Bright v Femcare - [1999] FCA 1377

FEDERAL COURT OF AUSTRALIA
Bright v Femcare Ltd [1999] FCA 1377
CONSTITUTIONAL LAW – representative proceedings – validity of Federal Court of Australia Act 1976 (Cth) Pt IVA – exercise of judicial power – whether Pt IVA empowers Court to determine proceedings relating to subject matter other than “matters” – whether Pt IVA requires or permits Court to determine representative proceedings in ways which are incompatible with proper judicial process – acquisition of property on just terms – whether provisions of Pt IVA involve an acquisition of property
WORDS AND PHRASES – “matter” – “judicial power” – “acquisition of property”
The Constitution (62 & 63 Vict. c. 12) Ch III, ss 51(xxxi), 75, 76, 77
Federal Court of Australia Act 1976 (Cth) Pt IVA, ss 33C, 33E, 33H, 33J, 33N, 33Q, 33R, 33S, 33T, 33V, 33W, 33X, 33Y, 33Z, 33ZB
Federal Court Rules O 6 r 13, O 7 r 9
South Australia v Victoria (1911) 12 CLR 667 cited
Philip Morris Inc v Adam P Brown Male Fashions Pty Ltd (1981) 148 CLR 457 cited
Bass v Permanent Trustee Co Ltd (1999) 161 ALR 399 cited
Fencott v Muller (1983) 152 CLR 570 referred to
Harris v Caladine (1991) 172 CLR 84) cited
Re Judiciary and Navigation Acts (1921) 29 CLR 257 applied
Wong v Silkfield Pty Ltd [1999] HCA 48 referred to
Qantas Airways Ltd v Cameron (1996) 66 FCR 246 cited
Wilson v Minister for Aboriginal and Torres Strait Islander Affairs (1996) 189 CLR 1 discussed
Grollo v Palmer (1995) 184 CLR 348 cited
Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51 cited
Re Nolan; ex parte Young (1991) 172 CLR 460 cited
John v Rees [1970] 1 Ch 345 referred to
Carnie v Esanda Finance Corporation Ltd (1995) 182 CLR 398 referred to
Shepherd v Australia and New Zealand Banking Group Ltd (1996) 20 ACSR 81 cited
Hansberry v Lee 311 US 32 (1940) referred to
Mullane v Central Hanover Bank & Trust Co 339 US 306 (1950) referred to
Eisen v Carlisle 417 US 156 (1974) referred to
Phillips Petroleum Co v Shutts 472 US 797 (1985) referred to
Ortiz v Fibreboard Corporation 527 US 1 (1999) referred to
Georgiadis v Australian and Overseas Telecommunications Corporation (1994) 179 CLR 297 cited
South Australia v Commonwealth (1992) 174 CLR 235 referred to
KERRIE BRIGHT v FEMCARE LIMITED AND ENDOVASIVE PTY LIMITED
N 410 OF 1999
LEHANE J
6 OCTOBER 1999
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

N 410 OF 1999

BETWEEN:

KERRIE BRIGHT
Applicant

AND:

FEMCARE LIMITED
First Respondent

ENDOVASIVE PTY LIMITED
(ACN 061 512 132)
Second Respondent

JUDGE:

LEHANE J

DATE OF ORDER:

6 OCTOBER 1999

WHERE MADE:

SYDNEY

THE COURT:
1. Declines to make the declarations sought by the first respondent in prayers 1 and 2 of its notice of motion filed on 8 September 1999.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN…

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: [1999] FCA 1377
Decision Date: 6 OCTOBER 1999

CaseChat Overview and Summary

In the case of Bright v Femcare, the plaintiff challenged the constitutional validity of certain provisions of the Federal Court of Australia Act 1976 (Cth), specifically sections 33J and 33ZB, which pertain to representative proceedings. The central dispute revolved around whether these sections allowed for the acquisition of a chose in action under section 51(xxxi) of the Australian Constitution, which grants the Commonwealth the power to make laws with respect to property of any kind. The matter was heard and determined in the High Court of Australia.

The key legal issues before the court were whether the provisions in question constituted a law with respect to the acquisition of property under section 51(xxxi) and, if so, whether such a law was valid given the restrictions imposed by the Constitution. The plaintiff argued that the representative party, in enforcing the claims of group members, effectively acquired a chose in action, which would then fall under the Commonwealth's constitutional power to make laws with respect to property. Conversely, the defendants contended that the representative party did not acquire any proprietary interest in the claims of the group members, and thus, the challenged provisions were constitutional.

The High Court, in its reasoning, held that the provisions in question did not result in the acquisition of a proprietary interest by the representative party. The court found that while a tax on the use or possession of property might, in certain circumstances, amount to a tax on the ownership of property, this did not extend to a situation where a representative party enforces claims on behalf of group members under Pt IVA. The court emphasised that the representative party was given an exclusive authority to enforce claims, not to acquire any right of property in the chose in action. Consequently, the court concluded that section 51(xxxi) did not apply to the provisions in question, and therefore, the representative proceedings were constitutional.

In conclusion, the High Court found that Pt IVA of the Act, including sections 33J and 33ZB, were valid and did not contravene section 51(xxxi) of the Constitution. The court rejected the plaintiff's request for declarations that the provisions were invalid, affirming their constitutionality.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

LEHANE J

But if in some circumstances (South Australia v Commonwealth at 249) a tax on the use or possession of property may be a tax on the ownership of the property, it does not follow in my view that a chose in action is, in the circumstances contemplated, “acquired” by the operation of Pt IVA. The representative party is given an authority, which in important respects is exclusive, to enforce, subject to the supervision of the Court and to the exercise of its powers under Pt IVA, the claims of the group members. The enforcement is “on behalf of”, and for the benefit of, the group members. The representative party does not, in my view, by that process acquire any right of property in the chose in action. Thus, in my view, s 51(xxxi) is inapplicable.Conclusion For those reasons, in my opinion Pt IVA of the Act, and particularly s 33J and s 33ZB, are valid. Accordingly, I refuse the declarations sought.

Ratio Decidendi

Legal Principle Established

Established by: LEHANE J

Full text does not contain this section.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 410 OF 1999

BETWEEN:	KERRIE BRIGHT Applicant
AND:	FEMCARE LIMITED First Respondent ENDOVASIVE PTY LIMITED (ACN 061 512 132) Second Respondent
JUDGE:	LEHANE J
DATE OF ORDER:	6 OCTOBER 1999
WHERE MADE:	SYDNEY