COURT
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Hill J.(1)

CWDS
  Practice and Procedure - Amendment of statement of claim - representative
proceedings involving disparate causes of action - whether leave to amend
should be granted - whether part of proceedings constituting separate cause of
action could be transferred to the Supreme Court of a State where
substantially similar proceedings pending.
  Federal Court Act 1976 Part IVA: s.33C
  Trade Practices Act 1974: ss.52, s.86A(2)
  Jurisdiction of Courts (Cross-Vesting) Act (Cth) 1987: s.5(4).
  General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112
CLR 125; applied.
  Catt v Marac Australia Ltd (1987) 9 NSWLR 639; distinguished.
  Poignand v NZI Securities Australia Ltd (1992) 14 ATPR 41-181, 109 ALR 213;
distinguished.
  Jackson v John Fairfax and Sons Ltd (1988) 96 FLR 145; applied.

HRNG
SYDNEY, 2 February 1993
#DATE 1:3:1993
  Solicitors for Applicant:    M.S. Smith   Counsel and Solicitors       P.R.
Dutney QC instructed by
for Respondent:                MacGillivrays

ORDER
THE COURT ORDERS THAT:
  1. The proceedings to the extent that they purport to be brought under Part
IVA of the Federal Court Act 1976 no longer continue under that Part.
  2. The applicant have leave to amend its application so as to join the
following as applicants to the proceeding:
      (a) Equity Management Corporation Limited
      (b) Corewell (1981) Pty Ltd.
      (c) Deveban Pty Limited.
      (d) Offida Holdings Pty Ltd
      (e) Fedora Pty Ltd
      (f) Aphrodite Pty Ltd
      (g) Grendell Pty Ltd
      (h) Othello Pty Ltd
      (i) Michael Stanislaus Smith
  3.  The applicants have leave to join the following
      as respondents to the proceedings:
      (a) Thomas Joseph Bridston
      (b) Murray Gordon Pollack
      (c) Bruges Pty Ltd (ACN 008 968 563)
      (d) Peter John HALL
      (e) Ian Frederick STANWELL
      (f) Graeme Julian SAMUEL
      (g) Alan Anthony COX
      (h) Nicholas Frank GREINER
      (i) Bernard Phillip HORN
      (j) Philip Whitney DEER
      (k) Brimley Pty Ltd (ACN 009 183 608)
      (l) Grandstand Holdings Pty Ltd (ACN 009 350 985)
      (m) Wentina Pty Ltd (ACN 009 054 577)
  4. The applicants file and serve within twenty-one days of the date hereof
an amended application setting out the relief sought by such of the persons as
shall be joined as parties against such of the Respondents as shall have been
joined in the proceedings.
  5. The applicants have leave to amend the statement of claim in accordance
with exhibit MSS4 to the affidavit of Michael Stanislaus Smith of 29 January
1993, save and except for paragraphs 133-156 (inclusive) and paragraphs 164
and 165, such amended statement of claim to be filed and served 21 days from
the date of this order.
  6. The proceedings against the first Respondent and such of the persons
named in order 3 (d) to (j) inclusive as shall be joined be transferred to the
Supreme Court of Queensland pursuant to s.5(4) of the Jurisdiction of Courts
(Cross-Vesting) Act (Cth) 1987.
  7. Order 6 be suspended for a period of 28 days from the date hereof.
  8. Equity Management Corporation Ltd have leave to make a claim pursuant to
s.33C of the Federal Court Act 1976 against all or some of Brimley Pty Ltd,
Grandstand Holdings Pty Ltd and Wentina Pty Ltd on behalf of its shareholders.
  9. Corewell (1981) Pty Ltd have leave to make a claim pursuant to s.33C of
the Federal Court Act 1976 against all or some of Thomas Joseph Bridston,
Murray Gordon Pollack and Bruges Pty Ltd on behalf of the beneficiaries of the
Corewell Unit Trust.
