FEDERAL COURT OF AUSTRALIA
Dillon v RBS Group (Australia) Pty Limited [2017] FCA 896
File number: NSD 1016 of 2014 Judge: LEE J Date of judgment: 8 August 2017 Catchwords: PRACTICE AND PROCEDURE – heterodox nature of ‘interim’ or ‘interlocutory’ declarations and consideration of when declarations can made other than at a final hearing – requirement of utility and extant justiciable controversy – declaratory relief refused
PRACTICE AND PROCEDURE – Part IVA representative proceedings – consumer class action – Merck orders concerning initial trial – accelerated adjudication of sample group member claim, common issues and ‘issues of commonality’ – the nature of a ‘claim’ within the meaning of s 33C of the Federal Court of Australia Act 1976 (Cth) and principled approach to composition of group membership –flexibility of Part IVA case management powers and relationship with the overarching purpose – determination of issues that do not arise on the claim of the representative applicant without the creation of sub-groups
Legislation: Federal Court of Australia Act 1976 (Cth), ss 33C, 33C(1), 33C(1)(c), 33C(2)(a)(i), 33D, 33H, 33J, 33K, 33N, 33Q, 33R, 33S, 33T, 33W, 33X, 33ZA, 33ZB, 33ZC, 33ZC(1), 33ZE, 33ZF, 37M(3), 37P, 43(1A)
Federal Court Rules 2011 (Cth), rr 8.01, 8.05(b), 9.32, Schedule 1
Civil Procedure Act 2010 (Vic), ss 7, 9, 9(1)(c), 91(1)(d)
Cases cited: Australian Competition and Consumer Commission v Giraffe World Australia Pty Limited [1998] FCA 819; (1998) 84 FCR 512
Australian Competition and Consumer Commission v MSY Technology Pty Ltd [2012] FCAFC 56; (2012) 201 FCR 378
AED Oil Ltd v Puffin FPSO Ltd [2010] VSCA 37; (2010) 27 VR 22
Allphones Retail Ltd v Weimann [2009] FCAFC 135
Banque Commerciale SA En Liquidation v Akhil Holdings Ltd [1990] HCA 11; (1990) 169 CLR 279
Clarke v Chadburn [1985] 1 WLR 78
Dorojay Pty Ltd v Aristocrat Leisure Limited (Federal Court of Australia, Proceedings No NSD 362 of 2004
Earglow Pty Limited v Newcrest Mining Limited [2015] FCA 328; (2015) 230 FCR 469
International General Electric Co of New York v Customs and Excise Commissioners [1962] Ch 784
Johnson Tiles Pty Ltd v Esso Australia Pty Ltd [2003] VSC 27; (2003) Aust Torts Reports 81-692
Johnson Tiles Pty Ltd v Esso Australia Pty Ltd (No 3) [2001] VSC 372
Kamasaee v Commonwealth of Australia (No 10) [2017] VSC 272
King v GIO Australia Holdings Limited [2000] FCA 617; (2000) 100 FCR 209
Kinsella v Gold Coast Council [2014] QSC 65; [2015] 1 Qd R 274
Kirby v Centro Properties Ltd (Federal Court of Australia, Proceedings No. VID 326 of 2008
Matthews v SPI Electricity Pty Ltd (Ruling 5) [2012] VSC 66; (2012) 35 VR 615
Merck Sharp & Dohme (Australia) Pty Ltd v Peterson [2009] FCAFC 26
Peterson v Merck Sharpe & Dohme (Australia) Pty Ltd (No 5) (2010) 87 IPR 234
Philip Morris (Australia) Ltd v Nixon [2000] FCA 229; (2000) 170 ALR 487
Re Estate of R D Firns [2001] NSWSC 184
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- Case
- [2017] FCA 896
- Decision Date
CaseChat Overview and Summary
The court held that the sought declaration was not suitable for an interlocutory hearing because it did not address a real legal controversy but rather an abstract or hypothetical concern. The court emphasized that the exercise of judicial power at an initial trial should be principled and focused on concrete facts in issue. It also considered the broader case management powers available under Part IVA, highlighting the need for flexibility while adhering to the overarching purpose of the legislation. The court found that the declaration in question did not align with these principles and therefore declined to make it.
