Connell v Nevada Financial Group Pty Ltd - [1996] FCA 801

CATCHWORDS

REPRESENTATIVE PROCEEDINGS - whether it was open to the applicants to commence proceedings for relief under the Trade Practices Act arising out of representations by the respondents in relation to various distributorship agreements with the applicants and others as a representative proceeding under Part IVA the Federal Court of Australia Act 1976 (Cth) - whether the requirements of s 33C of that Act satisfied.

REPRESENTATIVE PROCEEDINGS - whether the claims of all group members give rise to a “substantial common issue of law or fact” as required by s 33C(1)(c) - having regard to the object of Part IVA to enable groups of people to obtain redress more cheaply and efficiently and to encourage efficient use of legal and court resources, necessity to consider nature of non-common issues as well as common issues - if litigation of non-common issues will have real impact on nature and extent of preparation for and conduct of trial, common issue will not be a “substantial common issue”.

PLEADING - representative proceedings - if alleged oral or written representations made in differing words and on different occasions, necessary to plead terms of alleged representations made to various class members precisely to show that the substance and effect of the representations made to each group member is the same.

Federal Court of Australia Act 1976 (Cth) - ss 33C, 33H, 33N, Part IVA

Cases Considered
Kinna v National Australia Bank Ltd (1988) ATPR 40-878
Marks v GIO Australia Holdings Ltd (1996) ATPR 41-471
Palser v Grinling [1948] AC 291
R v Monopolies & Mergers Commission; Ex parte South Yorkshire Transport Ltd [1993] 1 WLR 23
Tillmanns Butcheries Pty Ltd v Australasian Meat Industry Employees Union (1979) 42 FLR 331
Tropical Shine Holdings Pty Limited v Lake Gesture Pty Limited (1993) 45 FCR 457
Zhang v Minister for Immigration, Local Government and Ethnic Affairs (1993) 45 FCR 384

BRIAN CONNELL and LILLIAN CONNELL, STUART VAN ECK and MARLENE VAN ECK, ANDREW BOUCAUT and ANNE BOUCAUT v NEVADA FINANCIAL GROUP PTY LTD & ORS
QG 135 OF 1995

DRUMMOND J
BRISBANE
5 SEPTEMBER 1996

FEDERAL COURT OF AUSTRALIA  No. QG 135 of 1995
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION

BETWEEN:BRIAN CONNELL and LILLIAN CONNELL,
STUART VAN ECK and MARLENE VAN ECK,
ANDREW BOUCAUT and ANNE BOUCAUT
Applicants

AND:NEVADA FINANCIAL GROUP PTY LTD
(ACN 005 382 105)
First Respondent

AND:TREVOR PHILIP HYLAND

Second Respondent

AND:LINDA ELIZABETH DODD

Third Respondent

MINUTES OF ORDERS

JUDGE MAKING ORDER:  Drummond J
DATE OF ORDER:  5 September 1996
WHERE MADE:  Brisbane

THE COURT DECLARES THAT:

1. It was not open to the applicants to commence this proceeding as a representative proceeding under Part IVA of the Federal Court of Australia Act 1976 (Cth).

2

THE COURT ORDERS THAT:

2. Within 14 days the applicants file and serve an amended statement of claim limited to the matters in issue between the six applicants and the three respondents.
3. Upon the filing of the applicants’ amended statement of claim, the proceedings be transferred…

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: [1996] FCA 801
Decision Date: 5 SEPTEMBER 1996

CaseChat Overview and Summary

The case of Connell v Nevada Financial Group Pty Ltd involves a group of 16 persons who brought claims against Nevada Financial Group Pty Ltd and its directors for alleged misleading or deceptive conduct in breach of the Trade Practices Act 1974 (Cth). The applicants sought to commence the proceeding as a representative action under Part IVA of the Federal Court of Australia Act 1976 (Cth). The court had to determine whether it was appropriate for the applicants to bring the proceeding as a representative action and whether the claims gave rise to a substantial common issue of law or fact. The court found that the proceeding could not continue as a representative action because, while there was a common issue concerning the exclusivity of certain products, there were numerous other non-common issues that would significantly impact the nature and duration of the trial. The court ordered that the proceeding be limited to the claims of the six applicants and transferred to the District Court at Brisbane.

Orders