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Federal Court of Australia |
Last Updated: 1 May 2001
Williams v FAI Home Security Pty Ltd (No 5) [2001] FCA 399
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 |
UPON the first and second respondents, by their counsel, undertaking that they will within twenty-one days of the date of this order send a letter of offer substantially in the form of Schedule A to this order to each of the eighty-eight persons set out in Schedule B to this order at their respective address therein set out.
1. The applicants have leave to amend the application in accordance with the proposed amended application in the form of Schedule C to this order.
2. Pursuant to s 33V of the Federal Court of Australia Act 1976 (Cth) ("the Act") the settlement of this proceeding (as amended in accordance with par 1 of this order) is approved.
3. The respondents give notice that the proceeding has been settled and has been dismissed by placing an advertisement in a size at least 20cm x three columns in the form of Schedule D to this order on or before 14 May 2001 in the best possible position in each of The Australian, the Herald Sun (Melbourne), The Canberra Times (Canberra), The Daily Telegraph (Sydney), The Courier Mail (Brisbane), The West Australian (Perth), The Advertiser (Adelaide), The Mercury (Hobart), The Examiner (Launceston) and the Northern Territory News (Darwin) newspapers.
THE COURT DECLARES THAT:
4. Pursuant to s 33ZF of the Act, the persons who are bound by the settlement of the proceeding are the respondents and the persons whose names are set out in Schedule 1 to the amended application referred to in paragraph 1 of this order.
THE COURT FURTHER ORDERS THAT:
5. The proceeding is dismissed with no order as to costs.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules
SCHEDULE A
We act for FAI Home Security Pty Limited ("FHS") and FAI Finance Corporation Pty Limited ("FFC").
On 22 February 2001, the Court ordered that notification of a proposal to settle the Class Action be given by placing a notice titled "Notice of Proposed Settlement of Class Action - FAI Home Security Alarms" in newspapers.
In response to that notice, you contacted Maurice Blackburn Cashman, the solicitors for the applicants in the Class Action, and stated that you objected to the proposed settlement. The basis of your objection, as communicated to Maurice Blackburn Cashman, was that you claimed to be a group member in the Class Action but had not been included in the proposed settlement. Your objection was communicated to the Court.
On 18 April 2001, the Court made orders approving the settlement and dismissing the Class Action. The Court also ordered publication of a notice titled "Notice of Settlement of Class Action - FAI Home Security Alarms" in newspapers. A copy of this notice is attached. The Court made the orders after FHS and FFC gave an undertaking to the Court that they would, within 21 days of the date of the orders, make an offer of settlement in identical terms to you and 87 other identified group members who had contacted Maurice Blackburn Cashman to object to the proposed settlement.
To comply with that undertaking, FHS and FFC now make the following offer to you. You can accept this offer by signing a copy of this letter where indicated below. You will be taken to have accepted this offer when we receive a copy of this letter signed by you where indicated. This offer is irrevocable.
The terms of the offer, which will become the terms of a contract between you and FHS and FFC if you accept this offer, are as follows:
1. In consideration of your agreement to the things described in paragraph 2, FHS and FFC will pay you a total of $1,000 within 28 days of acceptance of this offer, provided that:
(a) if you have a debt outstanding to FFC at that date, then the $1,000, will be applied in reduction of that debt and the balance of the amount of $1,000 after it has been applied in reduction of that debt (if any) will be paid to you;
(b) if you did not purchase an Alarm System between 9 July 1993 and 9 July 1999 or finance the purchase of the Alarm System by entering into a contract with FFC, neither FHS nor FFC will be under any obligation to make any payment to you, or apply any amount in reduction of any debt you may owe to FFC.
2. By accepting this offer, you agree to release each of FHS and FFC from all claims (however they arise) in respect of any alleged statements, representations or warranties made to you by any person in connection with your purchase of the Alarm system to the effect that the Alarm system was:
(i) the latest technology available;
(ii) the best on the market;
(iii) for sale at much less than comparable systems.
3. You must not take any steps to give publicity to this offer, or any contract formed if you accept this offer.
4. In this letter:
"Alarm System" means an alarm system identified by the names `Security Guard I' or `Security Guard II'.
"Class Action" means Federal Court of Australia proceeding number V383 of 1999.
"Court" means the Federal Court of Australia.
