Sreika v Cardinal Financial Securities Ltd [2000] FCA 1647

Sreika v Cardinal Financial Securities Ltd [2000] FCA 1647

The court has jurisdiction to permit amendment of existing pleadings to convert an individual proceeding into a representative proceeding, provided the requirements of s 33H are met, and it is not necessary to dismiss the proceeding and commence a fresh action.

Parties
Applicant: John Anthony Sreika; First Respondent: Cardinal Financial Securities Limited; Second Respondent: Phillip Wass; Third Respondent: Lyall Williams; Fourth Respondent: Steven Sereika; Fifth Respondent: W M Moyes; Sixth Respondent: Stapleton Partners Chartered Accountants; Seventh Respondent: Neil A Wilton; Eighth Respondent: Coopers & Lybrand (Securities) Ltd; Ninth Respondent: Australian Tea Tree Management Ltd; Tenth Respondent: Tea Tree Plantation Limited; Eleventh Respondent: Farm Finance Australia Pty Limited
Jurisdiction
Australia
Judgment Date
23 November 2000
Procedural Posture
Representative Proceeding / Application to Strike Out and Amend Pleadings
Outcome
Application and Statement of Claim struck out against all respondents; applicant given leave to amend; costs reserved on representative proceedings ground.
Legal Topics
Representative Proceedings, Power to Amend, Federal Court Act Part IVA, Strike Out Application
Civil Procedure Representative Proceedings Power to Amend Federal Court Act Part IVA Strike Out Application

Case Brief

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Parties

John Anthony Sreika

Applicant

Cardinal Financial Securities Limited

First Respondent

Phillip Wass

Second Respondent

Lyall Williams

Third Respondent

Steven Sereika

Fourth Respondent

W M Moyes

Fifth Respondent

Stapleton Partners Chartered Accountants

Sixth Respondent

Neil A Wilton

Seventh Respondent

Coopers & Lybrand (Securities) Ltd

Eighth Respondent

Australian Tea Tree Management Ltd

Ninth Respondent

Tea Tree Plantation Limited

Tenth Respondent

Farm Finance Australia Pty Limited

Eleventh Respondent

Procedural Posture

Representative Proceeding / Application to Strike Out and Amend Pleadings

Legal Issues

  1. 1 Whether an individual proceeding can be converted to a representative proceeding under Part IVA of the Federal Court of Australia Act 1976
  2. 2 Whether failure to comply with s 33H and Order 73 rule 3 requires dismissal or may be remedied by amendment

Ratio Decidendi

The court has jurisdiction to permit amendment of existing pleadings to convert an individual proceeding into a representative proceeding, provided the requirements of s 33H are met, and it is not necessary to dismiss the proceeding and commence a fresh action.

Court Disposition

Application and Statement of Claim struck out against all respondents; applicant given leave to amend; costs reserved on representative proceedings ground.

Orders

  • The Application and the Statement of Claim be struck out as against all respondents.
  • The applicant to pay the first and eighth respondents' costs thrown away as the result of the filing of those documents on an indemnity basis.