McMullin, Brian & Anor v ICI Australia Operations Pty Ltd & Ors (No. 6) [1998] FCA 658

McMullin, Brian & Anor v ICI Australia Operations Pty Ltd & Ors (No. 6) [1998] FCA 658

Although s 33Z(1)(g) did not authorise a procedural order closing the class, s 33ZF(1) gave the Court power to fix a date by which group members had to identify themselves where that was appropriate or necessary to ensure justice in the proceeding. Because limitation periods were suspended and individual damages claims meant the proceeding could otherwise remain unresolved indefinitely, it was fair to require notice by direct mail and advertisements and to fix 31 August 1998 as the last date for notification of claims.

Jurisdiction
Australia
Judgment Date
12 June 1998
Procedural Posture
Representative Proceeding / Reasons for Judgment on Procedural Application to Require Group Members to Identify Themselves by a Cut Off Date After Liability and Some Damages Claims Had Been Determined
Outcome
The Court held that it had power under s 33ZF(1) to make an order having the effect of closing the class and made orders for notices, advertisements and service of a list of represented claimants.
Legal Topics
['closing the Class' 'group Member Identification' 'notice to Group Members' 'limitation Periods in Representative Proceedings' 'federal Court Powers in Representative Proceedings']
['practice and Procedure' 'representative Proceedings'] ['closing the Class' 'group Member Identification' 'notice to Group Members' 'limitation Periods in Representative Proceedings' 'federal Court Powers in Representative Proceedings']

Case Brief

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Procedural Posture

Representative Proceeding / Reasons for Judgment on Procedural Application to Require Group Members to Identify Themselves by a Cut Off Date After Liability and Some Damages Claims Had Been Determined

Legal Issues

  1. 1 ['Whether the Federal Court had power to make an order requiring unidentified group members in a representative proceeding to identify themselves by a particular date or lose or be inhibited from maintaining a claim for damages.' 'Whether the power to make such an order arose under s 33Z(1)(g) or s 33ZF(1) of the Federal Court of Australia Act 1976.' 'Whether, as a matter of discretion, the Court should require notice by post and advertisement and fix a final date for notification of claims.']

Ratio Decidendi

Although s 33Z(1)(g) did not authorise a procedural order closing the class, s 33ZF(1) gave the Court power to fix a date by which group members had to identify themselves where that was appropriate or necessary to ensure justice in the proceeding. Because limitation periods were suspended and individual damages claims meant the proceeding could otherwise remain unresolved indefinitely, it was fair to require notice by direct mail and advertisements and to fix 31 August 1998 as the last date for notification of claims.

Court Disposition

The Court held that it had power under s 33ZF(1) to make an order having the effect of closing the class and made orders for notices, advertisements and service of a list of represented claimants.

Orders

  • ['The Applicants on or before 30 June 1998 at the reasonable cost of the Respondents send by prepaid post to each person listed on a Department of Primary Industry or the Department of Agriculture data base as having had CFZ residues in cattle other than specified excluded persons a notice in the form "A" annexed to...