The court dismissed the interlocutory application seeking declaratory relief and made no order regarding the costs of the application. Additionally, the court extended various time limits for filing points of claim, defences, and standard discovery for the Sample Group Member. These orders facilitated the ongoing proceedings by allowing the Sample Group Member to join issues on additional claims and ensuring that all relevant evidence was properly disclosed.
Orders
Orders of the court
1. The applicants’ interlocutory application dated 17 July 2017 (and filed on 18 July 2017) be dismissed.
2. There be no order as to the costs of the interlocutory application.
3. The time for the Sample Group Member to file and serve points of claim which, to the extent possible, is to incorporate by reference, allegations made in the second amended statement of claim but supplement those allegations with the individual factual and legal contentions made by the Sample Group Member, be extended to 11 August 2017.
4. The time for the respondents to file and serve points of defence in relation to the points of claim filed by the Sample Group Member, be extended to 25 August 2017.
5. The time for the Sample Group Member to file and serve any reply to the points of defence, be extended to 1 September 2017.
6. The time for the Sample Group Member to give standard discovery as required by order 19 made on 15 June 2017, and to provide electronic copies of the documents discovered in Part 1 of the list of documents, be extended to 11 August 2017.
7. The time for the applicants and Sample Group Member to serve lay affidavit evidence upon which they intend to rely at the initial trial be extended to 11 August 2017.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
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
Ratio Decidendi
Legal Principle Established
The balance of these reasons will be structured as follows:·Part B: Why the Declaration Should not be Made;·Part C: The Three Relevant Contested Issues; ·Part D: The Initial Trial Orders;·Part E: Conclusion and Orders.B WHY THE DECLARATION SHOULD NOT BE MADE In support of the proposed order sought, junior Counsel for the applicants, Mr Rares, helpfully referred me to Matthews v SPI Electricity Pty Ltd (Ruling 5) [2012] VSC 66; (2012) 35 VR 615, where J Forrest J, at 625 [43], made a declaration as to the potential costs liability of a Sample Group Member, describing the making of an order which provided finality as “a practical and sensible suggestion designed to facilitate a decision by the Sample Group Members as to whether to participate in the trial”: at 623 [34]. In summary, his Honour held that: (a)those group members contemplating engaging in the process should not be left in the dark and should know whether, like the applicant, if their claim failed, they would be at risk of the application that costs follow the event; (b)in Johnson Tiles Pty Ltd v Esso Australia Pty Ltd (No 3) [2001] VSC 372, Gillard J ruled against a contention that a Sample Group Member ought to be exposed to an order for costs in the event that the group member’s claim failed. In doing so, his Honour determined that the relevant legislative provisions prevented a sample group member being liable for adverse costs; and(c)it was neither inappropriate nor beyond the power of the Court to make an interlocutory declaration as sought because: (i) of the breadth of the power contained in s 33ZF; and (ii) it was in the interests of justice to ensure that sample group members are aware of the costs consequences of their participation. For my part, despite the broad nature of the power contained in s 33ZF, I am not prepared to grant the relief in this case because the order sought is a form of relief which is not directed to the final determination of a real legal controversy. This statement requires some elaboration. The first issue to be considered is what was described by the applicants as the ‘interlocutory’ nature of the declaration (although, for reasons I will explain, I think this description, in the present case, is a misnomer). In Graham Barclay Oysters Pty Ltd v Ryan [2002] HCA 54; (2002) 211 CLR 540, a final judgment at an initial trial was entered in relation to the individual claim of the representative applicant but the primary judge went on to make a declaration in connexion with claims of group members. Put another way, the Court purported to make an interlocutory order in the form of a declaration affecting the rights of the respondent and group members. In noting that the making of such a declaration was “wrong”, Gummow and Hayne JJ said (at 590 [128]) that an: “(i)nterlocutory declaration” is a form of order not known to the law ...” The same point was made in another representative proceeding by Hayne and Callinan JJ in Dovuro Pty Ltd v Wilkins [2003] HCA 51; (2003) 215 CLR 317 at 363 [143].