SCHEDULE B
Name |
Address |
|---|---|
Abarca, Christian |
49 Liverpool Drive KEYSBOROUGH VIC 3173 |
Aberdeen, Bruce & Christine |
15 Noarlung Crescent BONYTHON ACT 2905 |
Ahern, Dale, & Vears Pauline |
1/38 Golden Avenue CHELSEA VIC 3196 |
Aquino, Marta & Adolfo |
36 Cockburn Crescent FAIRFIELD NSW 2165 |
Auty, Philip |
1 Lobeial Street ALBION PARK RAIL NSW 2527 |
Baker, Elaine & Walter |
1240 Grevillea Road WENDOUREE VIC 3355 |
Berry, Jason & Delwin |
63 Ponmel Crescent EPPING VIC 3076 |
Bethune, Julie & Daryl |
15 Raglan Street BACCHUS MARSH VIC 3340 |
Biffen, Nicholas & Jeannett |
1 Morgan Way GIRRAWHEEN WA 6064 |
Blomfield, David & Lynette |
55 Corona Lane GLENNING VALLEY NSW 2261 |
Bossman, Peter |
24 Ruskin Avenue CROYDON VIC 3136 |
Bowering, Andrew |
15 Wattle Street FULLARTON SA 5063 |
Bunker, Stephen |
8 Quarry Road UPPER FERNTREE GULLY VIC 3156 |
Buxey , John & Nash, Beverley |
26 Brock Street EURORA VIC 3666 |
Carson, Shirley |
39 Amarina Avenue MOOLOOLABA QLD 4557 |
Collins, John & Silvia |
14 Chippendall Street SPEERS POINT NSW 2284 |
D'Andrea, Jerry & Bruna |
404 Williamstown Road PORT MELBOURNE VIC 3207 |
D'Cruz, Antionette & Park, Heung |
6/182 Elizabeth Street CROYDON NSW 2132 |
Degenhardt, Rod |
51 Ruthuen Way RINGWOOD EAST VIC 3135 |
Dougherty, Kevin & Lisa |
2 Clarke Street BASS HILL NSW 2197 |
Ferguson, Peter |
118 Salmon Street HASTINGS VIC 3915 |
Filo, Pamela & Isitolo |
9 Mafna Street Honeysuckle Estate SEASPRAY VIC 3851 |
Finch, Margaret |
70 Clifton Street PROSPECT SA 5082 |
Gali, Wendy & Michael |
34 Ternes Road UPWEY VIC 3158 |
Garrapa, Wilfredo |
6 Arthur Street ST ALBANS VIC 3020 |
George, John & Karen |
48 Gordon Street BOWEN QLD 4805 |
Gould, Shane & Rosemary |
6 Degaris Lane ROXBURGH PARK VIC 3064 |
Goulter, Roslyn |
12 Tawonga Street MEADOW HEIGHTS VIC 3047 |
Groves, Kirsta & Hippisley, Mark |
38 Edwards Drive ALTONA MEADOWS VIC 3028 |
Hammond, Peter & Janet |
35 Elizabeth Street BURRADOO NSW 2576 |
Hannagan, Betty |
3 Bon Court NARRE WARREN VIC 3804 |
Hay, Susan & Gregory |
1 Handley Court COLAC VIC 3250 |
Healey, Graham & Cariglio, Lisa |
27 Cary Street TORONTO NSW 2283 |
Hicks, Brett |
19 McQuarry Road FENNELL BAY NSW 2283 |
Hooper, Shaun & Nicola |
7 Taringha Street BLAXLAND NSW 2774 |
Howard, Darren & Margaret |
16 Judd Road LEWISTON SA 5501 |
Howard, Leonard & Atholie |
8 Diruwa Drive SALISBURY NORTH SA 5108 |
Innes, Brett |
Unit 2 7 Beverly Crescent LARA VIC 3212 |
Island, Erroll |
5 Coral Street MEDOWIE NSW 2318 |
Jahn, Dale & Jane |
60 Laura Avenue BELMONT VIC 3216 |
Johnson, Brett & Dianne |
11 Rosemount Court WODONGA VIC 3690 |
Kerin, Peter |
24 Adelaide Street BASS HILL NSW 2197 |
King, John |
17 Kananook Crescent BELMONT NORTH NSW 2280 |
Kretzschmar, Kathleen |
10 Hatherley Grove NORTH ALTONA VIC 3025 |
Lourens, Evaruderus (& Wife) |
22 Ivana Crescent FRANKSTON VIC 3199 |
Lucas, Maxine |
14 Gwenda Terrace PARA HILLS SA 5096 |
Lucy, William & Violet |
2 Fantail Close BUSSELTON WA 6280 |
MacDonald, David & Auditory Jayne |
28 Havelock Street BENDIGO VIC 3550 |
Madwin, Mark |
7 Becket Street GLENROY VIC 3046 |
Main, George & Pamela |
42 Bridge Street CESSNOCK NSW 2325 |
McDonald, Katherine |
6 Longford Crescent ACACIA RIDGE QLD 4110 |
McKenzie, Robert |
25 Hazelwood Road MORWELL VIC 3840 |
Mcqueen, Lynne & Lutu, Temo |
65 Oak Street MOREE NSW 2400 |
Messine, Juan |
17 Quarrion Court HOPPERS CROSSING VIC 3029 |
Mitchell, Adrian & Hemi |
1 Imre Court BAXTER VIC 3911 |
Morgan, Grant |
10 Barilla Court CRANBOURNE VIC 3977 |
Nelson, Cheryl |
1/456 West Tamar Road RIVERSIDE TAS 7250 |
Nugent, Joanne |
135 Famford Road ENOGGERA QLD 4051 |
Paul, Sally-Anne |
3 Holland Grove CAULFIELD NORTH VIC 3161 |
Phelan, William |
30 Hawkes Road WARRANDYTE VIC 3113 |
Philipou, George |
19 Gould Street DEER PARK VIC 3023 |
Powney, William & Kelly Anne Deen |
22 Panjil Grove LAKES ENTRANCE VIC 3909 |
Purcell, John & Liza |
211 Peter Street WARNAMBOOL VIC 3280 |
Qereqeretabua, Luke |
372 Stoney Creek Road KINGSGROVE NSW 2208 |
Quinn, Mr & Mrs |
8 Criterion Crescent DOONSIDE NSW 2767 |
Ritchie, Donna |
33 Cambridge Street WEST LAUNCESTON TAS 7250 |
Rosley, Dean & Belz, Andrea |
8 Warrick Grove TEMPLESTOWE VIC 3106 |
Rowley, Kenneth & Dawn |
26 Tinberry Drive DUBBO NSW 2830 |
Seaton, Darren & Knight, Lucinda |
28 Boundary Road KINCUMBER NSW 2251 |
Smith, Lisa & Camp, Paul |
11 Joy Street MORWELL VIC 3841 |
Tate, Carolin & Adam |
16 Forrest Street DROUIN VIC 3818 |
Taylor, Graham |
3 Tarwin Street BOOLARRA VIC 3870 |
Thistlethwaite, Jennifer |
16 Hawkesbury Road WERRIBEE VIC 3030 |
Tomich, Paul & Linda |
6 Lucerne Crescent KARINGAL VIC 3199 |
Todd, Allan |
Box 490 RAYMOND TERRACE NSW 2324 |
Tucker, Chris |
205 Eureka Street BALLARAT VIC 3350 |
Twyford, Mark |
24 Brisbane Street BOWEN QLD 4805 |
Van Der Pole, Johannas & Peita |
7 Pantawarrah Street BALCOLYN NSW 2264 |
Vella, Joseph & Natasha |
11 Ronsand Place YANDEBUB WA 6164 |
Vocke, Chris |
27 Prethewie Street RAWENSWOOD TAS 7250 |
Wall, Anne |
13 Holden Crescent TRARALGON VIC 3844 |
