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
APPLICANTAND:
GREAT LAKES COUNCIL
FIRST RESPONDENTGRAHAM BARCLAY OYSTERS PTY LTD
SECOND RESPONDENTCLIFT OYSTERS PTY LTD
THIRD RESPONDENTM S VERDICH & SONS PTY LTD
FOURTH RESPONDENTCHEVY BAY PTY LTD
FIFTH RESPONDENTJARPAY PTY LTD
SIXTH RESPONDENTC & L COOMBES PTY LTD
SEVENTH RESPONDENTM W & E A SCIACCA PTY LTD
EIGHT RESPONDENTTADEVEN PTY LTD
NINTH RESPONDENTR A KING (WHOLESALE) PTY LTD
ELEVENTH RESPONDENTMANETTAS LIMITED
THIRTEENTH RESPONDENTAND
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…
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- Case
- [1997] FCA 970
- Decision Date
CaseChat Overview and Summary
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.
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