  10. Subject to the operation of order 6, the claims referred to in orders 8
and 9 be joined in the present proceedings and that the applicants, after the
expiration of 28 days from the date of this order and before the expiration of
a further fourteen days, thereafter file and serve upon the respondents to the
proceedings remaining in this Court an amended application and amended
statement of claim reflecting the orders sought and the claims made by all
applicants in the proceedings.
  11.  Both motions be dismissed, subject to the above orders.
  12. The applicant pay the respondent's costs of the two motions.
  13. The matter be stood over to a date to be fixed for further directions,
with liberty to either party to restore the matter to the list on four clear
days' written notice to the other.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal
Court Rules.

JUDGE1
HILL J.  Before the Court are two notices of motion.  The first is a motion of
the applicant, Soverina Pty Ltd ("Soverina") seeking leave to amend its
application and statement of claim, the joinder of various parties as
respondents, an injunction restraining the respondent from proceeding further
in proceedings commenced by it in the Commercial Division of the Supreme Court
of Queensland; or alternatively, the joinder of various applicants as parties
in the proceedings with leave for Soverina to represent those applicants.  The
second notice of motion, that of the respondent, seeks an order that the
proceedings be dismissed, or that they be stayed pending determination of the
proceedings in the Supreme Court of Queensland.
2.  The present proceedings were commenced on 2 November 1992 in this Court.
The proceedings in the Supreme Court of Queensland ("the Queensland
proceedings") were commenced by the respondent to the present proceedings,
Natwest Australia Bank Limited ("Natwest"), by writ of summons dated 27
February 1990.  Offida Holdings Pty Ltd ("Offida"), Fedora Pty Ltd ("Fedora"),
Aphrodite Pty Limited, Grendell Pty Limited, Othello Pty Ltd and Mr Michael
Stanislaus Smith (all of whom are hereafter referred to as "the guarantors"),
are also parties to those proceedings.  By these proceedings, Natwest sought
to recover an amount of $3,704,483.51, said to be owing to it by Soverina
under a credit facility agreement guaranteed by the guarantors.  Soverina and
the guarantors filed and served a defence and cross-claim in the Queensland
proceedings on 21 May 1990.  The cross-claim brought in those proceedings is
precisely the same as the claim brought against Natwest in the present
proceedings in the statement of claim filed by Soverina, save that Soverina
purports to be acting not only in its own right, but also in a representative
capacity, inter alia, for the guarantors.
3.  The proposed amended statement of claim to be filed in the present
proceeding is seventy four pages in length and contains two hundred and fifty
three paragraphs.  A summary of it will, of necessity, be inadequate.
Nevertheless, to understand the competing submissions, it is necessary to
attempt a short analysis of the factual background alleged by the applicants.
It should of course be stressed that in what follows I am making no factual
findings, but merely repeating what are alleged in the statement of claim to
be the facts.
4.  One part of the story begins, it would seem, around 27 February 1987.  As
at that date, Soverina was the registered proprietor of certain land in
Brisbane on which was conducted a caravan park known as the Carina Caravan
Park Village. Natwest was the mortgagee of the caravan park.  The shares in
Soverina had been acquired by Fedora and Offida as trustee for Fedora.  Equity
Management Corporation Ltd ("EMC") was a public company.  It sought to
purchase the goodwill of the caravan park and obtain a ninety nine year lease
over the realty, for a total consideration of $3.1 million.  This was achieved
by Soverina leasing the caravan park to Fedora for twenty years, by an
assignment of that lease from Fedora to EMC, and thereafter by an agreement
between Soverina and EMC extending the term of the lease to a term of ninety
nine years. The rental under the ultimate ninety nine years lease was fixed as
being $900,000 per annum for the first twenty years, and thereafter increasing
in accordance with the prevailing inflation rate.