Ward, Warren & Jenny |
120 Perserverance Road VISTA SA 5091 |
Weis, Brian |
Lot 8 MacIntyre Road PORTLAND VIC 3305 |
Westlake, Anthony |
11 Dorado Street ERSKINE PARK NSW 2759 |
White, Jim |
18 Railway Terrace HOVE SA 5048 |
Willis, Malcolm & Nida |
43 Kevin Street DECEPTION BAY QLD 4508 |
Witney, Jeff & Cynthia Ann |
13 Coral Court CLIFTON SPRINGS VIC 3222 |
Woods, Kevin |
17 McCabe Crescent HOLT ACT 2615 |
SCHEDULE C
IN THE FEDERAL COURT )
OF AUSTRALIA ) No. V383 of 1999
VICTORIA DISTRICT REGISTRY )
B E T W E E N :
TIMOTHY WILLIAMS AND SUSAN WILLIAMS
Applicants
FAI HOME SECURITY PTY LTD
First Respondent
(A.C.N. 053 262 561)
Second Respondent
AMENDED APPLICATION
1. This application is brought by the applicants as the representative party pursuant to Part IVA of the Federal Court of Australia Act 1976 (Cth) and pursuant to sections 52, 53(a), 53(e), 73, 74A, 74G and 82 of the Trade Practices Act 1974 (Cth) ("the Act").
Filed By: MAURICE BLACKBURN CASHMAN
Lawyers Ref: VW/25232701
550 Swanston Street
CARLTON VIC 3053 Tel: 9345.2700
Fax: 9347.6284
AUSDOC, D.X. 466
The group members to whom this proceedings relates ("the group members") are those persons
(a) who, on or after 9 July 1993, entered into sales contracts to
purchase either of two home alarm systems supplied by the first
respondent
("FAI Security") and known respectively as the "Security Guard I" ("the first
home alarm system") and the "Security Guard
II" ("the second home alarm
system");
(b) who, on or after 9 July 1993, entered into loan contracts with the
second respondent ("FAI Finance") to finance the purchase of
the first home
alarm system or the second home alarm system;
(c) to whom words were said ("the representations") in respect of the
first home alarm system or the second home alarm system, as
the case may be, to
the effect that the system was:
(i) the best on the market;
(ii) the latest technology available;
(ii) for sale at much less than comparable systems;
(d) who acting on the faith of the representations entered into the
said sales contracts and loan contracts; and
(e) who thereby suffered loss and damage.
2. As at the date of filing this application the number of group members exceeds seven as required by s.33C of the Federal Court of Australia Act 1976 (Cth).
3. On the grounds set out in the Statement of Claim, the applicants claim for themselves and as representative of the group members the following relief:
AGAINST THE FIRST RESPONDENT
A. Damages pursuant to s.82(1) of the Trade Practices Act 1974 ("the Act").
B. In the alternative to A., compensation pursuant to s. 74G of the Act.
C. Further in the alternative, damages at common law for negligent misstatement.
AGAINST BOTH RESPONDENTS
D. Damages pursuant to s.73 of the Act.
E. Interest pursuant to statute.
F. Any such further or other orders as the Court deems just.
4. The questions of law or fact common to the claims of the applicants and the group members are the following:
(a) whether the representations were made in trade or commerce;
(b) whether the representations were false;
(c) whether making the representations constituted conduct that was misleading or deceptive or likely to mislead or deceive within the meaning of s.52 of the Act;
(d) whether the representations were made in connection with the supply or possible supply of goods or services within the meaning of s.53(a), alternatively s.53(e) of the Act;
(e) whether the making of the representations amounted to a false representation that the alarm systems were of a particular value, in contravention of s.53(a) of the Act;
(f) whether the representations were false or misleading representations with respect to the price of goods, in contravention of s.53(e) of the Act;
(g) whether FAI Security was involved in the said contraventions within the meaning of s.82(1) of the Act;
(h) whether FAI Security is deemed for the purposes of Division 2A of Part V of the Act to have manufactured the alarm systems;
(i) whether FAI Security, in trade and commerce, supplied the alarm systems to the distributors who acquired the alarm systems for resupply;
(j) whether the representations constituted an express warranty within the meaning of section 74A(1) of the Act;
(k) whether the express warranty was given or made in connection with the supply of the alarm systems or in connection with the promotion of the supply or use of the alarm systems;
(l) whether the express warranty was made by FAI Security;
(m) whether FAI Security had at all material times a duty to ensure that any statement made to the consumers concerning the qualities, uses, performance, characteristics or value of the alarm systems was accurate;
(n) whether FAI Security failed to take any or any reasonable steps to ensure that the statements made to consumers were accurate;
(o) whether FAI Finance was a linked credit provider of the FAI Security, within the meaning of S.73 of the Act;
(p) whether the loan contracts were tied loan contracts within the meaning of section 73(14) of the Act.
FILED on behalf of the applicants
DATED this day of 2001
.....................................................................
MAURICE BLACKBURN CASHMAN
SOLICITORS FOR THE APPLICANTS AND THE GROUP MEMBERS
SCHEDULE 1
Adelman, Len & Tollemachie Rosemarie
4/8 Ellis Street
CHATSWOOD NSW 2067
Agius, Jeff
PO Box 2392
SMITHFIELD NSW 2164
Agrawaal, Satish
10 William Street
CONDELL PARK NSW 2200
Allgood, Jennifer
8 Davidson Avenue
KILLARNEY VALE NSW 2261
Allmond, Caroline
PO Box 731
VIRGINIA SA 5120
Allsopp, Craig & Allsopp Debbie
21 Packard Place
HORNINGSEA PARK NSW 2171
Amrich, Marlene
Unit 1
17 Bowdens Road
HADSPEN TAS 7290
Anand, Dev
25 Botany Boulevard
KINGS LANGLEY NSW 2147
Andersen, Donna
21 Blanche Street
ARDEER VIC 3022
Anderson, Astrid
Unit 2
219 President Avenue
MONTEREY NSW 2217
Anderson, John
1 Morton Street
EAST MAITLAND NSW 2323
Antic, Sonia
6 Turnstone Court
CARRUM DOWNS VIC 3201
Arndt, Jim
118A Golda Avenue
SALISBURY QLD 4107
Arnold, Deborah & Arnold Stephen
101-111 Hawkins Road
JIMBOOMBA QLD 4280
Arnold, Chris & Arnold Jackie
8 Wild Avenue
REYNELLA EAST SA 5161
Ashton, Mike & Ashton Mandy
PO Box 617
RYDE NSW 2112
Axford, Andrew & Axford Julieanne
2 Pratt Court
MELTON VIC 3337
Azzopardi, Godwin & Azzopardi Yvonne
27 Mowbray Crescent
MELTON VIC 3337
Bailey, Susan
9 Oakfield Court
BAYSWATER VIC 3153
Baker, Ken
88 Albion Street
WARWICK QLD 4370
Baker, Ivan & Baker Margaret
4 Grimes Road
POINT LONSDALE VIC 3225
Baldock, Naomi
Unit 3
No 9 Clifton Street
CAMDEN PARK SA 5038
Bannerman, Shane & Foo Kylie
5 George Street
WANGARATTA VIC 3677
Barbara, Caroline
50 Ducansby Crescent
ST ANDREWS NSW 2566
Barbera, Kelly
35 Wattle Street
KIRWAN QLD 4817
Barko, Larrisa
Block 54
Yelta Road
MERBEIN VIC 3505
Barsby, Bill
1 Vim Street
MELTON VIC 3337
Bartolo, Jim & Bartolo June
29 Dallas Court
WYNN VALE SA 5127
Barton, Thomas
9 Clubb Street
KARRINYUP WA 6018
Bartsch, Mark
5 Caleb Virgo Court
NURIOOTPA SA 5355
Basa, Vilma
39 Claremont Crescent
HOPPERS CROSSING VIC 3029
Bassett, Desmond & Bassett Paula
5 Sevenoaks Lane
BLAKEVIEW SA 5114
Bechaz, Jodie & Broadbent Steven
12 Loch Street
YARRAGON VIC 3823
Beere, Rosemary
1959 Glenelg Highway
SCARESDALE VIA BALLARAT VIC 3352
Bell, Dean
29 Kathleen Parade
PICNIC POINT NSW 2213
Bell, Gordon & Bell Joy
1 O'Shea Court
SEYMOUR VIC 3660
Bell, John
21 Queens Road
LAKE MUNMORAH NSW 2259
Benham, Rodney
213 Whitelaw Avenue
DELACONE VIC 3356
Bennett, Frank & Bennett Lee
PO Box 1084
MILDURA VIC 3502
Bennett, Penny
3 Gorda Place
SECOMBE GARDENS SA 5047
Benzel, Mario
7 Rodney Avenue
NORTH COBURG VIC 3058
Binns, Andrew
14 Scone Street
PERTH TAS 7300
Birch, Adam
1013 Raglan Street
WALLAN VIC 3756
Bird, Nicki
45 Heather Drive
CHRISTIE DOWNS SA 5164
Blake, Anthony & Blake Catherine
9 Zoeller Drive
PARKWOOD QLD 4214
Boldt, Linda
35 Houston Street
STAWELL VIC 3380
Bolton, Peter & Bolton Michelle
10 Irma Grove
PASCOE VALE VIC 3044
Bonaudi, Joseph
5 McKeon Circuit
DANDENONG VIC 3175
Bond, Patrick
PO Box 87
ROSEDALE VIC 3847
Bonehill, Peter
20 Risson Street
MELTON SOUTH VIC 3338
Booth, Tony & Booth Heidi
6 High Street
BATHURST NSW 2795
Boxhall, Philip
PO Box 386
KEMPSEY NSW 2440
Bray, Geoffrey & Bray Judith
PO Box 17
DUBBO NSW 2830
Brett, Angela
PO Box 536
WOODEND VIC 3442
Brierley, Thomas & Parker Kristy
18 Greenslopes Drive
MOOROOLBARK VIC 3138
Brooke, Brendan
26 North Leigh Avenue
CRAIGIEBURN VIC 3064
Brookes, David
8 Amy Street
CAMBERWELL VIC 3124
Brooks, Geoffrey & King Marni
13 Steen Crescent
