FEDERAL COURT OF AUSTRALIA Jarrama Pty Ltd v Caltex [2004] FCA 10 JARAMMA PTY LTD & ANOR V CALTEX AUSTRALIA PETROLEUM PTY LTD & ANOR V3 OF 2004 HEEREY J 12 JANUARY 2004 MELBOURNE IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY V3 OF 2004 BETWEEN: JARRAMA PTY LTD and ANOTHER APPLICANTS AND: CALTEX AUSTRALIA PETROLEUM PTY LTD and ANOTHER RESPONDENTS JUDGE: HEEREY J DATE OF ORDER: 12 JANUARY 2004 WHERE MADE: MELBOURNE THE COURT ORDERS THAT: 1. The hearing of 19 January 2004 be adjourned to 27 January 2004. 2. The applicants file and serve a detailed and particularised statement of claim on or before 19 January 2004. 3. The costs of the motion dated 9 January 2004 be the respondents' costs in the cause. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY V3 OF 2004 BETWEEN: JARRAMA PTY LTD and ANOTHER APPLICANT AND: CALTEX AUSTRALIA PETROLEUM PTY LTD and ANOTHER RESPONDENT JUDGE: HEEREY J DATE: 12 JANUARY 2004 PLACE: MELBOURNE REASONS FOR JUDGMENT 1 The respondents by a notice of motion dated 9 January 2004 seek a number of orders. The first is that the hearing scheduled for 19 January 2004 be adjourned to 27 January 2004. In fact 27 January was the initial return date when the application in this matter was filed on 2 January 2004. Indeed when the application was served it was accompanied by a letter from the applicants' solicitors which amongst other things stated: "We note that the return date is 27 January 2004, to enable you an opportunity to respond to our application and also for meaningful discussions to be commenced." 2 Apparently the applicants' solicitors, without informing the respondents, arranged with the Court to bring forward the hearing to 19 January. I am satisfied that this alteration would result in unreasonable hardship for the respondents and that there is no corresponding urgency which would warrant inflicting that change on the respondents. 3 The respondents' solicitors need to communicate with a number of the respondents' employees to deal with factual allegations in the applicants' material. Indeed, as already noted, that was a factor which the applicants initially recognised themselves. It appears from the affidavits of Mr Martin Garrett, sworn on behalf of the respondents, that there is only one site at which a co‑branded operation is to commence prior to the end of this month and that is in Yass, New South Wales, where there is no Caltex franchisee operating. If there are to be any other sites, according to Mr Garrett's information, they would be on commission sites for which 30 days' termination notice is required and no such notice has been served as at 9 January. 4 Insofar as the applicants are suffering financial loss over the period of eight days between 19 January and the initial return date, that would be compensable in damages should the applicants ultimately succeed. 5 The second order sought is that the applicants file and serve "a detailed and particularised statement of claim" on or before 19 January 2004. One of the grounds relied on for the making of this order is that s 33H of the Federal Court of Australia Act 1976 (Cth) requires certain matters to be set out in an application commencing a representative proceeding or a document filed in support of such an application. Those are the description of the group members to whom the proceeding relates, the nature of the claims made on behalf of the group and relief claimed, and the questions of law or fact common to the claims of group members. In fact all those matters are dealt with in the application. 6 However, another matter relied on by the respondents arises from O 4 r 6(1)(1A) of the Federal Court Rules. Order 6(1) provides for the filing with an application either of an affidavit or a statement of claim "whichever is appropriate". But subrule (1A) goes on to make a statement of claim mandatory in certain cases. It reads: "However, an applicant seeking to rely on an allegation of fraud, misrepresentation, breach of trust, wilful default or undue influence must file and serve a statement of claim." 7 Although counsel for the applicants does not dispute that a statement of claim may be required at some stage of the proceeding, I think it is clear that in a context of O 4 r 6 that where an allegation of, amongst other things, undue influence is made, the statement of claim must be filed and served at the outset and the option conferred by subrule (1) is correspondingly qualified. 8 In the present case the application clearly makes an allegation of undue influence (see par 4(b)(i)). I do not think the plain meaning of O 6 r (1A) should be read down to confine the operation of the rule to a pleading of the equitable cause of action of undue influence. What is important is the nature of the factual allegations made. 9 I should add, however, that I think it will be to the benefit of the applicants as much as the respondents if the nature of this case can be articulated as clearly as possible in a statement of claim. So I will make the orders sought in pars 1 and 2 of the notice of motion. 10 I propose to order that the costs of this application be the respondents' costs in the cause. If the respondents are successful they will carry the costs of today. If the applicants are successful they will not get their costs of today but they will not have to pay the respondent's costs. I think there was a failure to comply with the rules. Also, the unilateral alteration of the hearing date is another matter for which the applicants have to bear responsibility. I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Heerey. Associate: Dated: 22 January 2004 Counsel for the Applicants J W Kewley and J Graham Solicitors for the Applicants: Andma Legal Counsel for the Respondents: J H Karkar QC and T J P Walker Solicitors for the Respondents: Freehills Date of Hearing: 12 January 2004 Date of Judgment: 12 January 2004