Smith v Commonwealth of Australia [2019] FCA 2193

Smith v Commonwealth of Australia [2019] FCA 2193

Procedural fairness does not demand in every case that parties are given the opportunity to comment on every material gathered by a referee. The adequacy of opportunity depends on all the circumstances and is not a fixed rule. The orders sought for communications to clarify referees' roles and to permit further contention statements were unnecessary as the detailed general procedures and the discretion of the referees are sufficient.

Parties
Applicant: Gavin Smith; Applicant: Kim Smith; Applicant: Ann and Lindsay Clout SMSF Pty Ltd ACN 154 516 006; Applicant: Ann Clout; Applicant: Lindsay Clout; Applicant: John Arthur Hewitt; Applicant: Marshalls Transport Pty Ltd; Applicant: Nicholas Marshall; Applicant: Melissa Marshall; Applicant: Bradley James Hudson; Applicant: Sharyn Danelle Hudson; Applicant: Meaties Pty Ltd ACN 113 651 755 as trustee for the BSTS Unit Trust; Applicant: Kirsty Bartlett; Applicant: Anthony Graig Bartlett; Respondent: Commonwealth of Australia; Shine Lawyers
Jurisdiction
Australia
Judgment Date
24 December 2019
Procedural Posture
Class Action / Interlocutory Application – Orders Sought Re Referee's Role
Outcome
Orders sought by the applicants at the interlocutory hearing refused.
Legal Topics
References to Referee, Procedural Fairness, Role of Referee, Class Actions, Procedural Orders
Practice and Procedure Administrative Law References to Referee Procedural Fairness Role of Referee Class Actions Procedural Orders

Case Brief

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Parties

Gavin Smith

Applicant

Kim Smith

Applicant

Ann and Lindsay Clout SMSF Pty Ltd ACN 154 516 006

Applicant

Ann Clout

Applicant

Lindsay Clout

Applicant

John Arthur Hewitt

Applicant

Marshalls Transport Pty Ltd

Applicant

Nicholas Marshall

Applicant

Melissa Marshall

Applicant

Bradley James Hudson

Applicant

Sharyn Danelle Hudson

Applicant

Meaties Pty Ltd ACN 113 651 755 as trustee for the BSTS Unit Trust

Applicant

Kirsty Bartlett

Applicant

Anthony Graig Bartlett

Applicant

Commonwealth of Australia

Respondent

Shine Lawyers

Procedural Posture

Class Action / Interlocutory Application – Orders Sought Re Referee's Role

Legal Issues

  1. 1 Whether procedural fairness requires that parties always have an opportunity to comment on new material gathered by a referee
  2. 2 Whether orders should be made clarifying the role of the referee
  3. 3 Degree of deference to be afforded to the referee in their conduct

Ratio Decidendi

Procedural fairness does not demand in every case that parties are given the opportunity to comment on every material gathered by a referee. The adequacy of opportunity depends on all the circumstances and is not a fixed rule. The orders sought for communications to clarify referees' roles and to permit further contention statements were unnecessary as the detailed general procedures and the discretion of the referees are sufficient.

Court Disposition

Orders sought by the applicants at the interlocutory hearing refused.

Orders

  • Orders 3, 4 and 5 sought by the applicants at the interlocutory hearing on 29 November 2019 are refused.
  • Parties are directed to send forthwith a copy of these reasons to counsel assisting the referees in all the references ordered in these proceedings.