POORAKA SA 5095
Brown, Stanley & Brown Catherine
123 William Webb Drive
McKELLAR ACT 2617
Brown, Ken
48 Bayley Drive
TRARALGON VIC 3844
Brown, Zona
5 Liggins Road
HAZELBROOK NSW 2279
Brown, Kylie
2 Sunburst Court
MOOROOLBARK VIC 3138
Bruce, Margherita
1268 Botany Road
BOTANY NSW 2019
Bruniera, Gino
PO Box 1122
IRYMPLE VIC 3498
Bucik, Melanie
1A Pevensey Grove
MILDURA VIC 3500
Buckle, Bill
13 Hillview Avenue
ROWVILLE VIC 3718
Buckley, Dianne
19 Etheridge Street
MITTAGONG NSW 2572
Buckley, Beth
16 Malbec Place
ESCHOL PARK NSW 2558
Buick, Scott & Patterson Sharon
33 Finsterwald Way
FAIRVIEW PARK SA 5126
Bull, Nigel
3 Boulder Crescent
HAZELBROOK NSW 2279
Burgess, Don & Burgess Ruth
10 Brightwaters Close
BRIGHTWATERS NSW 2264
Calderbank, Dennis & Calderbank Sue
38 Hartland Way
WARNBRO WA 6169
Cameron, Lisa
14 Tuppal Place
EAST KEILOR VIC 3033
Campbell, Deborah
7 McDonald Drive
WINCHELSEA VIC 3241
Carrington, Lynda
5 Cronin Court
GLENORCHEY TAS 7010
Chamma, Justine
42 Duncansby Cresecent
ST ANDREWS NSW 2566
Chandler, John & Chandler Elisabeth
49 Merindah Road
BAULKHAM HILLS NSW 2153
Cherry, Patricia
Estate of the late Lorraine Gibbs by her executor Patricia Cherry
42 Nulla Nulla Lane
HINTON NSW 2323
Chirgwin, David
1 Bellmoral Court
BLAKEVIEW SA 5114
Ciminelli, Jose
51 Fitzharding Crescent
EVATT ACT 2617
Ciuffetelli, Riccardo & Ciuffetelli Julie-Ann
11 Babinda Place
ISABELLA PLAINS ACT 2905
Cklamovski, Louie & Cklamovski Lily
25 Manorhouse Boulevard
QUAKERS HILL NSW 2763
Clark, Thomas & Clark Nellie
18 Pine Mountain Road
RAYMOND HILL QLD 4305
Clarke, Susan
7 Plane Tree Drive
MILDURA VIC 3500
Clarke, Alisha
89 Jasmine Drive
MILL PARK VIC 3082
Clement, Duncan & Clement Lynette
29 Meadowbank Drive
DUBBO NSW 2830
Clifton, Frank
12 Irma Grove
PASCOE VALE VIC 3044
Clissold, Stewart
2 Murrays Road
PIRRON YALLOCK VIC 3249
Clode, Stewart & Clode Heather
35 Denovan Circuit
CALWELL ACT 2905
Coleman, Simon
3 Margaret Street
NEWTON VIC 3220
Condon, Russell & Jones Helena
PO Box 1335
CHARTERS TOWERS QLD 4820
Conroy, Julie
58 Bonds Road
ROSELANDS NSW 2196
Cook, Norman
1 Olive Place
MACQUARIE FIELDS NSW 2564
Cook, Barry & Cook Diane
11 Donald Drive
SAFETY BAY WA 6169
Cook, Terrence & Cook Faye
7 Cluews Street
DUBBO NSW 2830
Cooper, Katherine
15 Murphy Road
DONCASTER EAST VIC 3109
Cooper, Steven
7 Croydon Avenue
DEER PARK VIC 3023
Corcoran, Grant & Corcoran Sandra
42 Catalina Avenue
PARAFIELD GARDENS SA 5107
Corton, Allan
2/7 Neptune Street
REVESBY NSW 2212
Cotter, Trevor
161 Victoria Street
DOULWICH HILL NSW 2203
Cowan, Stephen & Parsons Nicolle
No 2 Roberts Parade
HAWKESBURY HEIGHTS NSW 2777
Cox, Margaret
618 Armstrong Street North
BALLARAT VIC 3350
Cridland, Kevin & Cridland Dot
24 James Street
HOWARD QLD 4659
Cripps, Donna
1247 Mamre Road
KEMPS CREEK NSW 2171
Critcher, Russ & Critcher Margaret
30 Blackbutt Way
BARRACK HEIGHTS NSW 2528
Cross, Brendon & Cross Maree
8 Shebler Place
MELTON VIC 3337
Crowe, Simon & Crowe Alison
9 Netley Street
BALD HILLS QLD 4036
Czajka, Jenny
1 Veitch Place
EASTERN BEACH GEELONG VIC 3220
Daniels, Jann
4 Howe Street
MURRUMBEENA VIC 3163
Davis, Roger & Davis Julie
113 Railway Parade
LEURA NSW 2780
Davis, Paul
1 Lock Drive
SWAN HILL VIC 3585
De Boer, Philip
44 Mt Pleasant Road
MONBULK VIC 3793
De Fazio, Luca & De Fazio Angelique
Unit 1
63 Patterson Street
RINGWOOD EAST VIC 3135
De-Vries, Otto
4 Larkins Road
SALISBURY DOWNS SA 5108
Dell, Brady & Dell Jacqueline
8 Elio Drive
PARALOWIE SA 5108
Deluca, Frank
