Where the same facts have generated two or more proceedings, running them separately wastes money and risks inconsistent findings. The National Court can bring them together.
Consolidation is on the checklist
At the mention, the Court will consider, among other things —
(e) Whether there are any related proceedings and their consolidation;
alongside legal representation, the Court’s jurisdiction and locus standi, sufficiency of pleadings, whether any condition precedent or statutory time bar arises, joinder of necessary parties and causes of action, any cross-claim or set-off, and whether the parties have attempted out-of-court settlement.
Consolidation is not an afterthought in the National Court — it is a standing item the Court turns its mind to when the matter first comes before it for directions.
If you know of a related proceeding, say so at the mention. The later it is raised, the more likely both matters will have progressed on different tracks and the harder consolidation becomes.
Where the power comes from
| Provision | Effect |
|---|---|
| Listings directions | Consolidation of related proceedings is expressly considered at the mention |
| O 4 r 31(2) | The Court shall give such directions as are convenient for the just, quick and cheap disposal of the proceedings |
| O 4 r 31(3)(c) | The Court may make any orders relating to the conduct of the proceedings which it might make on motion by a party |
| O 5 r 6 | Where joinder may embarrass or delay trial or is otherwise inconvenient, the Court may order separate trials or make such other order as it thinks fit — the mirror image of consolidation |
| O 10 r 3 | Proceedings are set down for trial generally, unless the Court otherwise orders |
| O 10 r 6 | Where the Court considers the proceedings not ready for trial, it may give directions as to the steps to be taken |
| Constitution s 155(4) | Power to make such orders as are necessary to do justice in the circumstances of a particular case |
Where the Rules do not supply a specific mechanism, the National Court has an inherent power under Constitution section 155(4) to make orders in the nature of prerogative writs and such other orders as are necessary to do justice.
Read with Order 1 Rule 12 — directions where procedure is wanting or in doubt — and section 9 of the National Court Act (Chapter 38), which makes the Rules subject to “except as directed by the National Court at any stage of the matter”, the Court is not short of power.
What the Court will weigh
Common questions. The test that runs through Order 5 Rule 2 for joinder is whether some common question of law or of fact would arise, and whether the rights to relief arise out of the same transaction or series of transactions. The same thinking applies here.
Risk of inconsistent findings. Two judges deciding the same factual question differently is the strongest argument for consolidation.
Saving of cost and time. One set of discovery, one set of witnesses, one trial.
Stage of each proceeding. Consolidating a matter ready for trial with one still in pleadings usually delays the first.
Prejudice. Order 5 Rule 6 identifies the countervailing concern — whether the arrangement may embarrass or delay trial or is otherwise inconvenient.
Options short of full consolidation
Hearing together without consolidation. The proceedings keep their separate identities and judgments, but are tried at the same time before the same judge on common evidence.
A test case. One proceeding is tried and the others stayed to abide the outcome. A stay is the mechanism.
Trial of a common question first. Order 10 Division 4 allows the Court to order the separate decision of any question.
Joining parties instead. Where the real problem is that a necessary party is missing, Order 5 Rule 8 allows them to be added — on application by them, by a party, or of the Court’s own motion.
Some proceedings are managed under their own regimes and are not simply consolidated with ordinary civil matters:
- The Commercial List under Order 10A has its own case management;
- Judicial review under Order 16 requires leave and follows a distinct path;
- Election petitions are governed by the Election Petition Rules 2017;
- Human rights proceedings run on the Human Rights Track under Order 23.
Motions in appeals, judicial review, commercial and election matters are also excluded from the ordinary Motions List by Rule 1 of the Motions (Amendment) Rules 2005.
Making the application
At a directions hearing or mention — the simplest course, and the one the listings checklist contemplates. Raise it orally and ask for directions.
By notice of motion in either proceeding, supported by an affidavit identifying the other proceeding by its year and serial number, exhibiting the pleadings in both, and explaining the common questions.
Remember Rule 8 of the Motions (Amendment) Rules 2005 — the motion must contain a concise reference to the Court’s jurisdiction to grant the order.
Sources
- National Court Rules 1983 — O 1 r 12; O 4 rr 31, 37–48; O 5 rr 2, 6, 8; O 10 rr 2–7, Div 4; O 10A; O 16; O 23; Motions (Amendment) Rules 2005 r 1
- National Court Act (Chapter 38) — s 9
- Constitution — s 155(4)
Before relying on anything here, read the current text of the National Court Rules 1983 and check for later amendments. If a decision matters to you, get advice — start with the Office of the Public Solicitor, or find a firm in the law firms directory.