King v AG Australia Holdings Ltd (formerly GIO Australia Holdings Ltd) [2002] FCA 872

FEDERAL COURT OF AUSTRALIA

King v AG Australia Holdings Ltd (formerly GIO Australia Holdings Ltd)

[2002] FCA 872 PRACTICE AND PROCEDURE – Group proceedings – whether a respondent in group proceedings can communicate with unrepresented members of the group – whether leave or court approval is necessary or desirable before any written communication is sent – whether communication between the respondent and members of the group should only be in writing – whether there is a fiduciary relationship between the solicitors for the representative party and unrepresented members of the representative group. PRACTICE AND PROCEDURE – Group proceedings – settlement of individual claims – whether a respondent in group proceedings can make offers of settlement to individuals in the representative group – whether court involvement or approval is required – whether parties to a proceeding can reach settlement without the involvement of their legal representatives – whether the court can require that a portion of settlement monies be set aside for the payment of the representative party's legal costs – where unrepresented parties have chosen not to retain and sign a fee agreement with the representative party's solicitor. PRACTICE AND PROCEDURE – legal professional privilege – whether privilege was waived by the representative party's solicitor's reference to their instructions in an affidavit read in Supreme Court proceedings – extent of disclosure – whether it would be unfair to continue to assert the privilege in view of the extent of disclosure. PRACTICE AND PROCEDURE – leave to use affidavit and notice of motion filed in the Federal Court in contempt proceedings to be commenced in the NSW Supreme Court – whether leave is required – whether the contents of the documents were disclosed for the purposes of O 15 r 18 –whether the respondents wished to use the notice of motion and affidavit "in relation to the litigation in which they were disclosed" – whether anything said or done in Federal Court proceedings is immune from contempt proceedings in another jurisdiction – other issues affecting the exercise of the discretion. Federal Court of Australia Act 1976 (Cth), s 33V, s 33W, s 33ZF, s 33ZJ, Pt IVA, s 43(1A) Federal Court Rules O 15 r 18 King v GIO Australia Ltd (2000) 100 FCR 209 Duke of Bedford v Ellis [1901] AC 1 Sullivan v Pearson; ex parte Morrison (1864) LR 4 QB 153 The Hope (1883) 8 PD 144 Arthur J.S.Hall v Simons [1999] 3 WLR 873 Shepherd v Australian and New Zealand Banking Group Ltd (1996) 20 ACSR 81 McMullin v ICI Australia Operations Pty Ltd (Wilcox J, 27 November 1997, Unreported) Lopez v Star World Enterprises Pty Ltd [1999] FCA 104 Carnie v Esanda Finance Corporation Ltd (1995) 182 CLR 398 Mobil Oil Australia Pty Ltd v Victoria [2002] HCA 27 King v GIO Australia [2001] FCA 270 Femcare Ltd v Bright (2000) 100 FCR 331 followed Australian Competition and Consumer Commission v Chats House Investments Pty Ltd (1996) 71 FCR 250 Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355 Johnson Tiles Pty Ltd v Esso Australia Ltd (1999) 166 ALR 731 Williams v FAI Home Security Pty Ltd (No 4) [2000] FCA 1925 Burns Philp & Co Ltd v Bhagat [1993] 1 VR 203 Qantas Airways Ltd v Cameron (No 3) (1996) 148 ALR 378 Adelaide Steamship Co Ltd v Spalvins (1998) 81 FCR 360 Mann v Carnell (1999) 201 CLR 1 Springfield Nominees Pty Ltd v Bridgelands Securities Ltd (1992) 38 FCR 217 Central Queensland Cement Pty Ltd v Hardy [1989] 2 Qd R 509 Esso Australia Resources Ltd v Plowman (1995) 183 CLR 10 cited Australian Competition and Consumer Commission v Telstra Corporation Ltd (2000) 96 FCR 317 cited Ainsworth v Burdin [1999] NSWSC 793 cited Akins v Abigroup Ltd (1998) 43 NSWLR 539 cited Jamieson v The Queen (1993) 177 CLR 574 Riddick v Thames Board Mills Ltd (1977) 1 QB 881 followed Federal Class Actions, Contingency Fees, Rules Governing Litigation Costs, (1995) 21 Mon LR No 2 p 231 SHANE ROBERT KING v AG AUSTRALIA HOLDINGS LIMITED (FORMERLY GIO AUSTRALIA HOLDINGS LTD) (ACN 054 573 401), GRANT SAMUEL & ASSOCIATES PTY LTD (ACN 050 036 372), DAVID MORTIMER, BRUCE HOGAN, STEWART STEFFEY, RONALD ASHTON, MARINA DARLING, ANDREW KALDOR, LLOYD LANCE, DAVID O'HALLORAN AND IAN POLLARD N 955 OF 1999 MOORE J 11 JULY 2002