Bray v F Hoffman-La Roche Ltd - [2002] FCA 1405

FEDERAL COURT OF AUSTRALIA
Bray v F Hoffman-La Roche Ltd [2002] FCA 1405
PRACTICE AND PROCEDURE – representative proceeding – numerous group members – whether pleading deficient – whether leave to amend should be granted – whether group members have claims against all respondents – whether threshold requirements of ss 33C(1) and 33H(1) of the Federal Court of Australia Act 1976 (Cth) have been satisfied – whether proceeding should continue as a representative proceeding – whether security for costs should be ordered against representative party
Federal Court of Australia Act 1976 (Cth) ss 21, 33C(1), 33H(1), 33M, 33N, 33Z(1)(f) and 56
Trade Practices Act 1974 (Cth) ss 45, 45A, 75B, 80, 87(1) and 163A
Femcare Ltd v Bright (2000) 100 FCR 331 – considered
Phillip Morris (Australia) Ltd v Nixon (2000) 170 ALR 487 - applied
Sammy Russo Supplies Pty Ltd v Australian Safeway Stores Pty Ltd (1998) 20 ATPR 41-641 - cited
Kernel Holdings Pty Ltd v Rothmans of Pall Mall Australia Pty Ltd (Unreported, Federal Court of Australia, French J, 3 September 1991) - applied
King v GIO Australia (2000) 100 FCR 209 - cited
Truth About Motorways Pty Ltd v Macquarie Infrastructure Investment Management Ltd (2000) 200 CLR 591 - cited
ICI Australia Operations Pty Ltd v Trade Practices Commission (1992) 38 FCR 248 - considered
King v GIO Australia Holdings Ltd [2000] FCA 1543 - cited
Wong v Silkfield Pty Ltd (1999) 199 CLR 255 - cited
Bright v Femcare Limited [2002] FCAFC 243 - considered
Woodhouse v McPhee (1997) 80 FCR 529 - applied
Ryan v Great Lakes Council (1998) 154 ALR 584 – cited
Ryan v Great Lakes Council (1998) 155 ALR 447 – cited
Tobacco Control Coalition Inc v Phillip Morris (Australia) Ltd [2000] FCA 1004 – cited
Nendy Enterprises Pty Ltd v New Holland Australia Pty Ltd [2001] FCA 582 – cited
Nendy Enterprises Pty Ltd v New Holland Pty Ltd [2002] FCA 550 – cited
Associate Professor Vince Morabito, ‘Class Actions against Multiple Respondents’ (2002) Vol 30 No 2 Federal Law Review 295
TRUDY BRAY v F. HOFFMAN-LA ROCHE LTD AND OTHERS
VG 359 OF 1999
MERKEL J
15 NOVEMBER 2002
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 SOUTH EAST ASIA PTY LTD~~
~~TWELFTH RESPONDENT~~

BASF EAST ASIA REGIONAL HEADQUARTERS LIMITED
THIRTEENTH RESPONDENT

JUDGE:

MERKEL J

DATE OF ORDER:

15 NOVEMBER 2002

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:
1.The Third Amended Statement of Claim be struck out.

2.Otherwise,…

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: [2002] FCA 1405
Decision Date: 15 NOVEMBER 2002

CaseChat Overview and Summary

In the case of Bray v F Hoffman-La Roche Ltd, the primary dispute involved the validity and continuation of a representative proceeding initiated by AAN Australia against various Australian subsidiaries of F Hoffman-La Roche Ltd. The Federal Court was tasked with determining the legitimacy of the representative action under Part IVA of the Federal Court Act and whether the proceedings could continue as such.

The legal issues central to the decision involved the interpretation and application of sections 33C(1), 33H(1), 33M, and 33N of the Federal Court Act, particularly in relation to the definition of group members and the procedural requirements for representative proceedings. The Australian subsidiaries argued that the proceedings should be stayed or dismissed due to deficiencies in the pleadings and the definition of group members. They contended that these deficiencies rendered the representative action impracticable and potentially unjust.

The court, after considering the arguments and the broader objectives of Part IVA, ruled that while there were deficiencies in the pleadings and the definition of group members, the overall intent and rationale of the representative action were valid. The court emphasised that the representative action was necessary to provide practical redress to the group members who shared a common grievance regarding the cartel arrangements. The court dismissed the motions of the Australian subsidiaries and allowed AAN Australia to amend its application and statement of claim, ensuring that the proceedings could continue as a representative action. The court also made orders regarding the costs associated with the motions and the application for security for costs.

Orders

Orders of the court

1. The Third Amended Statement of Claim be struck out.

2. Otherwise, the motions of the second, third and seventh respondents dated 26 July 2002 and 25 July 2002 respectively, and the amended motion of the eleventh respondent dated 21 October 2002, be dismissed.

3. The applicant have leave to amend the application and to deliver a further amended statement of claim on or before 13 December 2002.

4. Adjourn the directions hearing to 9.30 am on 7 February 2003.

5. The applicant pay the costs of any respondent which are rendered abortive by reason of the striking out of the Third Amended Statement of Claim.

6. The seventh respondent pay the applicant’s costs of and incidental to its application for security for costs but otherwise the costs of the applicant and of the second, third, seventh and eleventh respondents of and incidental to the motions be costs of those parties in the cause.

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

Accordingly, I decline to accede to the application of AAN Australia for an order of security for costs.Conclusion For the above reasons the challenge by the Australian subsidiaries to the proceeding continuing as representative proceeding has failed. While deficiencies in the applicant’s pleadings justified aspects of that challenge, in substance, the contentions of the subsidiaries were largely based on a rigid and unrealistic application of ss 33C(1), 33H(1), 33M and 33N of the FCA. In that context it is apt to refer to the observations of the Full Court in Femcare at [75]:“It is hard to see why the requirements of the judicial process are to be interpreted so rigidly as to produce the consequence, as in Eisen v Carlisle, that the representative action is simply rendered impracticable in the very case in which it is needed. The rationale underlying the judicial process doctrine is the need to avoid bringing the administration of justice into disrepute or the infliction of injustice on individuals. Part IVA of the Federal Court Act aims to enhance access to justice by establishing procedures that enable legitimate common grievances to be remedied. These procedures provide advantages to group members whose claims would otherwise be without practical redress. …” In my view the group members have a legitimate common grievance in relation to the cartel arrangements and Pt IVA affords to them procedures to remedy that grievance. If the group members were unable to access Pt IVA their grievances would be without practical redress. The orders that are appropriate are:·the statement of claim be struck out;·the applicant have leave to file and deliver an amended application and a further amended statement of claim;·otherwise the motions of the Australian subsidiaries to be dismissed. Although the applicant has succeeded in having the motions of the Australian subsidiaries for the stay or dismissal of the proceeding dismissed she has been unsuccessful in defending her application and her third statement of claim. In particular she has been required to redefine the group members. Indeed, the defects in the definition of group members and in the pleading are, in part, a reason why the Australian subsidiaries were able to mount their challenge to the proceedings continuing as a representative proceeding. In the circumstances, I have decided that the appropriate order is that the costs of the applicant and of the Australian subsidiaries in relation to those motions be their costs in the cause. AAN Australia is to pay the applicant’s costs of and incidental to the application for security for costs.

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 SOUTH EAST ASIA PTY LTD~~ ~~TWELFTH RESPONDENT~~ BASF EAST ASIA REGIONAL HEADQUARTERS LIMITED THIRTEENTH RESPONDENT
JUDGE:	MERKEL J
DATE OF ORDER:	15 NOVEMBER 2002
WHERE MADE:	MELBOURNE