5.  On 22 February 1988, there was executed a document referred to as a
"Management Deed", the terms of which were in evidence before me.  The parties
to this document were Soverina, Fedora, Llantony Investments Pty Ltd
("Llantony"), EMC and Natwest.  After reciting the agreement of lease of the
caravan park from Soverina to Fedora and the assignment by Fedora to EMC,
there was then recited the grant and assignment by Soverina to Llantony of the
right to operate the caravan park during the currency of the lease.  There was
then witnessed the grant and assignment by Llantony, with the consent of
Soverina, to EMC of the right to operate the caravan park, the appointment by
EMC of Soverina as the manager of EMC for the caravan park, at a management
fee to be agreed upon between them but in no event exceeding $10,000 per
month.  Critical to the applicant's case in the present proceedings is cl.3
which relevantly provides as follows:
      "...in consideration of Natwest Bank consenting
      to the Lease and to the Assignment and to this
      Deed (as shall be evidenced by its execution
      hereof) Soverina and EMC jointly and severally
      HEREBY ACKNOWLEDGE AND AGREE:
      (a)   that the aforesaid consent to the Lease
            shall be without prejudice to the rights
            powers and remedies of Natwest Bank under
            the mortgage... which shall remain in full
            force and effect as if this Deed had not
            been executed by Natwest Bank except that
            so long as the covenants conditions and
            provisions of the Lease are fully observed
            and performed Natwest Bank will in the
            event of the exercise of the power of sale
            or other power or remedy of Natwest Bank
            as mortgagee on default under the
            Mortgage, exercise the same subject to the
            then subsisting rights of EMC as lessee
            under the Lease...
      (c)   that upon Natwest Bank giving notice to
            EMC as lessee of demanding to enter into
            receipt of the rents of the Caravan Park
            the covenants on the part of the lessee
            expressed or implied in the Lease shall be
            deemed to have been entered into by EMC
            with Natwest Bank and all the rights
            powers and remedies of the lessor under
            the Lease shall vest in and be exercisable
            by Natwest Bank until such notice be
            withdrawn or the Mortgage be discharged
            PROVIDED THAT if EMC shall commit default
            under the Lease then notwithstanding the
            provisions of the Lease in relation to
            default, Natwest Bank may at its sole and
            absolute discretion give EMC notice that
            the Lease shall be terminated at fourteen
            (14) days after the date of service of
            such notice and at the expiration of said
            period of fourteen (14) days the lease
            shall be and be deemed to be terminated."
6.  It is alleged, inter alia, by Soverina that the management deed effected a
variation of the Natwest mortgage by including therein an implied term which
is said to be that:
            "That the respondent (presumably Natwest) would
            exercise any of its rights powers and remedies
            under this mortgage subject to any subsisting
            rights of EMC under the lease between Soverina
            as lessor and EMC as lessee as at the date of
            exercise of such rights powers and remedies."
7.  Natwest formed the view that there was default as to payment of rent and
made demand for payment upon EMC on 21 November 1989.  The existence of a
default is denied by the applicant.  Ultimately, Natwest appointed a receiver
who went into possession of the caravan park.
8.  Going back in time, however, it is alleged that EMC was promoted in 1987.
The promoters were Mr Miller, Mr Rose and Mr Murphy (hereafter referred to as
"the promoters").  An extraordinary general meeting of the shareholders of EMC
was held on 15 January 1988.  As at that date the promoters were the sole
directors of EMC.  The statement of claim alleges that at that extraordinary
general meeting a number of misrepresentations were made, or alternatively
there was a failure at that meeting to disclose material facts.  Matters said
not to have been disclosed included the rental payable by EMC on the caravan
park and other financial matters.  It is further said that there was a failure
by the promoters to disclose their own interest in the transaction to those
who invested in EMC, or EMC itself.
9.  Legal proceedings were apparently commenced against Mr Miller by a number
of investors in relation to Mr Miller's breach of fiduciary duty.  These
proceedings, in the Supreme Court of Western Australia, were ultimately
settled. In August 1989 they were brought to the attention of Natwest who
thereupon, so it is alleged, became aware of the alleged breaches of fiduciary
duty.  It is claimed that thereafter and by demanding the interest owing to
it, which interest could only be paid out of the rent owing to Soverina,
Natwest became a party to the breach.  Alternatively, it is said that in so
doing, Natwest itself breached its own fiduciary duty to the applicant.
