Guglielmin v Trescowthick (No 2)

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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 575

Connell v Nevada Financial Group Pty Ltd (1996) 139 ALR 723
Australian Competition and Consumer Commission v Giraffe World Australia Pty Ltd (1998) 84 FCR 512

ELEANOR 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
APPLICANT

AND:

ADAM JOHN TRESCOWTHICK
FIRST RESPONDENT

JOHN MAURICE PATTEN
SECOND RESPONDENT

ROSS GRAHAM OAKLEY
THIRD RESPONDENT

ROBERT DAVID MATTINGLY
FOURTH RESPONDENT

ROGER ANDREW CURTIS
FIFTH RESPONDENT

MARK CHARLES TRESCOWTHICK
SIXTH RESPONDENT

JUDGE:

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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Details
Case
[2005] FCA 138
Decision Date

CaseChat Overview and Summary

The case of Guglielmin v Trescowthick (No 2) involved the second to fifth respondents seeking to have the representative proceeding dismissed. They contended that the applicant, Guglielmin, had failed to comply with section 33C(1) of the relevant Act. The matter was heard in a court which had the jurisdiction to make orders under section 33N of the Act, allowing it to decide whether to dismiss the proceeding or to continue it as a representative proceeding. The court was tasked with determining whether the applicant had indeed failed to comply with the statutory requirement and, if so, whether the court should exercise its discretion to dismiss the proceeding or to allow it to continue.

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

MANSFIELD J
For the same reasons, I also do not exercise my discretion to order by reason of s 33N(1)(d) that this proceeding no longer continue as a representative proceeding.CONCLUSION For the reasons given, I decline to order that this representative proceeding be dismissed for failing to comply with s 33C(1) of the Act. I further presently decline to order under s 33N that it no longer continue as a representative proceeding. Subject to any further submissions, I will adjourn the notice of motion of the second to fifth respondents to a date to be fixed with liberty to apply. The intent is that, in the event that those respondents later wish to revive their application under s 33N, they may do so. The order they seek on that motion that the proceedings be dismissed is refused. I also propose, subject to any further submissions, to order that the second to fifth respondents pay to the applicant the costs of that notice of motion to date.

Ratio Decidendi

Legal Principle Established

Established by: MANSFIELD J

Full text does not contain this section.