Lowe v Mack Trucks Australia Pty Ltd [2001] FCA 388

Lowe v Mack Trucks Australia Pty Ltd [2001] FCA 388

Because the 7 June 2000 self-executing orders were made in a representative proceeding without the Court considering whether notice should be given to group members, and because dismissal could prejudice group members by reviving limitation periods, the injustice flowing from those orders should be removed by setting aside paragraphs 1 and 2 nunc pro tunc from 28 July 2000 rather than by extending time for compliance with an order the applicants conceded they could not perform. The applicants' solicitors were on notice of the serious defects in the 28 July 2000 motion and persisted without curing them, justifying indemnity costs payable forthwith for that motion.

Jurisdiction
Australia
Judgment Date
06 April 2001
Procedural Posture
Representative Proceeding Under Part IVA of the Federal Court of Australia Act 1976 (cth) Seeking Damages and Compensation, Including Under the Trade Practices Act 1974 (cth) / Hearing of Notice of Motion Dated 18 December 2000 Concerning Extension of Time, Setting Aside Self Executing Orders, Notice to Group Members, and Costs
Outcome
Paragraphs 1 and 2 of the Deputy Registrar's order made 7 June 2000 were set aside to operate from 28 July 2000; the further hearing was adjourned; notice to group members was ordered; and Slater & Gordon was ordered to pay specified costs, including indemnity costs payable forthwith for the 28 July 2000 motion.
Legal Topics
['self Executing Orders' 'guillotine Orders' 'extension of Time' 'notice to Group Members' 'interlocutory Orders' 'indemnity Costs Payable Forthwith']
['practice and Procedure' 'representative Proceedings' 'costs'] ['self Executing Orders' 'guillotine Orders' 'extension of Time' 'notice to Group Members' 'interlocutory Orders' 'indemnity Costs Payable Forthwith']

Case Brief

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Procedural Posture

Representative Proceeding Under Part IVA of the Federal Court of Australia Act 1976 (cth) Seeking Damages and Compensation, Including Under the Trade Practices Act 1974 (cth) / Hearing of Notice of Motion Dated 18 December 2000 Concerning Extension of Time, Setting Aside Self Executing Orders, Notice to Group Members, and Costs

Legal Issues

  1. 1 ["Whether time should be extended for compliance with the Deputy Registrar's self-executing order where the applicants accepted they could not file a tenable amended statement of claim." "Whether paragraphs 1 and 2 of the Deputy Registrar's order of 7 June 2000 should be set aside." 'Whether a self-executing order should have been made in a representative proceeding without consideration of notice to group members.' "Whether Slater & Gordon should pay the respondent's costs of the defective 28 July 2000 motion on an indemnity basis and forthwith."]

Ratio Decidendi

Because the 7 June 2000 self-executing orders were made in a representative proceeding without the Court considering whether notice should be given to group members, and because dismissal could prejudice group members by reviving limitation periods, the injustice flowing from those orders should be removed by setting aside paragraphs 1 and 2 nunc pro tunc from 28 July 2000 rather than by extending time for compliance with an order the applicants conceded they could not perform. The applicants' solicitors were on notice of the serious defects in the 28 July 2000 motion and persisted without curing them, justifying indemnity costs payable forthwith for that motion.

Court Disposition

Paragraphs 1 and 2 of the Deputy Registrar's order made 7 June 2000 were set aside to operate from 28 July 2000; the further hearing was adjourned; notice to group members was ordered; and Slater & Gordon was ordered to pay specified costs, including indemnity costs payable forthwith for the 28 July 2000 motion.

Orders

  • ['Par 1 of the order made 30 November 2000 be varied, pursuant to O 35, r 7(3) by substituting for the date "7 July 2000", the date "7 June 2000".' "Par 2 of the order made 29 March 2001, setting aside pars 1 and 2 of the Deputy Registrar's order made 7 June 2000, operate on and from 28 July 2000." 'The further...