Hunter Valley Community Investments Pty Limited v Bell

REASONS FOR JUDGMENT 1 In these representative proceedings I granted leave on 9 August 2001 to the second, third and fourth applicants ("the remaining applicants") to file and serve a notice of discontinuance of the proceedings by 4.00pm on 10 August 2001. For quite proper reasons, the remaining applicants have not followed this course and accordingly the matter has come back to the Court. 2 The parties have pointed out that the Court's approval for discontinuation of the proceedings is required pursuant to s 33V(1) of the Federal Court of Australia Act 1978 (Cth) ("the Act"). They have also pointed out that a discontinuance with the leave of the court does not automatically result in a costs order in favour of the respondents (see Federal Court Rules O 22 rr 2(1)(d) and 3, and O 62 r 6). 3 Section 33ZB of the Act requires the Court to describe or otherwise identify group members who are affected by any "judgment" (which is defined in s 4 of the Act to include an order) given in the representative proceedings. 4 The remaining applicants again seek the leave of the Court to file a notice of discontinuance. They do not oppose the making of costs orders in favour of the respondents. They submit that the identification of the group members affected by the order granting leave and by any costs order should be made by reference to subparagraphs 2(b), (c) and (d) of the amended application filed in the proceedings. 5 It is necessary also to dispose of the proceedings insofar as they involve the first applicant, a company which is deregistered and has not been re-registered. As the remaining applicants point out, the proceedings do not abate merely by virtue of the de-registration of the first applicant and any cause of action theoretically vests in the Australian Securities and Investment Commission: see now Corporations Act 2001 (Cth), s 601AD(2). The remaining applicants submit that there is power under s 23 of the Act to make an order dismissing the proceedings brought by the first applicant, or alternatively removing the first applicant from the proceedings. 6 The respondents accept or do not dispute the general approach suggested by the remaining applicants. However, they actively seek a costs order in their favour. The second and third respondents also seek orders, pursuant to their outstanding motion, striking out the amended application and amended statement of claim insofar as relief is sought as against them. Having regard to the judgment delivered on 9 March 2001 and the failure of the remaining applicants to file and serve any further pleadings, I think it appropriate to make the orders sought by the second and third respondents. It is also appropriate to make a costs order against the remaining applicants 7 The orders I therefore make are the following: