McMullin v ICI Australia Operations Ltd - [1997] FCA 1605

FEDERAL COURT OF AUSTRALIA

PRACTICE AND PROCEDURE - Confidentiality order - Confidentiality refused in

respect of order for payment of damages assessed by Court.

COSTS - Representative proceeding - Unidentified group members - Whether costs

order should be deferred to take account of the possibility that total damages will be less than a pre-trial offer - Effect of statutory requirement for approval of settlement or discontinuance - Possible compromise courses - Appropriate costs order -

Recoverability of solicitorlclient costs.

Federal Court of Australia Act 1976, ss 33V and 3325.

BRTAN McMULLIN and LEONE MARGARET McMULLIN v ICI AUSTRALIA

OPERATIONS PTY LTD, ICI AUSTRALIA LIMITED and CROP CARE

AUSTRALIA PTY LIMITED

NG305 of 1995

JUDGE:	WECOX J
DATE:	27 NOVEMBER *1997*
PLACE:	SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY

BETWEEN:	B U N McMULLIN AND LEONE MARGARET McMULLIh' Applicants
AND:	ICI AUSTRALIA OPERATIONS PTY LTD First Respondent
ICI AUSTRALIA LIMITED Second Respondent
CROP CARE AUSTRALIA PTY LIMITED Third Respondent
JUDGE:	WILCOX J
DATE:	27 NOVEMBER 1997
PLACE:	SYDNEY

THE COURT ORDERS THAT:

1. On or before 12 December 1997, the first, second and third respondents pay to Peter Long

& CO, solicitors for the applicants, the sums of:

(i)	$79,600 in satisfaction of the claim of the applicants BrianMcMullin and Leone Margaret McMullin;
(ii)	$157,105 in satisfaction of the claim of group member Bruce Henry Gunning;
(iii)	$21,743 in satisfaction of the claim of group members Gerard William Gallagher, Nancy Gallagher and Michael Gallagher;
(iv)	$41,869 in satisfaction of the claim of group members John and Jilt Roughley;
(v)	$242,289 in satisfaction of the claim of group members Ian Christopher Hill and Kay Hill;
(vi)	$120,564 in satisfaction of the claim of group members Brian Allan Hanigan, Keny Hanigan and Beulah Pastoral Company Pty Limited; and

(vii) $53,049 in satisfaction of the claim of group member PhiIIip Wiliam Kirkby.

2. The first, second and third respondents pay the costs of the applicants incurred in connection with the proceeding up to and including 5 November 1997.

AND THE COURT NOTES THE AGREEMENTS BETWEEN THE PARTIES:

(i) in respect of the claims of each of the persons referred to in order l(ii), (G), (iv), (v), (vi) and (vii) above, each party will bear its own costs of the litigation including costs incurred in respect of the hearing after 5 November 1997; and

(ii) the amounts of offers made to each of those persons shall be kept confidential to the parties and their advisers.

Note:

Settlement and entry of orders is dealt with in Order 36 of the Federal Court

Rules.

GENERAL DISTRJBUTION

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NG305 of 1995

BETWEEN:	BRUN McMULLIN AND LEONE MARGARET McMULLIN Applicants
AND:	ICI AUSTRALIA OPERATIONS PTY LTD First Respondent
ICI AUSTRALIA LIMITED Second Respondent
CROP CARE AUSTRALIA PTY LIMITED Third Respondent
JUDGE:	WILCOX J
DATE:	27 NOVEMBER 1997
PLACE:	SYDNEY
EXTEMPORE REASONS FOR JUDGMENT (N0.6)

WILCOX J: This morning I handed down Reasons for Judgment…

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: [1997] FCA 1605
Decision Date: 27 Nov 1997

CaseChat Overview and Summary

The Federal Court of Australia was presented with a case where Brian and Leone Margaret McMullin, as applicants, sought damages from ICI Australia Operations Pty Ltd, ICI Australia Limited, and Crop Care Australia Pty Limited, collectively referred to as the respondents. The case revolved around issues of confidentiality regarding the payment of damages assessed by the court and the determination of costs within a representative proceeding involving unidentified group members. The McMullin's, on their own behalf and on behalf of several group members, had brought claims against the respondents. After the court determined the quantum of liability, the parties reached a settlement wherein specific amounts were allocated to each group member's claim. The applicants sought to keep these amounts confidential, but the court declined to enforce this confidentiality, emphasizing the public's right to access information about court determinations.

The legal issues before the court included whether the costs order should be deferred due to the potential for total damages to be less than a pre-trial offer and the implications of statutory requirements for court approval of settlements or discontinuance in representative proceedings. The court was also tasked with determining the appropriate basis for the costs order, whether it should be on an indemnity basis, and the recoverability of solicitor/client costs. Justice Wilcox deliberated on these matters, considering the efficiency of representative proceedings and the potential for pre-trial offers to influence costs outcomes. The court ultimately decided against making an indemnity costs order, opting instead for a party/party basis. Justice Wilcox also highlighted the importance of the court's role in approving settlements in representative proceedings and suggested alternative methods for respondents to manage costs in such litigations.

Orders