Jenkins, E. v. NZI Securities Australia Ltd & Ors [1994] FCA 678

JUDGMENT No. 025, 2H CATCHWORDS

PRACTICE AND PROCEDURE - separate trial of certam issues - issues affecting

other group members deferred - making of declaration - whether properly made.

PRACTICE AND PROCEDURE - trial of separate issues - whether all issues in fact

tried - new trial.

Trade Practices Act 1974, s. 52 Federal Court of Australia Act 1976, part IVA

Amann Aviation Pty Ltd v The Commonwealth (1990) 22 FCR 527 aff (1991) 174 CLR Driclad Pty Limited v Federal Commissioner of Taxation (1968) 121 CLR 45 Camilla Cotton Oil Co. v Granadex SA [1976] 2 Lloyd's Rep 10 Poseidon Ltd v Adelaide Petroleum NL (1994) 68 ALJR 313

BEAUMONT, GUMMOW & CARR JJ SYDNEY 21 SEPTEMBER 1994

IN THE FEDERAL COURT

OF AUSTRALIA

NEW SOUTH WALES

DISTRICT REGISTRY

GENERAL DIVISION No. NG90 of 1994

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN: ELLEN JENKINS Appellant

and

NZI SECURITIES AUSTRALIA LTD

NZI CAPITAL CORPORATION LTD

MICHAEL EDWARD WAYLAND Respondents

CORAM: BEAUMONT, GUMMOW & CARR JJ PLACE: SYDNEY

DATE: 21 SEPTEMBER 1994 MINUTE OF ORDERS THE COURT ORDERS THAT:

(1) The appeal be allowed.

(2) Declaration (a) and order (2) made on 7 January 1994 be set aside.

(3) | There be a new trial to be held concurrently with the tnal of all remaining untried issues between all parties to the proceeding, but subyect to such further directions as may be given by a Judge of the Court.

(4) | The cross-appeal be dismissed, with no order as to costs.

(5) | The respondents pay the costs of the appellant of the appeal.

(6) Order (3) made on 7 January 1994, to the extent that it remains on foot after the orders made 22 July 1994 on appeal No. NG41 of 1994, be set aside.

(7) Costs of the trial with respect to the issues agitated on this appeal abide the