FEDERAL COURT OF AUSTRALIA
Rose v Essential Energy [2020] FCA 124
File number:
NSD 1958 of 2018
Judge:
MARKOVIC J
Date of judgment:
14 February 2020
Catchwords:
PRACTICE AND PROCEDURE – application for preliminary discovery – prospective representative proceeding based on a claim in negligence, nuisance and/or breach of s 60 of the Australian Consumer Law – whether reasonable belief in right to obtain relief in the form of damages for loss and damage suffered as a result of bushfire – where prospective respondent is a statutory state owned corporation that provided electricity to the prospective applicants – whether information sufficient to decide whether to start a proceeding – where applications were made seeking access to information under the Government Information (Public Access) Act 2009 (Cth) – where there may be a possible coronial inquiry – application granted
Legislation:
Competition and Consumer Act 2010 (Cth) Sch 2, s 60
Trade Practices Act 1974 (Cth) s 47
Federal Court Rules 2011 (Cth) r 7.23
Cases cited:
Australian Competition and Consumer Commission v Flight Centre Ltd (No 2) (2013) 307 ALR 209; [2013] FCA 1313
Castlemaine Tooheys Ltd v Williams & Hodgson Transport Pty Ltd (1985) 7 FCR 509
Commonwealth v Sterling Nicholas Duty Free Pty Limited (1972) 126 CLR 297
McFarlane as Trustee for the S McFarlane Superannuation Fund v IOOF Holdings Limited [2018] FCA 692
Optiver Australia Pty Ltd v Tibra Trading Pty Ltd (2008) 169 FCR 435
Pfizer Ireland Pharmaceuticals v Samsung Bioepis AU Pty Ltd (2017) 257 FCR 62
Date of hearing:
17 and 25 June 2019
Registry:
New South Wales
Division:
General Division
National Practice Area:
Commercial and Corporations
Sub-area:
Commercial Contracts, Banking, Finance and Insurance
Category:
Catchwords
Number of paragraphs:
162
Counsel for the Applicants:
Mr S Habib SC
Solicitor for the Applicants:
Mr B Petrovski of William Roberts Lawyers
Counsel for the Respondent:
Mr H Pintos-Lopez
Solicitor for the Respondent:
Mr C Wood of Sparke Helmore Lawyers
ORDERS
NSD 1958 of 2018
BETWEEN:
LAWRENCE JAMES ROSE
Prospective First Applicant
SUSAN ELIZABETH ROSE
Prospective Second Applicant
AND:
ESSENTIAL ENERGY ABN 37 428 185 226
Prospective Respondent
JUDGE:
MARKOVIC J
DATE OF ORDER:
14 february 2020
THE COURT ORDERS THAT:
1. Pursuant to r 7.23 of the Federal Court Rules 2011 (Cth) (Rules) the prospective respondent give discovery to the prospective applicants of the documents and categories of documents identified in Annexure A to these Orders.
2. Pursuant to r 7.25 of the Rules the prospective respondent file and serve on the prospective applicants a list of documents in accordance with r 20.17 of the Rules on a date to be determined by agreement between the parties or, if the parties cannot agree, by the Court. If the parties cannot agree, liberty is given to any party to relist the matter on two days’ notice for determination of the date on which the list of documents is to be filed and served.
3. The parties are to agree on the dates for and manner…
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- AGLC
- Rose v Essential Energy [2020] FCA 124
- Case
- [2020] FCA 124
- Decision Date
CaseChat Overview and Summary
The central legal issue before the court was whether the applicants had demonstrated a reasonable belief that they could obtain relief in the form of damages for bushfire-related losses, and whether the requested discovery was relevant and necessary for the potential proceeding. The court also considered whether the requested information was sufficient to determine whether to proceed with the proposed litigation. Additionally, the court had to assess the implications of a possible coronial inquiry on the application for discovery.
In its decision, the court found that the applicants had provided sufficient information to warrant the commencement of a proceeding. The court concluded that the requested discovery was relevant and necessary to the potential proceeding and granted the application for preliminary discovery. The court ordered that Essential Energy provide the specified documents to the applicants, with instructions for the manner and timing of document inspection and submissions on costs. The court emphasised that the decision was based on the current state of the evidence and was not a determination on the merits of the potential proceeding.
The orders issued by the court mandated that Essential Energy provide the specified documents to the applicants, with a list of documents to be filed and served on the applicants. The parties were instructed to agree on the dates and manner of inspection of the discovered documents, with provisions for relisting the matter if agreement could not be reached. Furthermore, the court set deadlines for the applicants and Essential Energy to submit their respective cost submissions, with the possibility of determining the cost issue on the papers if no oral hearing was requested.
Orders
Orders of the court
1. Pursuant to r 7.23 of the Federal Court Rules 2011 (Cth) (Rules) the prospective respondent give discovery to the prospective applicants of the documents and categories of documents identified in Annexure A to these Orders.
2. Pursuant to r 7.25 of the Rules the prospective respondent file and serve on the prospective applicants a list of documents in accordance with r 20.17 of the Rules on a date to be determined by agreement between the parties or, if the parties cannot agree, by the Court. If the parties cannot agree, liberty is given to any party to relist the matter on two days’ notice for determination of the date on which the list of documents is to be filed and served.
3. The parties are to agree on the dates for and manner of inspection of the discovered documents. If the parties cannot agree, liberty is given to any party to relist the matter on two days’ notice for further orders concerning inspection.
4. Within seven days of the date of these Orders the prospective applicants are to file and serve any submissions, not exceeding four pages in length, in relation to the question of the costs of the provision of the discovery the subject of Order 1 and of this application.
5. Within 14 days of the date of these Orders the prospective respondent is to file and serve its submissions, not exceeding four pages in length, in relation to the question of costs of the provision of the discovery the subject of Order 1 and of this application.
6. If neither party requests that there be an oral hearing, the question of costs of the provision of the discovery the subject of Order 1 and of this application will be determined on the papers.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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