Lloyd v Belconnen Lakeview Pty Ltd

1. Judgment be entered for the applicant in the amount of $29,914.50 (comprising $23,379.50 plus interest up to the date of judgment in the amount of $6535).
2. Pursuant to s 33ZB of the Federal Court of Australia Act 1976 (Cth) (Act), the Court makes the findings and determines the questions identified in the Schedule to this order, and those findings and the answers to those questions bind the parties and all group members who have not opted out of the proceeding.
3. The representative proceeding against the second and third respondent be dismissed.
4. The first respondent pay one half of Mrs Lloyd's costs of the proceeding (other than the costs payable pursuant to order 5).
5. The interlocutory application of the first respondent filed on 6 April 2020 be dismissed with costs.
6. The costs payable pursuant to orders 4 and 5 be the subject of a lump-sum cost assessment to be conducted by a Registrar with such an assessment to be conducted in a manner which best facilitates the overarching purpose (see s 37M of the Act).
7. In the event that an appeal is not lodged, the parties have liberty to relist the proceeding by approaching the Associate to Justice Lee. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

LEE J: 1 On 20 December 2019, reasons for judgment were delivered in Lloyd v Belconnen Lakeview Pty Ltd [2019] FCA 2177 (Principal Judgment). There is now the requirement, pursuant to s 33ZB of the Federal Court of Australia Act 1976 (Cth) (Act), for the Court to make orders as to questions of fact and law that reflect those reasons and which will bind the parties and group members who have not opted out of the proceeding. The relevant findings and answers to those identified questions are contained in the Schedule to this judgment. The reasons that follow are not directed to the particular form of those orders, but concern a number of other issues that have arisen at the hearing. My reasons for making the s 33ZB orders in the form in which they have been made are evident from the transcript. In short, the terms of the orders made have been informed by a desire to maximise the utility of the s 33ZB procedure, while being conscious of: (a) the impossibility of determining individual group member cases which involve consideration of all the circumstances of the case; and (b) the limits in making orders of this type which have the effect of declarations: see Graham Barclay Oysters Pty Limited v Ryan [2002] HCA 54; (2002) 211 CLR 540 (Gummow and Hayne JJ at 590-1 [128]) and Dovuro Pty Limited v Wilkins [2003] HCA 51; (2003) 215 CLR 317 (Hayne and Callinan JJ at 363 [143]). 2 It is helpful to outline briefly the relevant procedural developments following the delivery of the Principal Judgment. In the ordinary way, the applicant (Mrs Lloyd) and respondents filed submissions concerning the proper form of the s 33ZB orders on 16 March 2020 and 6 April 2020, respectively. The first respondent (Belconnen) also filed an interlocutory application on 6 April 2020 seeking leave to, inter alia, "re-open" the proceeding in respect of Mrs Lloyd's claim for damages for loss of a commercial opportunity and an order declassing the proceeding pursuant to s 33N of the Act (notwithstanding that there had been no final orders made). 3 Further submissions were then advanced on either side in reply to the proposed s 33ZB orders, as well as on the merits of the application to "re-open", as to further common issues and the declassing of the proceeding. Belconnen then issued a Notice to Produce on 11 May 2020, to which Mrs Lloyd objected. In its outline of submissions in reply filed on 13 May 2020, Belconnen indicated that it did not press its application to "re-open". Belconnen did, however, maintain the application to declass the proceeding pursuant to s 33N of the Act, and, by way of a supplementary note filed on 14 May 2020, sought leave to amend its interlocutory application to seek an order dismissing the proceeding on the basis that the "jurisdictional requirement in s 33C(1)(c)" of the Act is no longer satisfied. 4 It is necessary to first comment on Belconnen's application to "re-open", which, as noted above, was ultimately not pressed. Supported by an affidavit of Mr McGregor filed on 6 April 2020, the interlocutory application set out in some detail a range of matters, including the fact that there had been a failure to address certain submissions advanced at the initial trial, thus occasioning a denial of procedural fairness. I noted to senior counsel for Belconnen at the commencement of the hearing, that in the present case, no orders had been made in relation to the proceeding. My reasons were only reasons and had not been the subject of the entry of any judgment or the making of any orders. Therefore, if Belconnen wished to put submissions or advance any argument as to matters that it contended had not been addressed in the reasons, it was free to do so and I had no difficulty with that opportunity being afforded and those issues being considered prior to the making of any orders. On one view, given the issue had been raised by Belconnen, it was not now just a matter for Belconnen, as I wished to ensure procedural fairness was afforded and that no argument had been left unaddressed before making a final determination and corresponding orders. However, the course adopted by Belconnen was to decline to advance any submissions as to the matters in respect of which it had made complaint. 5 Following this procedural rigmarole, the remaining issues for which reasons are to be provided can be categorised as follows: A the "section 33C application"; B the section 33N application; and C orders as to costs. 6 For simplicity and clarity, I adopt the terms defined in the reasons of the Principal Judgment.