PO Box 40
CARDROSS VIC 3496
Dias, Libano & Dias Yvonne
7 Douglas Court
GREENSBOROUGH VIC 3088
Dichiera, Joanne & Dichiera Cosimo
5 Murray Avenue
RED CLIFFS VIC 3496
Dickinson, Cynthia
4 Canobolas Place
YARRAWARRAH NSW 2233
Difford, John & Difford Janice
9 Brightwaters Close
BRIGHTWATERS NSW 2264
Dodd, Serena
22 Wilson Street
HIGHETT VIC 3190
Donald, Jeff
51 Wheeler Cct
KIRWAN QLD 4817
Dorrington, Rosalind
186 Tallebudgera Drive
PALM BEACH QLD 4221
Douglas, Stephen & Douglas Kathleen
37 Dawn Drive
SEVEN HILLS NSW 2147
Downey, Max & Downey Nancy
70 Cobborah Road
DUBBO NSW 2830
Dragstra, Sharon
16 McBain Court
LONGFORD WA 6147
Drechsler, Shona & Frew Paul
260 Carpenter Street
BENDIGO VIC 3550
Duffin, Paula
5 Honeyeater Retreat
BROOKDALE WA 6112
Duse, Rosie
11 Lee Street
CRAIGIEBURN VIC 3064
Dybing, Laurie
3 Eldon Place
WAMBERAL NSW 2260
Dyer, Jacquie
48 Admirals Crescent
TAYLORS LAKES VIC 3038
Eady, Reginal & Eady Kathleen
2/10 Scribbly Gum Close
SAN REMO NSW 2262
Eccles, Neville & Eccles Carol
6 Mountview Avenue
BEVERLY HILLS NSW 2209
Edwards, Victor & Edwards Christine
4 Buna Place
ALLAMBIE HEIGHTS NSW 2100
Egan, Dean
12-10 Bank Street
MEADOW BANK NSW 2124
Eggins, Pamela
Townhouse 11
14 Fraser Street
MACQUARIE FIELDS NSW 2564
Elms, Joyce
Box 713
MILDURA VIC 3502
Eskaf, Marie
Unit 11
1 Stacey Street
BANKSTOWN NSW 2200
Evans, Sally
67 Wellard Road
CALISTA WA 6167
Evans, Carolyne
36 Sanderling Cresecent
MORNINGTON VIC 3931
Ewart, Fred
Unit 22
No 27 Beachburra Road
BAYSWATER WA 6053
Falconer, Tanya & Williams Paul
69 Metala Road
PARALOWIE SA 5108
Falzon, Lucy
55 Cresser Street
ALTONA NORTH VIC 3025
Fanale, Aaron
8 Sauvage Place
DOONSIDE NSW 2767
Farthing, Lauren
10 Hawdon Avenue
WERRINGTON NSW 2747
Faull, Johnaton
PO Box 4310
EAST GOSFORD NSW 2250
Fazio, Anthony
45 Daniel Street
BURWOOD VIC 3125
Federer, Justin
9 Hancey Avenue
NORTH ROCKS NSW 2151
Fink, Francis & Fink Marie
9 Carpenter Street
MAFFRA VIC 3860
Finlayson, Paul & Finlayson Marleen
73 Cowra Road
COWRA NSW 2794
Finlow, Sue
298 Hyde Street
YARRAVILLE VIC 3013
Fitzpartrick, Veronica
PO Box 3429
MANUKA ACT 2603
Fitzpatrick, Amanda
13 Silkwood Avenue
BERWICK VIC 3806
Fletcher, Trevor & O'Leary-Fletcher Amanda
14 Warren Road
PARA VISTA SA 5093
Fletcher, Kaye
1 Bethany Court
NOARLUNGA DOWNS SA 5168
Fong, Dennis
209/82 Abercrombie Street
CHIPPENDALE NSW 2008
Fooks, Catherine
119 Nepean Street
GREENSBOROUGH VIC 3088
Forbes, Simon & Forbes Nicole
13 Rodney Avenue
MOUNT CLEAR VIC 3350
Forster, Colin
48 Bayview Avenue
TENDY POINT VIC 3984
Fotopoulos, George
15 Walker Street
MURRUMBEENA VIC 3163
Gale, Lorraine
PO Box 225
GORDON VIC 3345
Garay, Marcelo
15 St Helena Parade
EASTLAKES NSW 2018
Gare, Andrew & Gare Rachael
5 Bunburung Close
NGUNNAWAL ACT 2913
Garland, Jeannie
39 The Wool Road
BASIN VIEW NSW 2540
Gathercole, Ross & Gathercole Genevieve
9 Canberra Avenue
MILDURA VIC 3500
Gay, Nola
131 Cooper Street
STAWELL VIC 3380
Gelonesi, Tania & Gelonesi Tony
90 Lexcen Avenue
NICHOLLS ACT 2931
Gerrey, Judy
460 Griffith Road
LAVINGTON NSW 2641
Goldsmith, Leanne & Goldsmith Steve
31 Minnek Close
GLENMORE PARK NSW 2745
Gorey, Marie
2 Cristabale Crescent
MINDARIE WA 6030
Gorman, Jeanette
Unit 1
201 Cumberland Road
AUBURN NSW 2144
Grant, Colin
162 Spencer Street
WEST ESSENDON VIC 3040
Green, Amanda
113 Maxwell Road
INGLE FARM SA 5098
Green, Valma
113 Dougharty Road
WEST HEIDELBERG VIC 3081
Green, Aileen
101 Paradise Beach Road
SANCTUARY POINT NSW 2540
Grenfell, Terry
PO Box 2
