Stacey Brothers Plumbing Pty Ltd v Waterco Limited [2009] FCA 438

FEDERAL COURT OF AUSTRALIA

Stacey Brothers Plumbing Pty Ltd v Waterco Limited [2009] FCA 438 PRACTICE AND PROCEDURE – respondent representative order sought against a franchisee as representative of other franchisees in respect of alleged patent infringements – application made to amend pleadings to expand the group to include persons who were not franchisees – whether proceeding should continue as a representative proceeding under O 6 r 13 of the Federal Court Rules – whether "same interest" and "numerous persons" criteria satisfied to enliven jurisdiction – lack of commonality of interest in the putative group and the representative – proceeding not to continue as representative proceeding – O 6 r 13 of the Rules does not allow amendment to expand group of represented persons

Federal Court Rules O 6 r 2, O 6 r 13, O 13 r 2 Duke of Bedford v Ellis [1901] AC 1 referred to Carnie v Esanda Finance Corporation Ltd (1995) 182 CLR 398 referred to Campbells Cash and Carry Pty Ltd v Fostif Pty Ltd (2006) 229 CLR 386 referred to Wong v Silkfield Pty Ltd (1999) 199 CLR 255 cited Trustees of the Roman Catholic Church for the Archdiocese of Sydney v Ellis (2007) 70 NSWLR 565 referred to BT (Australasia) Pty Ltd v New South Wales [1997] FCA 1553 referred to Taff Vale Railway Co v Amalgamated Society of Railway Servants [1901] AC 426 cited London Association for Protection of Trade v Greenlands Ltd [1916] 2 AC 15 cited John v Rees [1970] 1 Ch 345 cited Amos Removals & Storage Pty Ltd v Small [1981] 2 NSWLR 525 discussed Geelong Wool Combing Ltd v Textile, Clothing and Footwear Union of Australia (2003) 130 FCR 447 referred to Tony Blain Pty Ltd trading as Acme Merchandising v Jamison (1993) 41 FCR 414 cited EMI Records Ltd v Kudhail [1985] FSR 36 cited Irish Shipping Ltd v Commercial Union Assurance Co Plc [1991] 2 QB 206 referred to Mercantile Marine Service Association v Toms [1916] 2 KB 243 referred to Roche v Sherrington [1982] 2 All ER 426 referred to Hardie & Lane Ltd v Chiltern [1928] 1 KB 663 cited Minister for Industrial Development of Queensland v Taubenfeld [2003] 2 Qd R 655 referred to SZ v Minister for Immigration and Multicultural Affairs (2000) 172 ALR 172 followed Bright v Femcare Ltd (2002) 195 ALR 574 referred to STACEY BROTHERS PLUMBING PTY LTD v WATERCO LIMITED (ACN 002 070 733) and DENBY FALLS PTY LTD (ACN 064 991 555) (TRADING AS SWIMART BALWYN) (FOR AND ON BEHALF OF ITSELF AND AS A REPRESENTATIVE OF THE REPRESENTED PERSONS)