Johnson Tiles Pty Ltd v Esso Australia Ltd

FEDERAL COURT OF AUSTRALIA

Johnson Tiles Pty Ltd v Esso Australia Ltd [1999] FCA 636

PRACTICE AND PROCEDURE – Representative proceedings under Part IVA of the Federal Court of Australia Act 1976 (Cth) – group members exceeding one million – claims in negligence and breach of s 52 of the Trade Practices Act 1974 (Cth) alleging economic loss – whether substantial common issues of law or fact – whether act or omission of respondents caused or contributed to loss – whether that question was a substantial common issue of fact – whether that question was “swamped” by other issues

PRACTICE AND PROCEDURE – abuse of process – whether proceeding was “fishing” for a cause of action

WORDS & PHRASES – “substantial common issue”

Federal Court of Australia Act 1976 (Cth) – ss 33C(1), 33N(1)

Cashin v Craddock [1876] 2 ChD 140 discussed
Silkfield Pty Ltd v Wong (1998) 159 ALR 329 applied

JOHNSON TILES PTY LTD V ESSO AUSTRALIA LTD

VG 519 OF 1998

VG 524 OF 1998

JUDGES:      BLACK CJ, NORTH & FINKELSTEIN JJ
PLACE:         MELBOURNE
DATE:           12 MAY 1999

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VG 519 OF 1998 VG 524 OF 1998

BETWEEN:	JOHNSON TILES PTY LTD and GREGORY ALAN DEAN Applicants
AND:	ESSO AUSTRALIA LTD and ESSO AUSTRALIA RESOURCES LTD Respondents
JUDGES:	BLACK CJ, NORTH & FINKELSTEIN JJ
DATE OF ORDER:	12 MAY 1999
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1.   Leave to appeal be refused.

2.   The respondents pay the applicants’ taxed costs.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VG 519 OF 1998 VG 524 OF 1998

BETWEEN:	JOHNSON TILES PTY LTD and GREGORY ALAN DEAN Applicants
AND:	ESSO AUSTRALIA LTD and ESSO AUSTRALIA RESOURCES LTD Respondents

JUDGES:	BLACK CJ, NORTH & FINKELSTEIN JJ
DATE:	12 MAY 1999
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1. This is an application by the respondents Esso Australia Ltd and Esso Australia Resources Ltd (collectively “Esso”) for leave to appeal against interlocutory orders made by Merkel J on 5 February 1999. 

2. Esso had applied for orders that the consolidated proceeding which had been brought against them, originally as two separate proceedings, not continue as a representative proceeding. There were two bases for that application. First it was alleged that the two proceedings, at the time of commencement, did not satisfy the requirements of s 33C(1) of the Federal Court of Australia Act 1976 (Cth). Secondly, it was contended that Esso was entitled to such an order under s 33N(1) because it was inappropriate that the claims made in the proceeding continue in that form.

3. Section 33C(1) provides:

   “(1)     Subject to this Part, where:

   (a)       7 or more persons have claims against the same person;
     and

   (b)the claims of all those persons are in respect of, or arise out of,

   the same, similar or related circumstances; and

   (c)       the claims of all those persons give rise to…