The Owners - Strata Plan No 87231 v 3A Composites GmbH (No 5) [2020] FCA 1576

The Owners - Strata Plan No 87231 v 3A Composites GmbH (No 5) [2020] FCA 1576

Questions 44, 45 and 46 were not shown to be common questions for the initial trial. They were incomplete formulations of the statutory tests in s 74D of the TPA and s 54 of the ACL, and the proper application of those provisions requires consideration of circumstances of the particular supply to each consumer, such as price, packaging or label statements, and other relevant circumstances relating to the supply. Those circumstances may differ between group members, so the questions cannot be answered solely by reference to facts common to all group members.

Jurisdiction
Australia
Judgment Date
30 October 2020
Procedural Posture
Representative Proceeding Pursuant to Pt IVA of the Federal Court of Australia Act 1976 (cth) Concerning Consumer Law Claims About Aluminium Composite Panels / Interlocutory Case Management Issue Concerning Proposed Merck Orders and Identification of Common Questions for the Initial Trial
Outcome
The Court was not persuaded that disputed questions 44, 45 and 46 were, or were likely to be, common questions that could be determined at the initial trial. The parties were directed to provide draft orders reflecting the findings.
Legal Topics
['merck Orders' 'common Questions in Representative Proceedings' 'merchantable Quality' 'acceptable Quality Guarantee' 'australian Consumer Law' 'trade Practices Act']
['consumer Law' 'practice and Procedure' 'representative Proceedings'] ['merck Orders' 'common Questions in Representative Proceedings' 'merchantable Quality' 'acceptable Quality Guarantee' 'australian Consumer Law' 'trade Practices Act']

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Procedural Posture

Representative Proceeding Pursuant to Pt IVA of the Federal Court of Australia Act 1976 (cth) Concerning Consumer Law Claims About Aluminium Composite Panels / Interlocutory Case Management Issue Concerning Proposed Merck Orders and Identification of Common Questions for the Initial Trial

Legal Issues

  1. 1 ['Whether questions 44, 45 and 46 proposed by the Applicant should be included in the Merck order as common questions for the initial trial.' 'Whether the statutory tests in s 74D of the Trade Practices Act 1974 (Cth) and s 54 of the Australian Consumer Law can be answered without reference to individual group member circumstances or the circumstances of each supply.' 'Whether the proposed questions were incomplete because they did not address all statutory considerations and exceptions in s 74D of the TPA and s 54 of the ACL.']

Ratio Decidendi

Questions 44, 45 and 46 were not shown to be common questions for the initial trial. They were incomplete formulations of the statutory tests in s 74D of the TPA and s 54 of the ACL, and the proper application of those provisions requires consideration of circumstances of the particular supply to each consumer, such as price, packaging or label statements, and other relevant circumstances relating to the supply. Those circumstances may differ between group members, so the questions cannot be answered solely by reference to facts common to all group members.

Court Disposition

The Court was not persuaded that disputed questions 44, 45 and 46 were, or were likely to be, common questions that could be determined at the initial trial. The parties were directed to provide draft orders reflecting the findings.

Orders

  • ['Within two weeks of the date of this order, the parties should provide the Court with draft orders reflecting the findings made in this judgment.']