Alternatively, it is alleged that Natwest was in breach of its contractual
obligations under the management agreement and that it was unlawful for it to
demand the payment of interest from EMC.
10.  When the receiver took possession on 2 January 1990, EMC was conducting
business on the caravan sites.  There was money held by EMC as part of its
business in cash registers etc which was seized together with other chattels.
EMC made demand upon Natwest for return of the money and other chattels, but
to date the money and chattels have not been returned.
11.  In about February 1987 the shares in Soverina were transferred to Offida
and Fedora for a consideration of $1.4 million. It is alleged that to induce
Offida and Fedora to purchase the shares, Natwest represented that Soverina
was not insolvent and was in a financial position to continue to trade.
Likewise, it is alleged that to induce the guarantors to provide guarantees to
Natwest to secure debts owed to Natwest by Soverina, Natwest represented that
Soverina was not insolvent and was in a financial position to continue to
trade, whereas those representations were false or negligently made.
12.  These facts (there are other facts pleaded which affect parties other
than the respondents which are unnecessary to repeat), it is alleged, give
rise, inter alia, to the following causes of action.
1.    A claim against a Mr Bridston and a Mr Pollock, that they breached
      their fiduciary duty to the applicant in respect of a transaction
      involving Corewell (1981) Pty Ltd, unrelated to the events I have
      indicated.
2.    A claim against Mr Hall, Mr Stanmore, Mr Samuel, Mr Cox, Mr
      Greiner, Mr Horne and Mr Dear as directors of Natwest alleging
      that they had misappropriated property of EMC, and, alternatively,
      for restitution or conversion.
3.    Claim in damages for defamation brought by EMC against Messrs
      Bridston, Pollock and Bruges Pty Ltd, arising out of alleged
      warranties of correctness of balance sheets.
4.    A claim against Natwest for conversion by the receivers, and
      additionally in contract, for cancelling the lease and seizing
      possession of the money and chattels.
5.    A claim against Natwest for breach of fiduciary duty in "taking an
      improper advantage through its wrongful possession of the caravan
      park".
4.    A claim brought under s.52 of the Trade Practices Act against
      Natwest for misrepresenting that Soverina was solvent and thereby
      inducing Offida and Fedora to purchase all the shares in Soverina.
5.    A claim brought by the guarantors against Natwest under s.52,
      based upon the same misrepresentations alleged in 4. above,
      thereby inducing the guarantors to give the guarantees.
13.  The attempt to bring the somewhat disparate actions described in the
application and statement of claim as a single class action under the
provisions of Part IVA of the Federal Court of Australia Act 1976 ("the Act")
was, in my view, misconceived.  Indeed, there would be justification in the
argument that the application as filed involved on its face an abuse of the
process of the Court.
14.  It is a prerequisite of representative proceedings that the provisions of
s.33C (1) of the Act are complied with.  That sub-section provides:
      "Subject to this Part, where:
      (a)   7 or more persons have claims against the
            same person; and
      (b)   the claims of all those persons are in
            respect of, or arise out of, the same,
            similar or related circumstances; and
      (c)   the claims of all those persons give rise
            to a substantial common issue of law or
            fact;
      a proceeding may be commenced by one or more of
      those persons as representing some or all of
      them."
15.  What Soverina has purported to do here is to join together, under the
guise of a representative proceeding, proceedings by it and various diverse
others which arise out of factual circumstances related only in an historical
sense many of which involve discrete factual and legal issues.  The motivation
in so doing, particularly when the majority of the matters claimed were
already in the course of litigation in the Queensland proceedings, can but be
guessed at.
