FEDERAL COURT OF AUSTRALIA
Johnson Tiles Pty Ltd v Esso Australia Ltd [1999] FCA 1363
PRACTICE AND PROCEDURES – representative proceeding under Part IVA of the Federal Court of Australia Act 1976 (Cth) – ‘No Win No Fee’ Agreements entered into with group members – consideration of the role of the Court in approving of or supervising fee agreements with group members – whether solicitors ought to be enjoined from enforcing fee agreements with group members without Court approval
CONSTITUTIONAL LAW – inconsistency with State law - whether Legal Practice Act 1996 (Vic) inconsistent with Pt IVA – whether notice under s 78B of the Judiciary Act 1903 (Cth) is required
Federal Court of Australia Act 1976 (Cth) – Pt IVA, ss 33V, 33X, 33Y, 33ZF, 33ZJ and 43(1A)
Legal Practice Act 1996 (Vic) – ss 96, 97 and 98
Judiciary Act 1903 (Cth) – s 78B
Constitution – s 109Narain v Parnell (1986) 9 FCR 479 – considered
Stock Motor Ploughs Ltd v Forsyth (1932) 48 CLR 128 – cited
Victoria v The Commonwealth (1937) 58 CLR 618 – cited
Australian Mutual Provident Society v Goulden (1986) 160 CLR 330 at 337 – cited
New South Wales v The Commonwealth (1983) 151 CLR 302 – cited
Viskauskas v Niland (1983) 153 CLR 280 – cited
Ex Parte McLean (1930) 43 CLR 472 – cited
Woolf v Snipe (1933) 48 CLR 677 – applied
Keith Hercules & Sons v Steedman (1987) 17 FCR 290 – considered
Bevan Ashford v Geoff Yeandle (Contractors) Ltd [1999] Ch 239 - citedJOHNSON TILES PTY LTD v ESSO AUSTRALIA LTD
VG 519 OF 1998JUDGE: MERKEL J
PLACE: MELBOURNE
DATE: 1 OCTOBER 1999
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
VG 519 OF 1998
BETWEEN:
JOHNSON TILES PTY LTD (ACN 004 576 103)
AND ORS
ApplicantAND:
ESSO AUSTRALIA LTD (ACN 000 018 566)
AND ANOR
RespondentJUDGE:
MERKEL J
DATE OF ORDER:
1 OCTOBER 1999
WHERE MADE:
MELBOURNE
UPON Maurice Blackburn Cashman and Slater & Gordon by their counsel undertaking to the Court that until further order, whether by their servants, agents or howsoever otherwise, they:
(a)will not enforce or give effect to ‘No Win No Fee’ Fee & Retainer Agreements entered into by the said firms of solicitors with any persons, other than a representative party, who are group members in proceedings number VG 519 of 1998 and VG 524 of 1998 and will not demand or accept payment of any costs or disbursements pursuant to such agreements other than pursuant to an order or direction of the Court;
(b)will inform all group members who have entered into or signed, or who hereafter enter into or sign, such agreements of these undertakings to the Court.
THE COURT ORDERS THAT:
1. The Notice of Motion of the respondents dated 6 September 1999 be dismissed.
2. Maurice Blackburn Cashman and Slater & Gordon pay to the respondents their taxed costs of and incidental to the Notice of Motion.
3. Maurice Blackburn…
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- Case
- [1999] FCA 1363
- Decision Date
CaseChat Overview and Summary
The court considered whether it should exercise its supervisory jurisdiction over the fee arrangements. The applicants’ solicitors had assured the court that group members would not incur a liability for costs other than taxed costs as between solicitor and client and only in accordance with orders or directions of the court. However, the court was concerned that the fee arrangements might not comply with the Act. The court found that it was appropriate to make orders enjoining the applicants’ solicitors from enforcing the 'No Win No Fee' agreements or receiving any payments pursuant to such agreements unless in accordance with an order or direction of the court. The applicants’ solicitors offered undertakings to the court to comply with the proposed injunctions, which the court accepted.
The court dismissed the respondents' Notice of Motion but ordered that the applicants’ solicitors pay the respondents' taxed costs of and incidental to the Notice of Motion. The court also directed that no part of those costs be charged directly or indirectly to the representative parties or to any group members.
Orders
Orders of the court
1. The Notice of Motion of the respondents dated 6 September 1999 be dismissed.
2. Maurice Blackburn Cashman and Slater & Gordon pay to the respondents their taxed costs of and incidental to the Notice of Motion.
3. Maurice Blackburn Cashman and Slater & Gordon not charge, directly or indirectly, the representative parties or group members any part of the costs payable under these orders or of the costs incurred by them in relation to the Notice of Motion.
Background
Background to the litigation
Evidence
Evidence Before The Court
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Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
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