Bowler, Bruce William v Hilda Pty Ltd

[1996] FCA 1051

IN THE FEDERAL COURT OF AUSTRALIA )
AUSTRALIAN CAPITAL TERRITORY      )    No ACT G13 of 1995
DISTRICT REGISTRY                )   
GENERAL DIVISION                 )

BETWEEN:BRUCE WILLIAM BOWLER and JANELLE JOY BOWLER

Applicants

AND:HILDA PTY LIMITED

ACN 008 556 616

First Respondent

LEADER REAL ESTATE PTY LIMITED

ACN 059 881 597

Second Respondent

LEADER HOLDINGS PTY LIMITED

ACN 008 567 726

Third Respondent

JOHN FREDERICK MCDONALD

Fourth Respondent

JENNIFER MCDONALD

Fifth Respondent

DEREK WHITCOMBE

Sixth Respondent

REGENCY APARTMENTS PTY LIMITED

ACN 061 914 029

Seventh Respondent

COURT:FINN J

PLACE:CANBERRA

DATE:        19 NOVEMBER 1996

MINUTES OF ORDERS

THE COURT ORDERS THAT:

1. Pursuant to s33N(1) of the Federal Court of Australia Act, the proceeding not continue as a representative proceeding under Part IVA of the Act;

1. The proceeding ACT G13 of 1995 now being brought by Bruce William Bowler and Janelle Joy Bowler solely in their own right, the proceeding be dismissed;  and

1. Bruce William Bowler and Janelle Joy Bowler pay the costs of the respondents of and incidental to this proceeding.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA )
AUSTRALIAN CAPITAL TERRITORY      )    No ACT G13 of 1995
DISTRICT REGISTRY                )   
GENERAL DIVISION                 )

BETWEEN:BRUCE WILLIAM BOWLER and JANELLE JOY BOWLER

Applicants

AND:HILDA PTY LIMITED

ACN 008 556 616

First Respondent

LEADER REAL ESTATE PTY LIMITED

ACN 059 881 597

Second Respondent

LEADER HOLDINGS PTY LIMITED

ACN 008 567 726

Third Respondent

JOHN FREDERICK MCDONALD

Fourth Respondent

JENNIFER MCDONALD

Fifth Respondent

DEREK WHITCOMBE

Sixth Respondent

REGENCY APARTMENTS PTY LIMITED

ACN 061 914 029

Seventh Respondent

COURT:FINN J

PLACE:CANBERRA

DATE:        19 NOVEMBER 1996

EX TEMPORE REASONS FOR ORDERS

On 25 October when I delivered my reasons for judgment in this matter, no final judgment or final order was made.  The only orders made related to setting in train a process whereby final orders would be made.

Order 2 that I made on that day required the parties by 11 November either to provide an agreed minute of orders, or if agreement was not by then reached, the respective minutes of the orders for which the parties contended and brief outlines of the submissions made in favour of those minutes.

Such compliance with that order as there has been has been either or both hesitant and tardy. In the event, though, there is now agreement between the parties as to the principal issue which was concerning me when, in my reasons, I drew attention to the provisions of s33ZB of the Federal Court of Australia Act 1976 (Cth), and to the judgment of French J in Zhang v Minister for Immigration (1993) 45 FCR 384.

It was my apprehension that, if the representative proceedings stayed on foot, any finding or order I made, or, for that matter, the nature of the issues raised in these proceedings could have unanticipated prejudicial effects upon other group members.  Given that I made no finding on what ultimately was identified to be the common issue in these proceedings, it seemed to me wholly inappropriate that such effects might flow from a judgment given in the representative proceedings.

In the event the parties all have proposed that I should order under s33N of the Federal Court of Australia Act that the proceeding should no longer continue under Part IVA of the Act.

Given that at the moment I am not satisfied that the common issue identified for the purposes of this application will necessarily arise in relation to any other of the group members, I am satisfied that the representative proceeding as presently framed will not provide an efficient and effective means of dealing with the claims of the other group members.

Accordingly my first order will be that:

(1)Pursuant to s33N(1) of the Federal Court of Australia Act, the proceeding not continue as a representative proceeding under Part IVA of the Act.

The making of this order will make it unnecessary to make an order under s33ZB of the Act as the remaining orders to be made will be made only in the application brought by Mr and Mrs Bowler.

In relation to that application, and bearing in mind that no special rules as to the incidence of costs apply to a proceeding that has been conducted as a representative one:  cf Woodlands v Permanent Trustee Co Ltd, Federal Court of Australia, 27 July 1995, Wilcox J, the remaining orders will be that:

(2)the proceeding ACT G13 of 1995 now being brought by Bruce William Bowler and Janelle Joy Bowler solely in their own right, the proceeding be dismissed;  and

(3)Bruce William Bowler and Janelle Joy Bowler pay the costs of the respondents of and incidental to this proceeding.

I certify that this and the preceding 3 pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Finn.

Associate

Dated:  28 November 1996

Counsel for the applicant    :    R J Arthur

Solicitors for the applicant :    Bernard Colleary & Associates

Solicitors for the first,
fourth and fifth respondents :    Clayton Utz

Solicitors for the second,

third and sixth respondents  :    Abbott Tout Harper Blain

Date of hearing                  :    19 November 1996

Date of judgment            :    19 November 1996