Esposito v Commonwealth of Australia

Esposito v Commonwealth of Australia [2013] FCA 1039 involved a proceeding brought by five applicants against the Commonwealth, the State of New South Wales, Shoalhaven City Council, and the Foundation for National Parks and Wildlife. The applicants sought various declarations and pecuniary relief on the basis of alleged acquisitions of property on other than just terms, contravention of the constitutional guarantee in s 51(xxxi), and claims for damages or compensation for negligent misrepresentation and misleading and deceptive conduct. The applicants sought leave to amend their pleadings, and the respondents opposed certain proposed amendments. The court had to determine whether the applicants should be granted leave to amend their pleadings and whether an Opt Out Notice should be required. The court also considered whether the respondents should provide further discovery and whether the proceeding should be dismissed against one of the respondents. The court granted leave to amend the pleadings in part, struck out certain paragraphs, and ordered an Opt Out Notice to be sent to the relevant class members. The court also deferred the discovery issue and declined to dismiss the proceeding against one respondent.

The court allowed the applicants to amend their pleadings, granting leave to include certain paragraphs and strike out others. Amendments were permitted to paragraphs 1, 2, 3, 4, 5, 6, 6A and 6B of the Statement of Claim, and to paragraphs 3A and 3B of the Amended Originating Application. Paragraphs 7, 8, 8A, 8B, 10, 11, 13 and 14 of the Statement of Claim, and paragraph 7A of the Amended Originating Application were struck out. The court also ordered that the definition of the class members be amended and that a common question be altered. The court required the Foundation to send an Opt Out Notice and accompanying Explanatory Memorandum to relevant class members, with the opt out date set as 25 October 2013. The costs of the directions hearing and case management conference were ordered to be costs in the proceeding.