions arising in the proceedings insofar as those questions determine all causes of action brought by the plaintiff in his individual capacity, and all such relief, by way of damages, as he claims, as an individual, as set out in the Further Amended Statement of Claim filed on 25 August 2022 (“FASOC”).

(b) Any and all of the questions set out in the Annexure to this judgment.

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ANNEXURE

COMMON QUESTIONS

Commonality

1. Are any of the following questions common to the members of the Group as defined in paragraph 1(c) of the FASOC? If so, are they common to all members of the Group, or else to some members of the Group, and if so, which members?

Cornish Masterplan Area Development

2. Which lots in the Cornish Masterplan Area were developed by the second defendant ?

Note: For the purposes of Questions 3 and 4 below, “earthworks” means works by way of excavation, cutting, filling, compaction and stabilisation of the former natural state of the land, including any construction by way of drainage systems or supporting structures such as retaining walls.

3. Prior to May 2007, in respect of the Council land and the land within the Cornish Masterplan Area reasonably proximate to the Council land:

(a) what by way of earthworks had been undertaken;

(b) when had such earthworks been undertaken;

(c) by whom, and upon whose authority or instructions, had such earthworks been undertaken;

(d) for what purpose had such earthworks been undertaken; and

(e) at the completion of any such earthworks, what was the compliance of the earthworks with any, and if so which, applicable Australian standard?

4. Between May 2007 and 1 July 2020 in respect of the Council land and the land within the Cornish Masterplan Area reasonably proximate to the Council land:

(a) what by way of earthworks had been undertaken;

(b) when had such earthworks been undertaken;

(c) by whom, and upon whose authority or instructions, had such earthworks been undertaken;

(d) for what purpose had such earthworks been undertaken; and

(e) at the completion of any such earthworks, what was the compliance of the earthworks with any, and if so which, applicable Australian standard?

5. Did any of the defendants know, or ought they to have known, of any of the earthworks identified in answer to Questions 3 and 4 above? If so, when did they have, or when ought they to have had, knowledge of any of the earthworks?
6. Where and to what extent (if at all) is the Plaintiff’s land not fit for residential building development or construction due to the unsound condition of the soil (unsound for building)?
7. Did the first defendant know, or ought it to have known, that the Plaintiff’s land was unsound for building? If so:

(a) what was, or ought to have been, known by the first defendant; and

(b) when did it have, or ought to have had, that knowledge?

8. Did the second defendant know, or ought it to have known, that the Plaintiff’s land was unsound for building? If so:

(a) what was, or ought to have been, known by; and

(b) when did it have, or ought to have had, that knowledge?

Negligence

Risk of Harm

9. If the Council land (including the Plaintiff’s land) was unsound for building, was there a risk of damage to property, consequential economic loss, and pure economic loss being suffered by owners including subsequent owners, of any residential lots comprising the Council land (Risk of Harm)?
10. Was any such Risk of Harm not insignificant?

First Defendant Duty of Care and Breach

11. Did the first defendant owe a duty of care to a class of persons including the Plaintiff and Group Members? If so, what was the nature, content and scope of that duty of care?
12. Did the first defendant breach any duty of care it is found to have owed in the manner alleged?
13. Did any relevant acts or omissions of the first defendant involve the exercise of, or failure to exercise, a special statutory power for the purpose of s 43A of the Civil Liability Act 2002?
14. If so, was the act or omission in the circumstances so unreasonable that no authority having the special statutory power in question could properly consider the act or omission to be a reasonable exercise of, or failure to exercise, its power?

Second Defendant Duty of Care and Breach

15. Did the second defendant owe a duty of care to a class of persons including the Plaintiff and Group Members? If so, what was the nature, content and scope of that duty of care?
16. Did the second defendant breach any duty of care found to have been owed in the manner alleged?

Third Defendant Duty of Care and Breach

17. In respect of which lots in the Cornish Masterplan Area, did the third defendant issue a Site Classification Report, or any other expert geotechnical report (by whatever name)?
18. Did the third defendant owe a duty of care to a class of persons including the Plaintiff and Group Members? If so, what was the nature, content and scope of that duty of care?
19. Did the third defendant breach any duty of care it is found to have owed in the manner alleged?

Australian Consumer Law Claims

Second Defendant

20. Did the second defendant represent to the Plaintiff and Group Members that the residential lots in the Council Land and the Cornish Masterplan Area were, and remained, suitable for residential building?
21. If so, was any such representation false?
22. Did the second defendant engage in misleading and deceptive conduct contrary to s 18 of the Australian Consumer Law as alleged?
23. Did the second defendant make false or misleading representations to the Plaintiff and Group Members concerning the characteristics of land or the use to which the land is capable of being put or may lawfully be put contrary to s 30 of the Australian Consumer Law as alleged?

Third Defendant

24. Did the third defendant represent to the Plaintiff and Group Members that the residential lots in the Cornish Masterplan Area had the class indicated on the site classification reports?
25. If so, was any such representation false?
26. Did the third defendant engage in misleading and deceptive conduct contrary to s 18 of the Australian Consumer Law as alleged?
27. Did the third defendant make false or misleading representations to the Plaintiff and Group Members concerning the characteristics of land or the use to which the land is capable of being put or may lawfully be put contrary to s 30 of the Australian Consumer Law as alleged?

Causation

28. Was any breach of a duty of care, by any of the defendants, a necessary condition for the occurrence of the harm (or any of it), of the Plaintiff and Group Members?
29. If the answer to Question 28 is in the affirmative, is it appropriate for the scope of such party or parties’ liability to extend to the harm so caused?
30. Did any breach of the Australian Consumer Law cause loss and damage to the Plaintiff and Group Members?

Stigmatisation

31. Has there been a general stigmatisation of properties in the Spring Farm Area as a result of a reasonable apprehension that some land within the Spring Farm Area is unsound for building?
32. If so, what was the cause of any stigmatisation?
33. Has any stigmatisation had an adverse effect on the value of properties in the Cornish Masterplan Area, or anywhere else in Spring Farm?

Apportionment

34. If damages are recoverable by the Plaintiff by a judgment based on any of the claims made against any of the defendants, are any of the claims made by the Plaintiff “apportionable claims” within the meaning of s 34(1) of the Civil Liability Act 2002?
35. If the answer to Question 34 is yes, what is the appropriate amount of any judgment against any defendant, having regard to s 36(1) of the Civil Liability Act 2002?