Esposito v Commonwealth of Australia [2013] FCA 1039

Esposito v Commonwealth of Australia [2013] FCA 1039

Leave to amend the Originating Application and Statement of Claim was granted only to the extent of amendments setting out revised constitutional and related legal claims (including the acquisition of property, judicial review of the decision under the EPBC Act, and unjust enrichment); leave to amend to plead civil conspiracy and misrepresentation (and dependent claims) was refused on the basis of defective and insufficient pleading, and inability for those claims as pleaded to succeed. The Court directed amendment of the class definition and of common questions, required distribution and publication of the Opt Out Notice and Explanatory Memorandum, and made consequential orders for the...

Parties
Applicant: June Yvonne Esposito; Applicant: Margaret-Anne Hutton; Applicant: Daniel Walter Massaioli; Applicant: Sam De Maria; Applicant: Brian George Edward Smith; First Respondent: Commonwealth of Australia; Second Respondent: State of New South Wales; Third Respondent: Shoalhaven City Council; Fourth Respondent: Foundation for National Parks and Wildlife
Jurisdiction
Australia
Judgment Date
11 October 2013
Procedural Posture
Representative (class Action) Proceeding / Interlocutory Judgment on Amendment, Class Definition, and Notices in Advance of Trial
Outcome
Leave granted in part to amend pleadings; certain amendments refused; directions for future conduct of class action, notices, and pleadings. Costs in the proceeding.
Legal Topics
Pleadings Amendment, Representative Proceedings (class Actions), Acquisition of Property (constitution S 51(xxxi)), Opt Out Notice Requirements, Civil Conspiracy (torts), Striking Out Pleadings, Judicial Review, Unjust Enrichment, Misleading or Deceptive Conduct
Practice and Procedure Constitutional Law Administrative Law Pleadings Amendment Representative Proceedings (class Actions) Acquisition of Property (constitution S 51(xxxi)) Opt Out Notice Requirements Civil Conspiracy (torts) +4 more

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Parties

June Yvonne Esposito

Applicant

Margaret-Anne Hutton

Applicant

Daniel Walter Massaioli

Applicant

Sam De Maria

Applicant

Brian George Edward Smith

Applicant

Commonwealth of Australia

First Respondent

State of New South Wales

Second Respondent

Shoalhaven City Council

Third Respondent

Foundation for National Parks and Wildlife

Fourth Respondent

Procedural Posture

Representative (class Action) Proceeding / Interlocutory Judgment on Amendment, Class Definition, and Notices in Advance of Trial

Legal Issues

  1. 1 Should applicants be permitted leave to amend pleadings (Originating Application and Statement of Claim)?
  2. 2 Should an Opt Out Notice be provided to class members and in what form?
  3. 3 Should further discovery be ordered for applicants?

Ratio Decidendi

Leave to amend the Originating Application and Statement of Claim was granted only to the extent of amendments setting out revised constitutional and related legal claims (including the acquisition of property, judicial review of the decision under the EPBC Act, and unjust enrichment); leave to amend to plead civil conspiracy and misrepresentation (and dependent claims) was refused on the basis of defective and insufficient pleading, and inability for those claims as pleaded to succeed. The Court directed amendment of the class definition and of common questions, required distribution and publication of the Opt Out Notice and Explanatory Memorandum, and made consequential orders for the...

Court Disposition

Leave granted in part to amend pleadings; certain amendments refused; directions for future conduct of class action, notices, and pleadings. Costs in the proceeding.

Orders

  • Leave to amend Amended Originating Application and Statement of Claim as specified.
  • Refusal of further amendments (particularly to conspiracy and misrepresentation).