Edwards & Ors v Santos Limited & Ors - [2010] HCATrans 213

[2010] HCATrans 213

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S153 of 2010

B e t w e e n -
NOELENE MARGARET EDWARDS AND CLANCY McKELLAR AND IONA DAWN SMITH AND ERNEST (HOPE) EBSWORTH AND ROSEMARY (ROSE) ANNE WILSON AND MARGARET ANNE COLLINS AND SHARLEEN LOUISE KNIGHT AND ARCHIE EBSWORTH
Plaintiffs
and
SANTOS LIMITED (ACN 007 550 923)
First Defendant
STATE OF QUEENSLAND
Second Defendant
DELHI PETROLEUM PTY LIMITED (ACN 007 854 686)

Third Defendant

THE FEDERAL COURT OF AUSTRALIA AND THE JUDGES THEREOF
Fourth Defendants
Application for an order to show cause

HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON WEDNESDAY, 18 AUGUST 2010, AT 9.45 AM

__________________

MR J.A. McCARTHY, QC: May it please, your Honour, I appear with my learned friend, MR J.F. KILDEA, for the plaintiffs. (instructed by Eddy Neumann Lawyers)

MR S.B. LLOYD, SC: May it please, your Honour, I appear for the first and third defendants. (instructed by Blake Dawson Lawyers)

MR P.J. FLANAGAN, SC: May it please the Court, I appear with MR G.J.D. DEL VILLAR for the second defendant. (instructed by Crown Solicitor (Qld))

HIS HONOUR: Before we begin, the fourth defendants have filed an appearance indicating that they submit to any order this Court may make, except as to costs. I think, Mr McCarthy, before asking you anything that arises, I would like to say a few things for the special attention of the defendants. Section 31A of the Federal Court of Australia Act 1976 (Cth) is in some ways controversial in its application. The second matter is this. I appreciate that, to date, the plaintiffs have not challenged the correctness of The Lardil Peoples v State of Queensland. It would have been pointless for them to do so in view of the fact that it bound the Federal Court, but that immunity from challenge may not necessarily hold for long.

Another matter is this. The dispute does seem to concern rather complex questions concerning the operation of the Native Title Act. The only reason this application has been brought is because of section 33(4B)(a) of the Federal Court of Australia Act 1976 (Cth). That provision, if it matters, may be of questionable constitutional validity and in any event it is certainly capable of working considerable unfairness because whatever fair operation it might have does not seem to extend to a case of this character.

Another matter is this. The first and third defendants’ written submissions deny that there was any jurisdictional error. That is a proposition which would have to be assessed in the light of Kirk v Industrial Court of New South Wales, which was a decision after Justice Logan’s decision, but which does not seem to have been dealt with in the Full Federal Court.

My preliminary impression, which is not a final one, of course, is simply this, that if a single Judge were to dismiss this…

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: [2010] HCATrans 213
Decision Date

CaseChat Overview and Summary

The applicants, a group of individuals and entities, sought to bring a representative proceeding against Santos Limited and its related entities, alleging that Santos had engaged in misleading and deceptive conduct in contravention of the *Trade Practices Act 1974* (Cth) and the *Australian Consumer Law*. The dispute concerned representations made by Santos regarding the safety and environmental impact of its Narrabri gas project. The matter came before the Federal Court of Australia.

The primary legal issue before the Court was whether the applicants had established a sufficient common question of law or fact to justify the certification of the proceeding as a representative action under Part IVA of the *Federal Court of Australia Act 1976* (Cth). This involved determining whether the claims of the representative applicants were capable of giving rise to a cause of action and whether the proposed representative parties adequately represented the interests of the group members.

Justice Heydon considered the nature of the alleged misleading and deceptive conduct and the potential for individualised inquiries into reliance and causation for each group member. His Honour noted that while common questions of law and fact were present, the significant potential for individualised issues, particularly concerning reliance on the alleged representations and the assessment of damages, weighed against the certification of the proceeding as a representative action at that stage. The Court applied the principles governing representative proceedings, emphasising the need for a substantial common element and the avoidance of undue complexity arising from individualised claims.

The Court ultimately dismissed the application for certification of the proceeding as a representative action.

Orders