FEDERAL COURT OF AUSTRALIA
Guglielmin v Trescowthick (No.2) [2005] FCA 138
PRACTICE AND PROCEDURE – REPRESENTATIVE PROCEEDINGS – representative proceedings under s 33C Federal Court of Australia Act 1976 (Cth) – each group member must have a claim against all respondents – whether each group member must have the same claim against all respondents – meaning of ‘claim’ – claims must arise of out of similar or related circumstances – claims must give rise to substantial common issues of law or fact – judicial discretion to discontinue the action as a representative proceeding under s 33N
Federal Court of Australia Act 1976 (Cth)
Australian Securities and Investment Commission Act 1989 (Cth)
Trade Practices Act 1974 (Cth)
Fair Trading Act 1987 (SA)
Federal Court of Australia Amendment Act 1991 (Cth)
Building Units and Group Titles Act 1980 (Qld)Guglielman v Trescowthick [2004] FCA 326
Wong v Silkfield Pty Ltd (1999) 199 CLR 255
Phillip Morris (Australia) Ltd v Nixon (2000) 170 ALR 487
Johnstone v HIH Insurance Ltd (In Liquidation) [2004] FCA 190
Petrusevski v Bull Dogs Rugby League Club Limited [2003] FCA 61
Hunter Valley Community Investments Pty Ltd v Bell (2001) 37 ACSR 326
Patrick v Capital Finance Corporation (Australasia) Pty Ltd [2001] FCA 1073
Milfull v Terranora Lakes Country Club Limited [2002] FCA 178
Bray v F Hoffmann-La Roche Ltd (2003) 130 FCR 317
King v GIO Australia Holdings Ltd (2000) 100 FCR 209
King v GIO Australia Holdings Ltd [2000] FCA 1543
Finance Sector Union of Australia v Commonwealth Bank of Australia (1999) 94 FCR 179
King v AG Australia Holdings Ltd [2002] FCA 1560
Zhang v Minister for Immigration, Local Government and Ethnic Affairs (1993) 45 FCR 384
Nixon v Philip Morris (Australia) Ltd (1999) 95 FCR 453
Carnie v Esanda Finance Corporation Limited (1995) 182 CLR 398
Bright v Femcare Ltd (2003) 195 ALR 575Connell v Nevada Financial Group Pty Ltd (1996) 139 ALR 723
Australian Competition and Consumer Commission v Giraffe World Australia Pty Ltd (1998) 84 FCR 512ELEANOR GUGLIELMIN v ADAM JOHN TRESCOWTHICK, JOHN MAURICE PATTEN, ROSS GRAHAM OAKLEY, ROBERT DAVID MATTINGLY, ROGER ANDREW CURTIS & MARK CHARLES TRESCOWTHICK
S 153 of 2002
MANSFIELD J
25 FEBRUARY 2005
ADELAIDE
IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY
S153 OF 2002
BETWEEN:
ELEANOR GUGLIELMIN
APPLICANTAND:
ADAM JOHN TRESCOWTHICK
FIRST RESPONDENTJOHN MAURICE PATTEN
SECOND RESPONDENTROSS GRAHAM OAKLEY
THIRD RESPONDENTROBERT DAVID MATTINGLY
FOURTH RESPONDENTROGER ANDREW CURTIS
FIFTH RESPONDENTMARK CHARLES TRESCOWTHICK
SIXTH RESPONDENTJUDGE:
MANSFIELD
DATE OF ORDER:
25 FEBRUARY 2005
WHERE MADE:
ADELAIDE
THE COURT ORDERS THAT:
1.There be no order on the motion of the second to fifth respondents for an order that this representative proceeding be dismissed.
2.The motion is otherwise adjourned to a date to be fixed with liberty to call it on on reasonable notice.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY
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- Case
- [2005] FCA 138
- Decision Date
CaseChat Overview and Summary
The court examined the provisions of section 33C(1) and considered whether there had been any non-compliance by the applicant. In addition, the court considered the implications of section 33N, which allowed it to decide whether the proceeding should be dismissed or to continue as a representative proceeding. The court also took into account the potential consequences of its decision on the parties involved and the broader interests of justice.
After careful consideration, the court decided that it would not exercise its discretion to order the dismissal of the proceeding or to discontinue it as a representative proceeding. The court found that there was no sufficient ground to dismiss the proceeding for non-compliance with section 33C(1). The court also determined that there were no compelling reasons to discontinue the proceeding as a representative proceeding. The court's decision was based on the overall circumstances of the case and the principles of fairness and justice.
The court made an order that there be no order on the motion of the second to fifth respondents for an order that the representative proceeding be dismissed. The motion was adjourned to a future date, with liberty to call it on reasonable notice. The court also proposed, subject to any further submissions, to order that the second to fifth respondents pay to the applicant the costs of the notice of motion to date. This decision allowed the proceeding to continue, while also recognising the importance of fairness and the need to manage costs effectively.
Orders
Orders of the court
1. There be no order on the motion of the second to fifth respondents for an order that this representative proceeding be dismissed.
2. The motion is otherwise adjourned to a date to be fixed with liberty to call it on on reasonable notice.
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
Established by: MANSFIELD J
Full text does not contain this section.