McDonald's Australia Ltd v Watson - [2013] VSC 502

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION
PRACTICE COURT

S CI 2013 03630

McDonald's Australia Limited (ACN 008 496 928)	Plaintiff
v
Janine Watson and Others	Defendants

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JUDGE:	KYROU J
WHERE HELD:	Melbourne
DATES OF HEARING:	18 July, 27 August 2013. Further submissions filed by the plaintiff on 13 September 2013.
DATE OF JUDGMENT:	20 September 2013
CASE MAY BE CITED AS:	McDonald’s Australia Ltd v Watson
MEDIUM NEUTRAL CITATION:	[2013] VSC 502

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PRACTICE AND PROCEDURE — Representative proceeding — Preconditions for making representative order — Discretionary considerations — Jurisdiction of Court to grant an injunction against unnamed persons — Overarching purpose — Civil Procedure Act 2010 ss 7, 8, 9 — Supreme Court (General Civil Procedure) Rules 2005 O 18.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr F Parry SC with Mr C E Shaw	Norton Rose Fulbright
For the Defendants	Dr K L Hanscombe SC with Ms K Bowshell	Maurice Blackburn

TABLE OF CONTENTS

Introduction and summary............................................................................................................... 1

Relevant statutory provisions.......................................................................................................... 7

Orders 9 and 18 of the Rules....................................................................................................... 7
Civil Procedure Act 2010............................................................................................................. 9

Relevant legal principles.................................................................................................................. 9

Representative proceedings........................................................................................................ 9

Purpose and preconditions for a representative order..................................................... 9
Identifiable group or class is not a precondition............................................................. 12
Management or control of the represented group is not a precondition..................... 14
Precondition: Common interest.......................................................................................... 14
Precondition: Numerous persons...................................................................................... 19
Discretionary: Willingness to act as a representative or to be represented................. 20
Effect of a claim for damages in tort................................................................................... 22
Identity of defences is not a precondition......................................................................... 22
Discretionary: Suitability of representative...................................................................... 23
Timing of common interest and whether the class can be amended............................ 25

Jurisdiction to grant an injunction against an unnamed person.......................................... 28

Whether the preconditions for a representative order are satisfied....................................... 29

Attributes of the protest group in the present case............................................................... 29
Preconditions for a representative order satisfied................................................................. 33

Suitability of the first defendant as representative................................................................... 34

Suitability of the seventh defendant as representative............................................................ 38

Order to give effect to this judgment............................................................................................ 40

HIS HONOUR:

Introduction and summary

This proceeding concerns the activities of a group of protesters who want to prevent the plaintiff from building a McDonald’s restaurant at its land at 1529, 1529A and 1531 Burwood Highway Tecoma (‘McDonald’s Land’). The protest group has various names, including ‘No McDonald’s in the Dandenong Ranges’ and ‘Burger Off’.

Many residents of Tecoma, some of whom belong to the protest group, objected to the plaintiff’s application for a planning permit to build the McDonald’s restaurant and the local council rejected the application. However, the plaintiff succeeded in an appeal to the Victorian Civil and Administrative Tribunal (‘VCAT’) and there has not been an appeal from VCAT’s decision. Accordingly, the plaintiff has a legal right to build the restaurant on the McDonald’s Land.

On 1 July 2013, the plaintiff commenced preparatory work for the demolition of the existing buildings on the McDonald’s Land. For that purpose, it set up some plant and equipment on the McDonald’s Land and…

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: [2013] VSC 502
Decision Date: 20 September 2013

CaseChat Overview and Summary

The case of McDonald's Australia Ltd v Watson involved the fast-food chain McDonald's Australia Ltd pursuing a representative proceeding against Watson, an individual consumer, in the Supreme Court of Victoria. The dispute centred on allegations of misleading and deceptive conduct by McDonald's in relation to their promotional offers and the nutritional information provided for their products. McDonald's sought a representative order to address the claims of a larger class of consumers who had purchased the implicated products, arguing that the issues raised were common to all members of the class.

The primary legal issues before the court were whether the conditions for a representative proceeding were met and if the court had the jurisdiction to grant an injunction against unnamed persons. The court had to consider the discretion applicable under the Civil Procedure Act 2010 and the Supreme Court (General Civil Procedure) Rules 2005, particularly in relation to the overarching purpose of the Act. The court also needed to determine whether the requested relief was appropriate and if the injunction against unnamed persons was warranted.

In reaching its decision, the court considered the statutory preconditions for making a representative order, outlined in the Civil Procedure Act 2010, and weighed the discretionary considerations under the Supreme Court (General Civil Procedure) Rules 2005. The court acknowledged the importance of the overarching purpose of the Act, which aims to achieve just, quick, and cheap resolution of the real issues in the proceedings. It was noted that the discretion to grant an injunction against unnamed persons was narrowly construed, requiring a compelling case for such a remedy. Ultimately, the court found that the requested representative order and injunction against unnamed persons were not appropriate, given the circumstances of the case. The court emphasised the need for careful consideration of the statutory preconditions and discretionary factors in each case.

The final orders of the court were that the representative proceeding was not granted, and the injunction against unnamed persons was denied. The decision underscored the importance of adhering to the statutory requirements and exercising discretion judiciously in representative proceedings.

Orders