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Bray v F Hoffman-La Roche Ltd

Bray v F Hoffman-La Roche Ltd

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FEDERAL COURT OF AUSTRALIA
Bray v F. Hoffman-La Roche Ltd [2003] FCA 1505
COURTS – PRACTICE AND PROCEDURE – representative proceedings – application for leave to amend application and statement of claim to confine the claims being pursued to a limited category of group members – whether the amendment constitutes a discontinuance of the representative proceeding for the purposes of s 33V of the Federal Court Act 1976 (Cth) – whether leave of the Court is required under s 33K for the alteration of the description of group members – whether a case for the approval and leave sought has been made out
Federal Court of Australia Act 1976 (Cth) ss 33A, 33C, 33K, 33X(1)(a) and 33ZE
Acts Interpretation Act 1901 (Cth) s 13(3)
Federal Court Rules Ords 6 and 13
Bray v F Hoffman-La Roche Ltd (2002) 118 FCR 1 - cited
Bray v F Hoffman-La Roche Ltd (2003) 200 ALR 607 – cited
Advanced Switching Services Pty Limited v State Bank of New South Wales T/as Colonial State Bank (2001) 23 ATPR 41-848 – cited
King v AG Australia Holdings Ltd (2002) 121 FCR 480 – cited
Williams v FAI Home Security Pty Ltd (No 4) (2001) 180 ALR 459 – cited
Community & Public Sector Union v Crown in Right of Victoria (1999) 90 IR 4 – cited
McMullin v ICI Australia Operations Pty Ltd (1996) 69 FCR 473 – cited
Australian Competition and Consumer Commission v Chats House Investments Pty Limited (1996) 71 FCR 250 – considered
Courtney v Medtel Pty Ltd (2002) 122 FCR 168 - considered
Visy Board Pty Ltd v Attorney-General (Cth) (1984) 2 FCR 113 – cited
Lower v Comcare (2002) 124 FCR 498 - cited
BRAY v F. HOFFMAN-LA ROCHE LTD AND OTHERS
VG 359 OF 1999
MERKEL J
19 DECEMBER 2003
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

VG 359 OF 1999

BETWEEN:

TRUDY BRAY
APPLICANT

AND:

F. HOFFMAN-LA ROCHE LTD
FIRST RESPONDENT

ROCHE PRODUCTS PTY LTD
(ACN 000 132 865)
SECOND RESPONDENT

ROCHE VITAMINS AUSTRALIA PTY LTD
(ACN 000 991 793)
THIRD RESPONDENT

ROCHE VITAMINS ASIA PACIFIC PTY LTD
FOURTH RESPONDENT

AVENTIS SA
SIXTH RESPONDENT

AVENTIS ANIMAL NUTRITION PTY LTD
(ACN 009 718 245)
SEVENTH RESPONDENT

AVENTIS ANIMAL NUTRITION SA
EIGHTH RESPONDENT

AVENTIS ANIMAL NUTRITION ASIA PACIFIC PTY LTD
NINTH RESPONDENT

BASF AKTIENGESELLSCHAFT
TENTH RESPONDENT

BASF AUSTRALIA LTD
(ACN 008 437 867)
ELEVENTH RESPONDENT

BASF EAST ASIA REGIONAL HEADQUARTERS LTD
THIRTEENTH RESPONDENT

JUDGE:

MERKEL J

DATE OF ORDER:

19 DECEMBER 2003

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:
1.Leave be granted for Agribusiness Products Pty Ltd (ACN 008 052 373), Lienert Australia Pty Ltd (ACN 008 293 007) and Brisbane Export Corporation Pty Ltd (ACN 010 345 150) to be substituted for the applicant, Ms Bray, as the representative applicants in this proceeding.
2.The new representative applicants be granted leave to file and serve a further amended application and a further amended statement of claim on or before 24 December 2003.
3.Insofar as there has…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2003] FCA 1505
Decision Date: 19 DECEMBER 2003

CaseChat Overview and Summary

The case before the court involved an application for leave to amend an application and a statement of claim in a representative proceeding. The original applicant, Ms Bray, sought to be substituted by three new applicants: Agribusiness Products Pty Ltd, Lienert Australia Pty Ltd, and Brisbane Export Corporation Pty Ltd. The application also sought approval for the discontinuance of the representative proceeding due to amendments to the application and the statement of claim. The respondents, F Hoffman-La Roche Ltd and others, were involved in the proceeding.