SANDERSON NT 0813
Griffiths, Rebecca & Eckhardt Jason
5/103 Edward Street
ORANGE NSW 2800
Guisasola, Marisia
PO Box 484
BALWYN NORTH VIC 3104
Haddrick, Lindsay
7 Flude Avenue
BRIDGEWATER TAS 7030
Halfpenny, Kelly
24 Ceres Street
KINGSWOOD PARK NSW 2750
Haller, John & Haller Pam
100 Dallas Drive
DALLAS VIC 3047
Hamley, Austin & Johnson Dee
81 Montrose Road
MONTROSE VIC 3765
Hamp, Eva
5 Wanera Way
MILDURA VIC 3500
Hanson, Graham & Hanson Margaret
Box 198
RED CLIFFS VIC 3496
Harman, John
36 Manning Clarke Road
MILL PARK VIC 3082
Harris, Steve & Harris Kellie
14 Francis Street
HORSHAM VIC 3400
Harrison, Ross
58 Kings Road
HYDE PARK QLD 4812
Hart, Geoffrey
65 Walker Avenue
KANWAL NSW 2259
Hartwig, Pamela
22 Jillian Street
CRANBOURNE VIC 3977
Hay, Amanda
PO Box 449
UNANDERRA NSW 2526
Hayes, Carol
42 Baggott Drive
HOPPERS CROSSING VIC 3029
Hayward, Margaret
6 Mallee Street
GATES HEAD WEST NSW 2290
Hayward, Anthony & Cracknell Teresa
Flat 2
10 Gwendeline Street
MOUNT GAMBIER SA 5290
Head, Michelle
5 Jacobs Street
SPRINGTON SA 5235
Healy, Brian & Healy Yvonne
4 Westmere Cresecent
COOLAROO VIC 3048
Height, Ray & Height Ana
PO Box 703
NOWRA NSW 2541
Hone, Ian
77 Benjamin Street
SUNSHINE VIC 3030
Hornsby, Paul
6 Dampier Crescent
MILDURA VIC 3500
Horswell, Wayne & Horswell Priscilla
4 Gregory Terrace
LAPSTON NSW 2773
Houston, Robert & Houston Cheryl
130 Old Castlehill Road
CASTLE HILL NSW 2154
Humphreys, John & Lister Jannice
74 Resolution Drive
CENTENARY PARK QLD 4869
Hunnisett, Tony & Hunnisett Michelle
51 Dibbs Street
LISMORE NSW 2480
Hunt, Peter & Hunt Joanne
57 Kookora Street
GRIFFITH NSW 2680
Hunter, Colin
114 Young Road
LAMBTON NSW 2299
Hunter, Gail
PO Box 58
MORISSET NSW 2264
Hurley, Christopher
1 Bertell Place
CHAPMAN ACT 2611
Hutchinson, Wendy
76 Bombay Street
LIDCOMBE NSW 2141
Hyde, Kim
14 Ferris Street
DROUIN VIC 3818
Imeson, Lynette
PO Box 1159
TOWNSVILLE QLD 4810
Indlekofer, Janet
1 Burrawong Crescent
ELDERSLIE NSW 2570
Ironside, Stuart & Stitt (Ironside) Joleen
1443 Upper Ross River Road
KELSO QLD 4815
Irvin, Philip & Thompson Jolene
34 Milyerra Road
KARIONG NSW 2250
Ivany, Amy
11/8 Landale Avenue
CROYDON VIC 3136
Jackson, Shaun
30 Suthwark Avenue
SALISBURY HEIGHTS SA 5109
Jeanes, Marcus
13 Mahogany Drive
MILDURA VIC 3500
John, Ian & John Maxine
55 Carrington Street
ST MARYS NSW 2760
Johnson, Ian
34 York Street
BONBEACH VIC 3196
Johnston, Dawn
LBM 1069
c/- Landbase Australia Locked Bag 25
GOSFORD NSW 2250
Johnston, Lisa
Unit 1
33 Nepean Highway
ELSTERNWICK VIC 3185
Jones, Daniel
PO Box 3023
NORTH NOWRA NSW 2541
Jones, Matthew & Stafford Kelly
192 Highgate Street
COOPERS PLAINS QLD 4108
Jones, Brian & Jones Dianne
5 Colquhoun Street
STAWELL VIC 3380
Jory, Angela
c/- 45 Daniels Street
BURWOOD VIC 3125
Kaganovich, Tony
5 Decostella Drive
BLACKTOWN NSW 2148
Kampe, Karl & Kampe Shadeda
20 Fricker Avenue
GREENSBOROUGH VIC 3088
Kavouras, Joanna
3 Latham Street
NORTHCOTE VIC 3070
Keating, Paul
Lot 29 No 8 Douglas Close
MINERS REST VIC 3352
Kelly, Troy
8 Laxton Crescent
BELMONT NORTH NSW 2280
Kelly, Lynda
24 Jacana Avenue
NARARA NSW 2250
Kemp, Elizabeth
11 Hillside Drive
ALBION PARK NSW 2527
Kemp, Christine
61 Geoffry Thomas Drive
BUCASIA QLD 4750
Kerr, Jeannie
11 Queens Road
RAILWAY ESTATE QLD 4810
Kerr, Don & Mulley Sue
52 Eleventh Avenue
RAILWAY ESTATE QLD 4810
King, Andrew & King Sonya
12 Shebler Place
MELTON VIC 3337
Kozar, Olivia
Unit 2
11 Burnett Street
EAST ST KILDA VIC 3182
Kriewaldt, Jane
109 One and All Drive
