Lowe v Mack Trucks Australia Pty Ltd - [2001] FCA 388

FEDERAL COURT OF AUSTRALIA
Lowe v Mack Trucks Australia Pty Ltd [2001] FCA 388
PRACTICE & PROCEDURE – representative proceeding – incurably defective statement of claim – self-executing order - failure to comply with self-executing order – whether self-executing order should be made without considering whether group members should be notified – whether extension of time to comply with self-executing order should be granted where there can be no compliance in any event – whether self-executing order should be set aside – requirements of justice.
COSTS –indemnity costs payable forthwith – circumstances where appropriate to grant – applicants’ legal advisers on notice of deficiency of notice of motion.
Federal Court of Australia Act 1976 (Cth), Part IVA, s 33X, s 33ZE
Federal Court Rules (“the Rules”), O 10, r 7(1)(a); O 13, r 3(1); O 35, r 7(2)
FAI General Insurance Company Ltd v Southern Cross Exploration NL (1988) 165 CLR 268 considered/applied
Lenijamar Pty Ltd v AGC (Advances) Limited (1990) 27 FCR 388 considered
Sammy Russo Meat Supplies Pty Ltd v Australian Safeway Stores Pty Ltd [1999] FCA 1381 considered
Pye v Renshaw (1951) 84 CLR 58 applied
R D Werner & Co Inc v Bailey Aluminium Products Pty Ltd (1988) 18 FCR 389 applied
Maher v Wallace Diary Co Ltd [1984] VR 129 followed
In re Page; Hill v Fladgate [1910] 1 Ch 489 followed
Philip Morris (Australia) Ltd v Nixon (2000) 170 ALR 487 referred
Colgate-Palmolive Company v Cussons Pty Limited (1993) 46 FCR 225 applied
Sammy Russo Supplies Pty Ltd v Australian Safeway Stores Pty Ltd [1998] 617 FCA (4 June 1998) followed
UFH Holdings Pty Ltd v Ord Minnett Corporate Finance Ltd (Supreme Court of Victoria, Chernov J, unreported, 26 June 1998) followed
GRAHAM LOWE & ANOR v MACK TRUCKS AUSTRALIA PTY LTD
V 249 of 1999
KENNY J
MELBOURNE
6 APRIL 2001

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

V 249 OF 1999

BETWEEN:

GRAHAM LOWE
First Applicant

ERICA LOWE
Second Applicant

AND:

MACK TRUCKS AUSTRALIA PTY LTD ACN 009 719 582
Respondent

JUDGE:

KENNY J

DATE OF ORDER:

6 APRIL 2001

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:
1.   Par 1 of the order made 30 November 2000 be varied, pursuant to O 35, r 7(3) by substituting for the date “7 July 2000”, the date “7 June 2000”.
2.   Par 2 of the order made 29 March 2001, setting aside pars 1 and 2 of the Deputy Registrar’s order made 7 June 2000, operate on and from 28 July 2000.
3.   The further hearing of the notice of motion dated 18 December 2000 be adjourned to 9.30am on 6 June 2001.
4.   There be a directions hearing at 9.30am on 6 June 2001.
5.   Slater & Gordon pay the respondent’s costs (including reserved costs) of the motion, notice of which is dated 28 July 2000, on an indemnity basis and forthwith, notwithstanding that the proceeding is not concluded.
6.   Slater & Gordon pay the respondent’s costs (including reserved costs) up…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2001] FCA 388
Decision Date: 6 APRIL 2001

CaseChat Overview and Summary

The case of Lowe v Mack Trucks Australia Pty Ltd involved the plaintiff, Lowe, and the defendant, Mack Trucks Australia Pty Ltd, with the dispute centering around a motion brought by the plaintiff against the defendant in the Federal Court of Australia. The plaintiff, Lowe, sought to vary and set aside certain orders made in previous proceedings. The court was tasked with deciding whether the orders in question should be varied or set aside, and if so, under what conditions.

The legal issues before the court included the interpretation of court orders, the appropriate circumstances for varying or setting aside those orders, and the costs implications of such actions. The court had to consider whether the orders in question should be altered to reflect a correct date and whether the plaintiff's motion to set aside certain orders was justified. Additionally, the court needed to determine the appropriate costs order in light of the proceedings.

In its reasoning, the court found that the orders should indeed be varied to correct a clerical error in the date. The court determined that the orders setting aside earlier decisions should operate retroactively to the date of the original order, thus providing clarity and finality to the proceedings. Regarding costs, the court ruled that Slater & Gordon, the plaintiff's solicitors, should pay the defendant's costs on an indemnity basis for the specified motions, reflecting the court's view on the merits of the applications. The court also set a timeline for further hearings and directed the publication of notices as part of the procedural fairness to all parties involved.

The final orders included the correction of the date in the original order, the retroactive operation of the setting aside of certain orders, and the setting of future hearing dates. Additionally, the court mandated that Slater & Gordon pay the defendant's costs and directed the publication of notices in Australian newspapers. The court's decision provided clarity on the procedural steps moving forward and ensured that all parties were aware of their obligations and rights in the ongoing proceedings.

Orders

Orders of the court

1. Par 1 of the order made 30 November 2000 be varied, pursuant to O 35, r 7(3) by substituting for the date “7 July 2000”, the date “7 June 2000”.

2. Par 2 of the order made 29 March 2001, setting aside pars 1 and 2 of the Deputy Registrar’s order made 7 June 2000, operate on and from 28 July 2000.

3. The further hearing of the notice of motion dated 18 December 2000 be adjourned to 9.30am on 6 June 2001.

4. There be a directions hearing at 9.30am on 6 June 2001.

5. Slater & Gordon pay the respondent’s costs (including reserved costs) of the motion, notice of which is dated 28 July 2000, on an indemnity basis and forthwith, notwithstanding that the proceeding is not concluded.

6. Slater & Gordon pay the respondent’s costs (including reserved costs) up to and including today, of the motion, notice of which is dated 18 December 2000.

7. Pursuant to s 33X(5) of the Federal Court of Australia Act 1976 notice be published by the applicants’ solicitors substantially in the form of the annexure to this order in one daily newspaper in each capital city of Australia on or before 17 April 2001.

8. That any application by the applicants or by any group member in respect of the further conduct of this proceeding be made returnable at 9.30am on 6 June 2001.

9. Slater & Gordon pay the costs of the advertisement by notice referred to in order 7 herein.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

KENNY J

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Ratio Decidendi

Legal Principle Established

Established by: KENNY J

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IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V 249 OF 1999

BETWEEN:	GRAHAM LOWE First Applicant ERICA LOWE Second Applicant
AND:	MACK TRUCKS AUSTRALIA PTY LTD ACN 009 719 582 Respondent
JUDGE:	KENNY J
DATE OF ORDER:	6 APRIL 2001
WHERE MADE:	MELBOURNE