Williams v FAI Home Security Pty Ltd (No 5) [2001] FCA 399

FEDERAL COURT OF AUSTRALIA

Williams v FAI Home Security Pty Ltd (No 5) [2001] FCA 399 REPRESENTATIVE PROCEEDINGS – Court approval of proposed settlement – whether settlement fair, reasonable and adequate having regard to interests of group members – whether appropriate to amend definition of group to provide a more limited class of members. TRADE PRACTICES – restraint of trade – provision requiring solicitors to enter into undertaking not to accept instructions to act – whether reasonable in interests of parties and public interest. Federal Court of Australia Act 1976 (Cth): Pt IVA, s 33V, s 33X

Esso Petroleum Co Ltd v Harper's Garage (Stourport) Ltd [1968] AC 269 referred to CSR Ltd v Rothfield (unreported, Hedigan J, SC of Vic, 3 April 1992) referred to TIMOTHY WILLIAMS and SUSAN WILLIAMS v FAI HOME SECURITY PTY LTD & ANOR (No 5) V 383 of 1999 GOLDBERG J 11 APRIL 2001 MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY V 383 of 1999

BETWEEN: TIMOTHY WILLIAMS and SUSAN WILLIAMS

Applicants

AND: FAI HOME SECURITY PTY LTD

(ACN 050 064 214)

First Respondent

FAI FINANCE PTY LTD

(ACN 053 262 561)

Second Respondent

JUDGE: GOLDBERG J

DATE: 11 APRIL 2001

PLACE: MELBOURNE

REASONS FOR JUDGMENT

Introduction 1 The applicants and the respondents have reached an agreement, subject to the approval of the Court, as to the terms upon which this proceeding is to be settled. The proceeding is brought pursuant to the provisions of Pt IVA of the Federal Court of Australia Act 1976 (Cth) ("the Act") and by virtue of the provisions of s 33V of the Act the proceeding cannot be settled or discontinued without the approval of the Court. 2 On 9 February 2001 the applicants filed a notice of motion in which they sought the following orders: "1. That pursuant to Section 33X of the Federal Court of Australia Act 1976 the Respondents be ordered to give notice of the proposed amendment of proceedings and proposed settlement of the amended proceedings in the form of the draft proposed notice annexed to the Affidavit of Vivian Waller sworn 9 February 2001 and filed herein. 2. That the Applicants be given leave to amend the Application in the form of the proposed amended Application exhibited to the Affidavit of Vivian Waller sworn 12 December 2000 and filed with the Court on 12 December 2000. 3. That pursuant to section 33 V of the Act the Court approve of the settlement of the proceedings as amended, in accordance with the terms of the proposed settlement of the amended proceedings exhibited to the Affidavit of Vivian Waller sworn 9 February 2001 and filed herein. 4. That the proceeding herein be dismissed with no order as to costs. …." The motion came on for hearing on 12 February 2001 and after hearing from the parties, I declined to make the orders sought until advertisements had been published in newspapers relating to the proposed amendment of the proceeding and the proposed settlement.