16.  By way of example, there is absolutely no connection between the
proceedings sought to be brought against Natwest for conversion of money and
goods, and proceedings sought to be brought by EMC in defamation against
Messrs Bridston, Pollock and Bruges Pty Limited.  Why either of these
proceedings should be a representative proceeding brought in the name of
Soverina is also somewhat difficult to say.
17.  But accepting, for the moment, that the present was a case where the
prerequisites of s.33C(1) were satisfied, I am of the view that it is in the
interests of justice that the present proceedings (save that part of the
proceedings sought to be brought on behalf of the investors in EMC) required
that the proceedings not continue under Part IVA, having regard to the cost
likely to be incurred, and to the fact that each of the represented parties
could simply be joined as a party to the present litigation.  This is
particularly so in respect of the claims which are the subject of the
Queensland proceedings.  Once the guarantors are parties to the present
proceedings, it becomes obvious that those claims (treated as separate
"proceedings") satisfy the criteria for transmission to the Supreme Court of
Queensland under the provisions of s.5(4) of the Jurisdiction of Courts
(Cross-Vesting) Act (Cth) 1987.  In particular, I find that they are:
      *     related to, and in fact are identical to the
            cross-claims brought in the Queensland proceedings; and
      *     that the interests of justice require that the
            relevant proceedings be determined in the Supreme
            Court of Queensland, having regard to the progress
            which has been made in the litigation in that State.
18.  Alternatively, I find in accordance with s.5(4)(b)(iii) that it was
otherwise in the interests of justice that those proceedings be determined in
the Supreme Court of Queensland.
19.  The solicitor for the applicants conceded that the claims of Corewell
(1981) Pty Limited, the beneficiaries of the Corewell Unit Trust and Deveban
are remote from the claims otherwise pleaded, and that each of those parties
should be joined as a party to the present proceedings, involving, so it is
alleged, publication of information that EMC was in liquidation.  I give leave
to the applicant to amend its application accordingly.
20.  Once the orders foreshadowed above are made, it becomes clear that the
only representative parties left are the investors. Without them there are not
the requisite number of seven parties to constitute a group action.
21.  The claim of the investors, so far as concerns Natwest (there are other
claims made on behalf of the investors which do not concern Natwest, and which
are not the subject of the present motions) is that the action of Natwest in
enforcing its security for interest after notice, constitutes a breach by
Natwest of a fiduciary duty owed by it to Natwest's shareholders, or
participation in the breach of duty by Mr Miller towards the EMC investors.
22.  It was submitted by senior counsel for Natwest, that the pleading
disclosed no cause of action against Natwest and accordingly that I should not
give leave to amend the statement of claim to permit that pleading to be
raised, when to do so would be futile.  It is accepted that the basis of such
a submission is the application of the well-known test in General Steel
Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 at 129-30.
I agree with these submissions.  Once it is conceded, as the pleadings do,
that neither Natwest's security, nor the management agreement, was infected by
any breach of duty by Natwest at the time each was entered into, the
enforcement of that security by the requirement of interest properly payable
could never amount to a breach of fiduciary duty by Natwest. Nor could
knowledge of Mr Miller's breach of duty ever preclude Natwest from enforcing
its own security properly entered into.  The cases of Catt v Marac Australia
Ltd (1987) 9 NSWLR 639 and Bank of New Zealand v Equiticorp Finance Ltd (1992)
9 ACSR 199, to which I was referred by the applicant, are not authorities to
the contrary.  Thus, in the former, the loans were made by the lender with the
knowledge that Mr Winter had received a secret commission.  The case was not
one where the loans when made were uninfected by the breach of fiduciary duty
by Mr Winter.
23.  Accordingly, I would not permit the applicant to amend its statement of
claim to add claims against Natwest by the investors. However, the applicant
may, should it be so advised, continue a representative action on behalf of
the investors against Brimley Pty Limited, Grandstand Holdings Pty Limited and
Wentina Pty Limited.  In so saying it should be emphasised that none of these
companies was represented before me on the motion and I have not considered
whether the pleadings disclose a cause of action against these companies by
the investors.
