Case: Philip Morris (Australia) Ltd v Nixon [2000] FCA 229 ; (2000) 170 ALR 487
Outcome: referred to
More recent authority has restated and applied these principles: see, for example, Australian Automotive Repairers' Association (Political Action Committee) Inc v NRMA Insurance Ltd [2002] FCA 1568 at [14] - [17] ; Australian Wool Innovation Ltd v Newkirk [2005] FCA 290 ; [2005] ATPR 42-053 at 42,669-42,670. In the context of representative proceedings Sackville J has emphasised that applicants are obliged to plead adequately the case alleged by them "on their own behalf and on behalf of all members of the represented class " (emphasis in original): see Philip Morris (Australia) Ltd v Nixon [2000] FCA 229 ; (2000) 170 ALR 487 at 510. His Honour referred with approval to the earlier observation of Beaumont J in Cameron v Qantas Airways Ltd [1993] FCA 328 ; [1993] ATPR 41-251 at 41,370 which he paraphrased as follows: "it is axiomatic that a respondent in a representative proceeding, like the respondent in any proceedings, is entitled to the benefit of a properly pleaded case, so that a proper defence can be filed." 61 The second issue, raised by Qantas, relates to the construction of s 33C(1)(a) of the FCA Act . Section 33C(1)(a) conditions the commencement of representative proceedings, inter alia, on there being "7 or more persons [who] have claims against the same person." In Philip Morris (Australia) Ltd v Nixon [2000] FCA 229 ; (2000) 170 ALR 487 Sackville J (with whom Spender and Hill JJ agreed on this point) held (at 514) that " s 33C(1)(a) requires every applicant and represented party to have a claim against the one respondent or, if there is more than one, against all respondents." In Bray v F Hoffman-La Roche Ltd [2003] FCAFC 153 ; (2003) 130 FCR 317 Finkelstein J (at 371-374) expressed the view that s 33C(1)(a) did not impose a requirement that the applicant and the represented parties had to have a claim against all respondents where there were more than one. Carr J held (at 344-346) that, were it necessary for him to decide the point (which it was not), he would decline to follow Philip Morris . Branson J (at 358-9), held that Philip Morris should be followed because it was not clearly wrongly decided. In later cases the Court has applied Philip Morris , taking the view that the observations of Carr and Finkelstein JJ in Bray were obiter: see Johnstone v HIH Limited [2004] FCA 190 at [36] - [39] ; Guglielmin v Trescowthick (No 2) (2005) 220 ALR 515 at 521-522. 62 The applicant sought to meet Qantas's objection by submitting that Philip Morris ought not be followed and that, in any event, the applicant and the represented parties all had claims against all of the respondents for declarations, injunctions and damages. 63 It may be doubted that this response meets Qantas's objection. In both Johnstone and Guglielmin single judges held that they were bound to follow Philip Morris . In Bray Branson J held at (360-361) that the requirements of s 33C(1)(a) had not been satisfied notwithstanding the existence of claims made by the applicant and represented parties for declarations and injunctions against all respondents. Moreover, for reasons already given, the SASC does not plead an unambiguous damages claim against all respondents. It is also to be noted that it has been suggested that the word "claim" in s 33C(1)(a) is not, in any event, intended to refer to the relief sought by an applicant but rather to the material facts and the legal basis of the action: see Bray at 371-2 (per Finkelstein J). 64 In order for representative proceedings to be constituted properly a statement of claim must demonstrate that each of the conditions imposed by s 33C(1) has been satisfied: see Philip Morris at 514. If this is not done then the pleading is liable to be struck out although this is not an inevitable consequence if an amendment can cure the difficulty: see Bray at 361 (per Branson J).