McBride v Monzie Pty Ltd

Case [2007] FCA 1947

FEDERAL COURT OF AUSTRALIA

McBride v Monzie Pty Ltd [2007] FCA 1947

PRACTICE AND PROCEDURE – representative proceeding – whether proceeding properly constituted under s 33C –whether proceeding should be discontinued under s 33N

PRECEDENT – whether later decision of Full Federal Court on the interpretation of s 33C overruled earlier decision

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

BC v Minister for Immigration and Multicultural Affairs (2001) 67 ALD 60
Behrens v Bertram Mills Circus Ltd [1957] 2 QB 1
Bray v F Hoffman-La Roche Ltd (2003) 130 FCR 317
Brecht v Abrahamson 507 US 619 (1993)
Bright v Femcare Limited (2002) 195 ALR 574
Bristol-MeyersSquibb Co v F H Faulding & Co Ltd (2000) 97 FCR 524
Campbell v Crawford (1985) 12 FCR 317
Cheater v Cater [1918] 1 KB 247
Coleman v Power (2004) 220 CLR 1
Commissioners of Taxation for New South Wales v Palmer [1907] AC 179
Crowther v Thorley (1884) 50 LT 43
Curtis v Corbin 107 A 506 (Connecticut 1919)
French Caledonia Travel Service Pty Ltd (in liq), Re Sutherland (2003) 59 NSWLR 361
Guglielmin v Trescowthick (No 2) (2005) 220 ALR 515
Jacob v Utah Construction and Engineering Pty Ltd (1966) 116 CLR 200
Jacobs v London City Council [1950] AC 361
Johnstone v HIH Ltd [2004] FCA 190
Local 144 Nursing Home Pension Fund v Demisay 508 US 581 (1993)
London Jewellers Ltd v Attenborough [1934] 2 KB 206
Morris (Australia) Ltd v Nixon (2000) 170 ALR 487
National Cable Television Association Inc v American Cinema Editors Inc 937 F2d 1572 (Fed Cir 1991)
Ratcliffe v Watters [1969] 2 NSWR 146
Young v Bristol Aeroplane Co Ltd [1944] KB 718

1B Moore's Federal Practice (2nd ed, 1995)

LINDA MCBRIDE v MONZIE PTY LTD, J & LM MONGELLI PTY LTD, JOHN MONGELLI, LINDA MONGELLI, SOUTHERN STAR REAL ESTATE PTY LTD (IN LIQUIDATION), GIOVANNI MARVELLI, AUSMORT PTY LTD, JOHN BOUDOUKAS, L J HOOKER LIMITED and LANDRIDGE PTY LTD

VID 504 of 2007

FINKELSTEIN J
7 DECEMBER 2007
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

VID 504 of 2007

BETWEEN:

LINDA McBRIDE
Applicant

AND:

MONZIE PTY LTD,
J & LM MONGELLI PTY LTD,
JOHN MONGELLI,
LINDA MONGELLI,
SOUTHERN STAR REAL ESTATE PTY LTD (IN LIQUIDATION),
GIOVANNI MARVELLI,
AUSMORT PTY LTD,
JOHN BOUDOUKAS,
L J HOOKER LIMITED and
LANDRIDGE PTY LTD
Respondents

JUDGE:

FINKELSTEIN J

DATE OF ORDER:

7 DECEMBER 2007

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:

1.The applications by the first, second, third, fourth, seventh, eighth and ninth respondents to prevent this proceeding continuing as a representative proceeding be dismissed.

2.        The said respondents pay the applicant’s 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

VID 504 of 2007

BETWEEN:

LINDA MCBRIDE
Applicant

AND:

MONZIE PTY LTD,
J & LM MONGELLI PTY LTD,
JOHN MONGELLI,
LINDA MONGELLI,
SOUTHERN STAR REAL ESTATE PTY LTD (IN LIQUIDATION),
GIOVANNI…

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AGLC
McBride v Monzie Pty Ltd [2007] FCA 1947
Case
[2007] FCA 1947
Decision Date

CaseChat Overview and Summary

The dispute in McBride v Monzie Pty Ltd was heard by the Supreme Court of Queensland. The applicant sought to proceed with a representative action on behalf of a class of consumers who had been allegedly misled by the respondents. The respondents contested the application, arguing that the proceeding should not be allowed to continue as a representative action.

The central legal issue was whether the applicant was entitled to proceed with the representative action, and if so, whether the respondents were correct in their contention that the proceeding should not be allowed to continue in that form. The court considered the criteria for determining whether a proceeding could be brought as a representative action under the relevant legislation. This included an analysis of whether the proceeding was appropriate for representative determination, whether the applicant was an appropriate person to bring the proceeding, and whether there were any overriding considerations that should prevent the proceeding from continuing as a representative action.

The court found that the proceeding was suitable for representative determination and that the applicant was an appropriate person to bring the proceeding. The court was satisfied that the proceeding could be efficiently managed as a representative action and that there were no overriding considerations that should prevent it from continuing in that form. The court dismissed the applications by the respondents to prevent the proceeding continuing as a representative action and ordered the respondents to pay the applicant's costs.

Orders

Orders of the court

1. The applications by the first, second, third, fourth, seventh, eighth and ninth respondents to prevent this proceeding continuing as a representative proceeding be dismissed.

2. The said respondents pay the applicant’s costs.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

FINKELSTEIN J

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Ratio Decidendi

Legal Principle Established

Established by: FINKELSTEIN J

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