24.  Similarly, the directors were not parties to the proceedings before me.
I should say, however, that I can not see how a separate cause of action
arises against the directors for the conversion by the receiver, acting on
behalf of Natwest, of money and chattels.  The claim appears to me to border
upon the frivolous.  Nor is it pleaded that the persons named were directors
at the relevant time.  Indeed, there must be some doubt whether, in the case
of at least one of them, this was the case.  The applicant would be well
advised to consider amending the pleading, so far as it related to the case
against the directors.
25.  I have found the task of framing orders in the present proceedings
somewhat difficult, having regard to the multitude of actions which are
intertwined.  In doing so, I have had regard to the decision of Gummow J in
Poignand v NZI Securities Australia Limited (1992) 109 ALR 213, where his
Honour expressed the view that this Court was forbidden, by the opening words
of sub-sec.86A(2) of the Trade Practices Act 1974, from transferring a
representative proceeding based upon that Act to the Courts of a State, and in
any event that any discretion so to do should be exercised against so doing as
there was a real question as to the availability in State Courts of special
representative proceedings.  With respect I agree with his Honour's comments.
However, that does not mean that the Court might not, in the exercise of its
judicial discretion, remit to a State Court a matter which had commenced as a
representative proceeding in this Court, but where the Court had ordered that
the action not continue under Part IVA of the Act.
26.  I have regard also to the decision of Miles C.J. in Jackson v John
Fairfax and Sons Ltd (1988) 96 FLR 145, where it was held that a court to
which an application to cross-vest a matter to another court under the cross
vesting legislation had power to cross-vest a "proceeding".  As his Honour
said (at 152):
            "...the Act contemplates that out of the
            totality of proceedings in one court, there may
            be a transfer of a singular proceeding (or
            several singular proceedings) to another court."
27.  Thus, in that case, part of the action brought, as constituted by a claim
for damages and various paragraphs of a statement of claim, was transferred by
his Honour to another court.  The subsequent decision of Smart J in Blake v
Norris (1990) 20 NSWLR 300, that the word "proceeding" should be construed to
mean "cause of action" requires no different result in the present case.
28.  It follows that it is open to me, having determined that the tests in
s.5(4) of the Jurisdiction of Courts (Cross-Vesting) Act 1987 were satisfied,
to transfer discrete causes of action ("proceedings") to the Supreme Court of
Queensland, provided that those causes of action are not representative
proceedings brought under the Trade Practices Act 1974.  In my view, it is in
the interests of the parties and the administration of justice so to do in the
present case.  Despite the submissions of the solicitor for the applicant,
there is nothing in the decision of Gummow J in Poignand which as a matter of
law prevents me from taking this course.
29.  There is a practical difficulty, however, in ensuring that the pleadings
ultimately take on an intelligible form.  One alternative, suggested by draft
orders prepared by the respondent, would have the applicants, once joined in
their own right in the present proceedings, file a number of different
applications, one relating to the proceedings to be transferred to Queensland,
one or more relating to such representative proceedings as are to remain in
this Court, and one relating to the non-representative proceedings to remain
in this Court. That course, while having the virtue of final clarity, would
entail the applicants in additional court filing fees, and should, I think be
avoided if possible.  To this end I have decided to approach the matter
somewhat differently.
30.  In framing the orders, I have taken the course of first ensuring that the
proceedings so far as presently brought are not representative proceedings.  I
have then given leave to join those parties who clearly should be parties in
their own right, these including those entities or persons which or who are
parties to the Queensland proceedings.  After these amendments are made to the
application and the statement of claim, amended as sought by the applicants
(subject to disallowing the claim against the first respondent which has been
discussed above), the order to transfer to Queensland the proceedings which
involve issues common to those presently the subject of the Queensland
proceedings, or, as in the case of the proposed claim against the directors,
have a common substratum of fact, can then take effect.  Thereafter I envisage
that a new set of pleadings be then filed which would deal only with the
relief sought in so much of the matter as remains with this Court.
