Jonsandi Transport Pty Ltd v Paccar Australia Pty Ltd

[1999] FCA 876

FEDERAL COURT OF AUSTRALIA

Jonsandi Transport Pty Ltd v Paccar Australia Pty Ltd
[1999] FCA 876

TRADE AND COMMERCE – trade practices and related matters – representative proceedings – “opt-out” notices – where “opt-out” notice not in the form directed by the court – whether sending of  “opt-out” notices was invalid by reason of non-conformance with court order

Federal Court of Australia Act1976 (Cth) s 33J, s 51
Federal Court Rules   O 76 r 6

JONSANDI TRANSPORT PTY LTD v PACCAR AUSTRALIA PTY LTD (NO.2)

NO. 712 OF 1998

HEEREY J
22 JUNE 1999
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	712 of 1998

BETWEEN:	JONSANDI TRANSPORT PTY LTD (ACAN 065 019 070) Applicant
AND:	PACCAR AUSTRALIA PTY LTD (ACAN 004 669 667) Respondent
JUDGE:	HEEREY J
DATE OF ORDER:	22 JUNE 1999
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1.Declare that the sending of opt-out notices by the respondent pursuant to the order of 29 April 1999 is not invalid by reason of the enclosure therewith of a notice informing the recipients that it is sufficient if they send one copy of the notice to the respondent’s solicitors.

2.Declare that opt-out notices received or to be received by the respondent’s solicitors shall be valid opt-out notices for the purposes of this proceeding notwithstanding that copies of such notices were not sent directly to the Court or the applicant’s solicitors.

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	712 of 1998

BETWEEN:	JONSANDI TRANSPORT PTY LTD (ACAN 065 019 070) Applicant
AND:	PACCAR AUSTRALIA PTY LTD (ACAN 004 669 667) Respondent

JUDGE:	HEEREY J
DATE:	22 JUNE 1999
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1. In this representative proceeding under Part IVA of the Federal Court of Australia Act 1976 (Cth) an order was made under s 33J(2) on 29 April 1999 that

   “the respondent on or before 31 May 99 forward by prepaid post to all purchasers of new Kenworth trucks on or after 9 July 1992 and all persons who according to the respondent’s latest information are current owners or operators of Kenworth trucks products, correspondence in the form set out in the schedule 2 to these orders.”

2. Schedule 2 consisted of a letter describing the proceeding.  It included the following:

   “If you wish to participate you may contact Slater and Gordon”

   and the telephone number and the name of the relevant person at that firm are given.  The letter continues:

   “If you wish to opt out you must forward the enclosed notice to all involved of the following by 4 pm on 30 June 1999:  (1) the District Registrar of the Federal Court of Australia, 305 William Street, Melbourne; (2) the applicant care of its solicitors Slater and Gordon, 533 Little Lonsdale Street, Melbourne; (3) the respondent Paccar Australia Ltd care of its solicitors Mills Oakley Lawyers, 131 Queen Street, Melbourne.”

3. Attached to schedule 2 is a notice in terms of Form 131.  Order 73 r 6 says an opt-out notice “may be in accordance with Form 131”. 

4. What happened was that the respondent (not its solicitors) sent notices out in the form of schedule 2 but annexed on a separate page the following statement:

   “We have enclosed the court’s style opt-out notice which you may use if you wish to ‘opt out’ of the representative proceedings.  Alternatively you may wish to simply sign and date the form attached to this letter and place it in the ‘reply paid’ envelope addressed.  Mills Oakley will then undertake to copy and forward your ‘opt-out’ form to the court and Slater and Gordon on your behalf.  You will then no longer be part of the representative proceeding against Kenworth.”

5. It is common ground that what was done did not comply with schedule 2.  The question that then arises is what consequence should follow.  In my opinion it is regrettable that in a proceeding which is quite complicated enough there has been this further effort, expense and confusion as a result of a failure to follow a simple form of order which had been agreed upon between the parties.  However, I am not prepared to infer that there was any sinister motive involved or any aim of improperly encouraging or persuading people to opt out when they might not have otherwise done so.

6. The requirements of Form 131 might be a little confusing for recipients of the notices, who would be unlikely to be legally trained.  They are expected to apprehend that it is addressed to three separate recipients and, presumably from their own resources, make several photocopies and dispatch them to the three addressees.  Adopting perhaps a more optimistic view of human nature I am prepared to infer that the respondent thought it might smooth the path of those who wished to opt out if such persons only had to send the notice to one address.  Perhaps put another way, since usually any person can act by an agent, the respondent was endeavouring to constitute its solicitors as agent of the recipients for the purpose of sending opt-out notices to the other two addressees nominated in the order.

7. I do not think any substantial injustice, or any injustice at all, has been done to the 339-odd persons who have returned opt-out notices to date.  Likewise, I think it would be only adding further confusion to require the recipients again to comply with the order and on this occasion send opt-out notices to three separate addresses.  Such a process would not be likely to spread public respect for the processes of the Court.

8. I think the appropriate order is to exercise the power under s 51 of the Federal Court of Australia Act 1976 (Cth) and declare that the sending of opt-out notices is not invalid by reason of the defect constituted by the sending of the notice to which I have referred and that opt-out notices received by the respondent’s solicitors shall be valid opt-out notices for the purpose of this proceeding notwithstanding that copies of such notices were not sent directly by the recipient to the Court and the applicant’s solicitors.

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

Associate:

Dated:             22 June 1999

Counsel for the Applicant:	Mr M D Wyles
Solicitor for the Applicant:	Slater and Gordon
Counsel for the Respondent:	Mr J Larkins QC with Mr T J North
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	22 June 1999
Date of Judgment:	22 June 1999