J F Yandle and Co Pty Limited v CSN Pty Limited

[2000] FCA 1823

FEDERAL COURT OF AUSTRALIA

J F Yandle & Co Pty Limited v CSN Pty Limited [2000] FCA 1823

J F YANDLE & CO PTY LIMITED AND OTHERS v

CSN PTY LIMITED trading as CSN AUSTRALIA AND OTHERS

NG 982 of 1998

HILL J
5 DECEMBER 2000
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 982 OF 1998

BETWEEN:

J F YANDLE & CO PTY LIMITED
APPLICANT

PHILLIP EDWARD DELLA BOSCA WITH EDWARD DELLA BOSCA PTY LTD trading as E & C DELLA BOSCA
FIRST SUB-APPLICANTS

RUNNYMEDE PTY LTD as trustee for THE AG STEWART FAMILY TRUST and also as trustee for THE DG STEWART FAMILY TRUST trading as STEWART MACHINERY SYNDICATE
SECOND SUB-APPLICANT

AND:

CSN PTY LIMITED trading as CSN AUSTRALIA
RESPONDENT

BETWEEN:

AND:

FIRST CROSS-CLAIM

CSN PTY LIMITED trading as CSN AUSTRALIA
CROSS-CLAIMANT

ENGINEERED PRODUCTS GROUP PTY LIMITED
trading as AUSTRALIAN HYDRAULICS COMPANY
FIRST CROSS-RESPONDENT

LYCO INDUSTRIES PTY LIMITED
SECOND CROSS-RESPONDENT

BETWEEN:

AND:

SECOND CROSS-CLAIM

CSN PTY LIMITED trading as CSN AUSTRALIA
CROSS-CLAIMANT

HIH CASUALTY AND GENERAL INSURANCE LIMITED
CROSS-RESPONDENT

BETWEEN:

AND:

THIRD CROSS-CLAIM

ENGINEERED PRODUCTS GROUP PTY LIMITED
trading as AUSTRALIAN HYDRAULICS COMPANY
CROSS-CLAIMANT

LYCO INDUSTRIES PTY LIMITED
SECOND CROSS-RESPONDENT

JUDGE:	HILL J
DATE:	5 DECEMBER 2000
PLACE:	SYDNEY

EX TEMPORE REASONS FOR JUDGMENT

1. Before the Court is an application for approval of a settlement of a representative proceeding brought by J F Yandle and Co Pty Ltd and other applicants as representative parties.  The application relates to a claim that the applicants and other representative parties suffered loss because of the faulty performance of an Alfarm A630 Cultivator Bar when used with or without a seeder or because of the faulty performance of such cultivator bar when used in conjunction either with a faulty Alfarm MegaSeeder or a faulty Alfarm Belt Feed Air Seeder.

2. There are cross-claims brought in the proceedings but they are not the subject of any settlement.

3. The settlement scheme provides in essence for members of the class who have not opted out to complete a questionnaire containing details of their claim to be submitted to two loss assessors who ultimately will advise on an appropriate figure as settlement of each claimant’s loss, inclusive of party and party legal costs.  A claimant may accept or reject the offer made or negotiate some other settlement.

4. The proposal is that thereafter, if settlement is not reached, a settlement conference would be held and if the parties are still unable to reach agreement, the matter would then be determined by the Court in accordance with the terms of the scheme.  Where a settlement offer is not accepted, the ultimate Court determination is to proceed on the basis that liability has been established in the claimants favour.  In consequence the only matters for determination by the Court will be the question what loss has been suffered and whether that loss might be reduced having regard to matters such as causation, mitigation of loss, contributory negligence or remoteness of damages.

5. The task under s 33V of the Federal Court of Australia Act 1976 (Cth) is, as Finkelstein J said in Lopez v Star World Enterprises Pty Ltd (1999) ATPR 41-678, an onerous one. It will ordinarily be appropriate, for example, that solicitors and counsels acting for representative parties offer their views as to the appropriateness of the settlement in the particular circumstances of the case to demonstrate that the compromise is in the interest of group members.

6. In the present case, the advantage to group members is that they have no obligation to prove liability on the part of the respondent.  Nor are they under any obligation to accept the settlement figures that may arise out of either the loss assessor’s report or the ultimate settlement conference held.  Their right to litigate the question of their loss remains unaffected.  Ultimately, the persons who are members of the representative class may if they wish pursue their remedies before the Court in the ordinary way, but without the need to prove liability. 

7. I have not before me any evidence from solicitors or counsel as would ordinarily be the case concerning the appropriateness of the settlement.  However, given that on its face the settlement does not disadvantage any group member but on the contrary advantages them by relieving them of the need to establish liability, it is I think obvious that the settlement is in the interests of group members.  Accordingly I am prepared to approve the settlement of the proceedings, not of course meaning thereby the cross-claims that arise out of it, in accordance with the proposal for settlement of claims for loss from Alfarm Machinery which is annexed to the affidavit of Rebecca Louise Houston of 30 November 2000.

8. The order of the Court will accordingly be that the representative proceedings so far as they concern the claims of the class of persons represented by the applicants against the respondents is approved.

I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Hill.

Associate:

Dated:             5 December 2000

Counsel for the Applicants:	C E Moore
Solicitor for the Applicants:	Long Howland Houston
Counsel for the Respondent:	J Duncan
Solicitor for the Respondent:	McCullough Robertson
Counsel for the Cross-Respondent to Second Cross-Claim:	T Faulkner
Solicitor for the Cross-Respondent to Second Cross-Claim:	Colin Biggers & Paisley
Date of Hearing:	5 December 2000
Date of Judgment:	5 December 2000