FEDERAL COURT OF AUSTRALIA
Abbott v Zoetis Australia Pty Ltd (No 2) [2019] FCA 462
File number: NSD 406 of 2018 Judge: LEE J Date of judgment: 4 April 2019 Catchwords: REPRESENTATIVE PROCEEDINGS – security for costs in open unfunded class action – principled approach to such applications and the central importance of context including the nature of the litigation – relevance of the characteristics of the group members, including the likelihood of them being willing to provide security – position of group members being entitled to take a passive role in litigation prior to common issues being determined – intrusive and expensive process proposed for interrogating group members prior to any opt-out – although power exists to award security an order should not be made in the exercise of discretion notwithstanding the consideration of prejudice to the respondent
Legislation:
Evidence Act 1995 (Cth) ss 43(1A), 140, 144
Federal Court of Australia Act 1976 (Cth) Pt IVA, ss 33E, 33J, 33ZB
Federal Court Rules 2011 (Cth)
Cases cited:
Acohs Pty Ltd v Ucorp Pty Ltd [2006] FCA 1279; (2006) 155 FCR 181
Australian Securities and Investments Commission v Richards [2013] FCAFC 89
Bell Wholesale Co Ltd v Gates Export Corporation (1984) 2 FCR 1
Bray v F Hoffman-La Roche Ltd [2002] FCA 1405; (2003) ATPR 41-906
Bray v F Hoffmann-La Roche Ltd [2003] FCAFC 153; (2003) 130 FCR 317
Capic v Ford Motor Company (No 2) [2016] FCA 1178
Gill v Ethicon Sàrl (No 2) [2019] FCA 177
Kelly v Willmott Forests Ltd (in liq) [2012] FCA 1446; (2012) 300 ALR 675
Madgwick v Kelly [2013] FCAFC 61; (2013) 212 FCR 1
Merribee Pastoral Industries Pty Limited v Australia and New Zealand Banking Group Limited [1998] HCA 41; (1998) 193 CLR 502
De Jong v Carnival PLC [2016] NSWSC 347
Morris v Hanley [2000] NSWSC 957
Regent Holdings Pty Ltd v State of Victoria [2012] VSCA 221; (2012) 36 VR 424
Southern Cross Exploration NL v Fire & All Risks Insurance Co Ltd (1985) 1 NSWLR 114
Australian Law Reform Commission, Grouped Proceedings in the Federal Court, Report 46 (Australian Government Publishing Service, 1998)
Commonwealth Hansard, Parliamentary Debates, House of Representatives, 26 November 1991, 3299
V Morabito and N Hatcher, Security for costs in unfunded federal class actions: back to the future (2018) 92 ALJ 105
Date of hearing: 14 March 2019 Date of last submissions: 20 March 2019 Registry: New South Wales Division: General Division National Practice Area: Commercial and Corporations Sub-area: Regulator and Consumer Protection Category: Catchwords Number of paragraphs: 51 Counsel for the Applicant: Mr C Barry QC with Mr J Rowe Solicitor for the Applicant: LHD Lawyers Counsel for the Respondent: Mr L Gyles SC with Mr S Fitzpatrick Solicitor for the Respondent: Piper Alderman ORDERS
NSD 406 of 2018 BETWEEN: RACHAEL ABBOTT
Applicant
AND: ZOETIS AUSTRALIA PTY LTD
Respondent
JUDGE:
LEE J
DATE OF ORDER:
4 APRIL 2019
THE COURT ORDERS THAT:
1.The respondent’s interlocutory application…
Keep reading for free
Create a free CaseChat account to read Abbott v Zoetis Australia Pty Ltd (No 2) and more:
- Read every judgment in full
- Ask AI and get answers linked to paragraphs
- See how each paragraph was cited in later cases
- Download judgments as PDF or Word
One click creates your free account or signs you in.
By continuing you agree to the Terms and Privacy Policy.
- Case
- [2019] FCA 462
- Decision Date
CaseChat Overview and Summary
The legal issues before the court involved the appropriate approach to be taken in determining whether security for costs should be granted in an open unfunded class action. The court had to consider the principles governing such applications, with a focus on the unique context of the litigation, including the nature of the class members and their likelihood of being willing to provide security. Additionally, the court needed to address the potential impact of the proposed process on the group members, who were entitled to take a passive role in the litigation until common issues were determined.
In delivering the judgment, the court emphasised the importance of a principled approach to such applications, highlighting that the characteristics of the group members and the intrusive nature of the proposed process were critical factors. The court noted that while it had the power to award security, the exercise of discretion should not lead to an order being made given the circumstances. The court considered that the proposed process was likely to be expensive and intrusive, potentially leading to the conclusion that the group members collectively had sufficient unencumbered assets. Consequently, the court dismissed the respondent's interlocutory application for security for costs.
The final orders of the court were that the respondent's application for security for costs be dismissed and that any application for costs in relation to the interlocutory application would be determined at the next case management hearing, where other issues such as finalisation of pleadings and the future progress of the proceeding would also be addressed.
Orders
Orders of the court
1. The respondent’s interlocutory application for security for costs be dismissed.
2. If an order for costs is sought in relation to the interlocutory application, then such an application is to be argued and determined at the next case management hearing.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.