31.  Accordingly, I would make the following orders consistent with the
reasons which I have given:
      1.    That the proceedings to the extent that they
            purport to be brought under Part IVA of the
            Federal Court Act 1976 no longer continue under
            that Part.
      2.    That the applicant have leave to amend its
            application so as to join the following as
            applicants to the proceeding:
            (a) Equity Management Corporation Limited
            (b) Corewell (1981) Pty Ltd.
            (c) Deveban Pty Limited.
            (d) Offida Holdings Pty Ltd
            (e) Fedora Pty Ltd
            (f) Aphrodite Pty Ltd
            (g) Grendell Pty Ltd
            (h) Othello Pty Ltd
            (i) Michael Stanislaus Smith
      3.    That the applicants have leave to join the
            following as respondents to the proceedings:
            (a) Thomas Joseph Bridston
            (b) Murray Gordon Pollack
            (c) Bruges Pty Ltd (ACN 008 968 563)
            (d) Peter John HALL
            (e) Ian Frederick STANWELL
            (f) Graeme Julian SAMUEL
            (g) Alan Anthony COX
            (h) Nicholas Frank GREINER
            (i) Bernard Phillip HORN
            (j) Philip Whitney DEER
            (k) Brimley Pty Ltd (ACN 009 183 608)
            (l) Grandstand Holdings Pty Ltd (ACN 009 350 985)
            (m) Wentina Pty Ltd (ACN 009 054 577)
      4.    That the applicants file and serve within
            twenty-one days of the date hereof an amended
            application setting out the relief sought by
            such of the persons as shall be joined as
            parties against such of the Respondents as shall
            have been joined in the proceedings.
      5.    That the applicants have leave to amend the
            statement of claim in accordance with exhibit
            MSS4 to the affidavit of Michael Stanislaus
            Smith of 29 January 1993, save and except for
            paragraphs 133-156 (inclusive) and paragraphs
            164 and 165, such amended statement of claim to
            be filed and served 21 days from the date of
            this order.
      6.    That the proceedings against the first
            Respondent, Offida Holdings Pty Ltd, Fedora Pty
            Ltd, Aphrodite Pty Ltd, Grendell Pty Ltd,
            Othello Pty Ltd, Mr Michael Stanislaus Smith and
            such of the persons named in order 3 (d) to (j)
            inclusive as shall be joined be transferred to
            the Supreme Court of Queensland pursuant to
            s.5(4) of the Jurisdiction of Courts
            (Cross-Vesting) Act (Cth) 1987.
      7.    That order 6 be suspended for a period of 28
            days from the date hereof.
      8.    That Equity Management Corporation Ltd have
            leave to make a claim pursuant to s.33C of the
            Federal Court Act 1976 against all or some of
            Brimley Pty Ltd, Grandstand Holdings Pty Ltd and
            Wentina Pty Ltd on behalf of its shareholders.
      9.    That Corewell (1981) Pty Ltd have leave to make
            a claim pursuant to s.33C of the Federal Court
            Act 1976 against all or some of Thomas Joseph
            Bridston, Murray Gordon Pollack and Bruges Pty
            Ltd on behalf of the beneficiaries of the
            Corewell Unit Trust.
      10.   That subject to the operation of order 6, the
            claims referred to in orders 8 and 9 be joined
            in the present proceedings and that the
            applicants, after the expiration of 28 days from
            the date of this order and before the expiration
            of a further fourteen days, thereafter file and
            serve upon the respondents to the proceedings
            remaining in this Court an amended application
            and amended statement of claim reflecting the
            orders sought and the claims made by all
            applicants in the proceedings.
32.  Subject to these orders, I would dismiss both motions before me.  As the
respondent in the proceedings has been largely successful, it seems to me to
be appropriate that the applicant pay the respondent's costs of the two
motions.  I would stand the matter over to a date to be fixed for further
directions, with liberty to either party to restore the matter to the list on
four clear days written notice to the other.