Johnson Tiles Pty Ltd v Esso Australia Pty Ltd (No 3)

Johnson Tiles Pty Ltd v Esso Australia Pty Ltd (No 3) involved a dispute regarding the interpretation and application of the group proceeding provisions in Part 4A of the Supreme Court Act 1986. The primary issue was whether a plaintiff in a group proceeding must be a member of the group and have the same cause of action as other members of the group. Additionally, the court considered whether a non-party group member could be called as a witness to provide evidence on factual issues that were not necessarily shared by all group members. The defendants opposed the calling of such a witness, arguing that it was unfair and contrary to the spirit of the group proceeding legislation.

The court addressed these issues during a directions hearing on 21 September 2001. The plaintiffs proposed to call sample group members to testify about their property damage as domestic users, even though the second plaintiff, who was also a domestic user, did not suffer any property damage. The defendants argued that allowing non-party group members to give evidence would be unfair, as they would not be subject to costs if they failed in their claims, and that this approach was contrary to the group proceeding legislation. The court had to determine whether it was permissible to call such a witness under the legislation and if there was any risk that the witness would be liable for costs if they failed in their testimony.

The court concluded that the calling of a non-party group member as a witness in a group proceeding should only be permitted if the witness was a party to the proceeding or subject to a special order under the legislation allowing such a course. The risk that the witness would be liable for costs if they failed in their testimony was deemed unacceptable. The court found that the defendants' concerns about unfairness and the spirit of the group proceeding legislation were valid. Therefore, the plaintiffs' proposal to call a non-party group member as a witness was not allowed.

The court issued procedural orders to guide the preparation and conduct of the trial, including the questions that should be considered and determined at the trial. These orders were based on the questions proposed by the parties, with guidance from the case of McMullin v ICI Australia Operations Pty Ltd. The court's decision ensured that the proceedings adhered to the requirements of the group proceeding legislation and maintained fairness for all parties involved.