Ryan v Great Lakes Council - [1997] FCA 970

FEDERAL COURT OF AUSTRALIA

PRACTICE AND PROCEDURE - Representative proceedings - Proceedings against numerous respondents - Personal claim by representative party against only two respondents - Whether proceeding competently commenced against other respondents.

Federal Court of Australia Act 1976, ss 33C, 33D, 33Q and 33R

GRANT RYAN v GREAT LAKES COUNCIL, GRAHAM BARCLAY OYSTERS PTY LTD, CLIFT OYSTERS PTY LTD, M S VERDICH & SONS PTY LTD, CHEVY BAY PTY LTD, JARPAY PTY LTD, C & L COOMBES PTY LTD, M W & E A SCIACCA PTY LTD, TADEVEN PTY LTD, R A KING (WHOLESALE) PTY LTD, MANETTAS LIMITED and AUSSIE OYSTER DISTRIBUTORS PTY LTD

NG183 OF 1997

JUDGE: WILCOX J

DATE: 18 SEPTEMBER 1997

PLACE: SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NG183 of 1997

BETWEEN:

GRANT RYAN
APPLICANT

AND:

GREAT LAKES COUNCIL
FIRST RESPONDENT

GRAHAM BARCLAY OYSTERS PTY LTD
SECOND RESPONDENT

CLIFT OYSTERS PTY LTD
THIRD RESPONDENT

M S VERDICH & SONS PTY LTD
FOURTH RESPONDENT

CHEVY BAY PTY LTD
FIFTH RESPONDENT

JARPAY PTY LTD
SIXTH RESPONDENT

C & L COOMBES PTY LTD
SEVENTH RESPONDENT

M W & E A SCIACCA PTY LTD
EIGHT RESPONDENT

TADEVEN PTY LTD
NINTH RESPONDENT

R A KING (WHOLESALE) PTY LTD
ELEVENTH RESPONDENT

MANETTAS LIMITED
THIRTEENTH RESPONDENT

AND

AUSSIE OYSTER DISTRIBUTORS PTY LTD
FOURTEENTH RESPONDENT

JUDGE:

WILCOX J

DATE:

18 SEPTEMBER 1997

PLACE:

SYDNEY

REASONS FOR JUDGMENT

WILCOX J: This is a representative proceeding instituted pursuant to Part IVA of the Federal Court of Australia Act 1976. The applicant, Grant Ryan, sues on behalf of himself and all other persons who allegedly suffered injury between certain dates as a result of eating oysters, from the Wallis Lakes region on the north coast of New South Wales, contaminated with the Hepatitis A virus. The respondents are the Great Lakes Council, which is said to have certain responsibilities in regard to the water quality of the lake, oyster farmers who allegedly grew the affected oysters, and some oyster distributors.

Most of the respondents filed Notices of Motion seeking to have the proceeding dismissed as against them, or alternatively reconstituted in various ways. I heard these motions together on 19 August 1997. At the close of argument, I expressed my view that the motions raised valid objections to the form of the proceeding, as presently constituted; but I refrained from making any consequential orders. Instead, I stood the motions over until 8 October 1997. My purpose was to give the applicant an opportunity to consider whether he wished to propose amendments that might overcome the problems that had been exposed during the hearing. As I had discussed the matter with counsel during argument, at the time I did not record my reasons for agreeing with the substance of the various motions. However, I have since decided to do so. The applicant may wish to test my views on appeal. Also, similar issues have been raised in other representative proceedings, so there may be some general utility in articulating my reasons.

The…

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.

Keep reading for free

Create a free CaseChat account to read Ryan v Great Lakes Council and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [1997] FCA 970
Decision Date: 18 SEPTEMBER 1997

CaseChat Overview and Summary

In Ryan v Great Lakes Council, the applicant, Grant Ryan, filed a representative proceeding under Part IVA of the Federal Court of Australia Act 1976, on behalf of himself and other individuals who allegedly suffered injury from consuming contaminated oysters from the Wallis Lakes region in New South Wales. The respondents included the Great Lakes Council, oyster farmers, and oyster distributors. The respondents filed motions to dismiss the proceeding against them or to reconstitute it, arguing that the proceeding was not validly commenced against them. The primary issues before the court were whether the proceeding was properly commenced against respondents other than those against whom the applicant personally had a claim and whether the proceeding could be validly commenced against respondents where it did not yet appear that seven or more persons had claims against them.

The court held that under s 33C(1) of the Act, a representative proceeding can only be commenced against a person if seven or more persons have claims against that person. The court found that the applicant must have a personal claim against each respondent to utilize the Part IVA procedure against them. The court rejected the argument that once a representative proceeding is validly commenced against one respondent, it could be extended to include other respondents, even if the criteria of s 33C were not satisfied as to them. The court also held that the proceeding could not be validly commenced against respondents where it did not yet appear that seven or more persons had claims against them. The court noted that if it was possible to organise a separate Part IVA proceeding against a particular respondent using a different representative party, it might be appropriate to consolidate that proceeding with the current one.

The court stood the motions over until a later date to give the applicant an opportunity to consider whether he wished to propose amendments that might overcome the problems exposed during the hearing. The court emphasized that the parties should consider the appropriate course to take and would consider any application for orders when the matter was next before the court.

Orders