Marks v GIO Australia Holdings Ltd [1999] FCA 1010

FEDERAL COURT OF AUSTRALIA

Marks v GIO [1999] FCA 1010 PRACTICE AND PROCEDURE – representative or class action – claims in contract and for misleading and deceptive conduct – most claims for relief dismissed at first instance – limited damages awarded for misleading and deceptive conduct – findings on liability at first instance unanimously upheld on appeal in Full Court – division of views in Full Court on damages – non-determination of cross appeal seeking wider relief rejected at first instance – award of damages set aside without the granting of alternative relief – remittal of one issue to trial judge by Full Court – applicant's appeal dismissed by High Court for different reasons among the Justices and all different to Full Court – no ruling by High Court as a court on the remitted question – whether any limitation on the power of first instance courts where a further hearing is ordered by an appellate court – whether fresh evidence admissible –relevance of whether remitted issue was argued at trial

COSTS – appropriate considerations when both parties have lost major issues at trial and contributed to costs and delays – little attempt by parties to work out interlocutory issues without recourse to court – confrontation preferred to compromise on small issues as well as on major issues Trade Practices Act 1974 (Cth) s 82, s 87 Federal Court of Australia Act 1976 (Cth) s 28(1)(c), Fair Trading Act 1987 (NSW)

Gates v City Mutual Life Assurance Society Ltd [1986] 160 CLR 1 Latoudis v Cacy [1990] 170 CLR 534; Australian Conservation Foundation v Forestry Commission (1988) 19 FCR 127, 79 ALR 685 Inn Leisure Industries Pty Limited (provisional liquidator appointed) v D F McCloy Pty Limited (No. 2) (1991) 28 FCR 172 National Mutual Life Association of Australia Ltd v Windsor [1991] 28 FCR 214 Marks & Ors v GIO Australia Holdings Ltd [1996] 63 FCR 304 Marks & Ors v GIO Holdings Ltd & Ors (No 2) [1996] 66 FCR 128 GIO Australia Holdings Ltd v Marks [1996] 70 FCR 559 Lynch v Howard [1980] 44 FLR 71 Schindler Lifts (Aust) Pty Limited v Debelak (1989) 89 ALR 272; 15 IPR 129 Commonwealth Bank of Australia v Quade [1991] 102 ALR 487 Bourke & Anor v Beneficial Finance Corporation [1994] 124 ALR 716 Marks v GIO Australia Holdings Ltd [1998] 158 ALR 333 Akins v National Australia Bank [1995] 10 LegRep SL3a Akins v National Australia Bank [1994] 34 NSWLR 155 Verna Trading Pty Ltd v New India Assurance Co Ltd [1991] 1 VR 129 Cretazzo v Lombardi (1975) 13 SASR 4 Austin v Ansett Transport Industries (Operations) Pty Ltd (Burchett J unreported 26 August 1993)