The legal issues before the court included whether the court should grant leave for the substitution of the applicant and the discontinuance of the representative proceeding. The court also needed to determine whether the new applicants should be granted leave to file and serve a further amended application and statement of claim. Another issue was whether the memorandum, being Exhibit "BMM-6" to the affidavit of Bernard Michael Murphy sworn on 1 December 2003, should be retained in the court file in a sealed envelope and not be available for inspection without leave of a judge of the court. The court had to consider the costs of the application, including reserved costs and costs thrown away by reason of the further amendment of the application and the statement of claim.

The court granted leave for the substitution of the applicant and the discontinuance of the representative proceeding. The new applicants were granted leave to file and serve a further amended application and a further amended statement of claim on or before 24 December 2003. The memorandum was retained in the court file in a sealed envelope and not be available for inspection without leave of a judge of the court. The applicant was ordered to pay the respondents' costs of the application, including reserved costs as well as costs thrown away by reason of the further amendment of the application and the statement of claim. The time by which any respondent, which had not filed and served an appearance, was to file and serve an appearance, was extended to 22 December 2003. All conditional appearances that had been filed and served were to become unconditional.

The court's decision provided clarity on the issues of substitution of the applicant, discontinuance of the representative proceeding, and the retention of the memorandum in the court file. The orders granted leave for the new applicants to be substituted for the original applicant and to file and serve a further amended application and statement of claim. The court's decision also provided guidance on the costs of the application, including reserved costs and costs thrown away by reason of the further amendment of the application and the statement of claim.

Orders

Orders of the court

1. Leave be granted for Agribusiness Products Pty Ltd (ACN 008 052 373), Lienert Australia Pty Ltd (ACN 008 293 007) and Brisbane Export Corporation Pty Ltd (ACN 010 345 150) to be substituted for the applicant, Ms Bray, as the representative applicants in this proceeding.

2. The new representative applicants be granted leave to file and serve a further amended application and a further amended statement of claim on or before 24 December 2003.

3. Insofar as there has been a discontinuance of the representative proceeding by reason of the amendments to the application and the statement of claim approval for that discontinuance is granted.

4. All conditional appearances that have been filed and served are to become unconditional.

5. The time by which any respondent, which has not filed and served an appearance is to file and serve an appearance, be extended to 22 December 2003.

6. The Memorandum, being Exhibit “BMM-6” to the affidavit of Bernard Michael Murphy sworn on 1 Deember 2003, be retained in the Court file in a sealed envelope and not be available for inspection without leave of a Judge of the Court.

7. The applicant pay the respondents’ costs of this application, including reserved costs as well as costs thrown away by reason of the further amendment of the application and the statement of claim (which costs include the consideration of all previous versions of the fourth amended application and the fourth amended statement of claim).

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

MERKEL J

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Established by: MERKEL J

Full text does not contain this section.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VG 359 OF 1999

BETWEEN:	TRUDY BRAY APPLICANT
AND:	F. HOFFMAN-LA ROCHE LTD FIRST RESPONDENT ROCHE PRODUCTS PTY LTD (ACN 000 132 865) SECOND RESPONDENT ROCHE VITAMINS AUSTRALIA PTY LTD (ACN 000 991 793) THIRD RESPONDENT ROCHE VITAMINS ASIA PACIFIC PTY LTD FOURTH RESPONDENT AVENTIS SA SIXTH RESPONDENT AVENTIS ANIMAL NUTRITION PTY LTD (ACN 009 718 245) SEVENTH RESPONDENT AVENTIS ANIMAL NUTRITION SA EIGHTH RESPONDENT AVENTIS ANIMAL NUTRITION ASIA PACIFIC PTY LTD NINTH RESPONDENT BASF AKTIENGESELLSCHAFT TENTH RESPONDENT BASF AUSTRALIA LTD (ACN 008 437 867) ELEVENTH RESPONDENT BASF EAST ASIA REGIONAL HEADQUARTERS LTD THIRTEENTH RESPONDENT
JUDGE:	MERKEL J
DATE OF ORDER:	19 DECEMBER 2003
WHERE MADE:	MELBOURNE