NORTH HAVEN SA 5018
Kundid, Zelko
1 Dalbury Place
MILL PARK VIC 3082
Lahey, Gregory & Lahey Natasha
52 Maple Avenue
MOONAH TAS 7009
Lambert, Brad & Lambert Joyce
58 North Street
DUBBO NSW 2830
Lamers, John & Lamers Susanne
560-7 Drain Road
CATANI VIC 3981
Lampi, Jari
20 Darcy Street
BACCHUS MARSH VIC 3340
Lane, Julie
159 Purnell Road
CORIO VIC 3214
Lang, William & Lang Janelle
93 Armadale Street
ABERMAIN NSW 2326
Larpent, Greg & Larpent Rebecca
14 Taylor Road
MOOROOLBARK VIC 3138
Laskaridis, Helen
9 Cohuna Court
EAST BURWOOD VIC 3151
Latham, Paul & Latham Elisabeth
42 Station Street
WEST RYDE NSW 2114
Latham, Gerald
2/14 Normanby Avenue
THORNBURY VIC 3071
Lee, Philip
55 Denise Street
LAKE HEIGHTS NSW 2502
Lester, Yolanda & Lester Anthony
9 Third Avenue
NEW NORFOLK TAS 7140
Lewis, Kenneth
164 Hall Street
SPOTSWOOD VIC 3015
Lindsay, Muriel
40 Ruby Avenue
MILDURA VIC 3500
Lintzos, Penny
6 Evans Street
SCORESBY VIC 3179
Lithotomos, Peter
3 Valarie Court
VERMONT SOUTH VIC 3133
Liversidge, Iris
66 Dallas Drive
DALLAS VIC 3047
Lloyd, Frank
2 Clangula Court
ENDEAVOUR HILLS VIC 3802
Loizides, Peter
14 Edward Street
SYLVANIA HEIGHTS NSW 2224
Long, Katrina
22 Sturt Street
BOURKE NSW 2840
Loriente, Trish
6 McAree Court
ALTONA MEADOWS VIC 3028
Lowe, Julie
2/77 Derby Street
PASCOE VALE VIC 3044
Ludlow, Craig
3 Forbes Place
EIGHT MILE PLAIN QLD 4113
Lukschanderl, Jodi
46 Denis Street
MITCHAM VIC 3132
Lyon, June
10 Milford Grove
ROSANNA VIC 3084
Madden, Paul & Madden Michelle
46 Olivebank Road
FERNTREE GULLY VIC 3156
Maggio, Nick & Maggio Denise
55 Homestead Drive
BANGHOLME VIC 3175
Maksvytis, Anna
9 Rex Avenue
KLEMZIG SA 5087
Maloney, Michael & Maloney Michelle
8 Gordon Crescent
ROMSEY VIC 3434
Mangelsdorf, Gary
13 Ryan Close
NOARLUNGA DOWNS SA 5168
Mani, Dorsamy
1/10 Queen Street
ASHFIELD NSW 2131
Maniago, Claude
32 McMillan Street
MORWELL VIC 3840
Marras, Olga
3 Hunter Street
ABBOTSFORD VIC 3067
Marshall, Keith & Marshall Janet
10 Sellers Court
PARA VISTA SA 5093
Marshall, John & Marshall Georgina
63 Station Street
GEELONG VIC 3214
Martin, Thomas
40 Jenkins Terrace
NARACOORTE SA 5271
Martin, David & Martin Karen
75 O'Sullivans Road
LILYDALE VIC 3140
Maynard, Janette
3 Balding Ave
WERRIBEE VIC 3030
McCallum, Anne
93 Victory Road
AIRPORT WEST VIC 3042
McCloud, Dean & McCloud Mandy
12 Feakes Road
WESTERN PORT VIC 3920
McDonald, David
PO Box 702
MERBEIN VIC 3505
McDonald, Donald & McDonald Daphne
5 Gomi Court
FRANKSTON VIC 3199
McInnes, Judith
171 Parfitt Road
WANGARATTA VIC 3677
McIntosh, Noela
20 Warbuton Crescent
WERRINGTON NSW 2747
McKenna, Colleen
13 Ivanhoe Street
MARRICKVILLE NSW 2204
McLoughlin, Tracey
15 Bruce Crescent
FERNTREE GULLY VIC 3156
McMahon, Gary
2/1 Neilson Street
BAYSWATER VIC 3153
McNamara, Cleve & Bowen Lisa
Unit 2
13 Ellesmere Parade
ROSANNA VIC 3084
McNevin, Donald
8 Susan Avenue
KIPPA-RING QLD 4021
McPhee, Bevin & McPhee Anne-Marie
14 Plantation Street
MILDURA VIC 3500
McWilliam, Alexander
6 Conifer Street
MADDINGTON WA 6109
Medhurst, Leigh
41 Clarke Street
LILYDALE VIC 3140
Meldrum, Paul
19 Central Avenue
BORONIA VIC 3155
Middleton, Ashley & Middleton Maria
2 Anthony Court
SEAFORD VIC 3198
Mikolajczik, Margaret
3 Mariani Close
BOSSLEY PARK NSW 2176
Millard, Jenny
24 Cassowary Avenue
WERRIBEE VIC 3030
Miller, Betty
c/- Gary Miller
24 Lumsdaine Street
PICTON NSW 2571
Miller, John & Miller Teresa
80 Lismore Street
ABERMAIN NSW 2326
Minniecon, Xavier
11 Hartman Avenue
MODBURY SA 5092
Mitchell, Lynette
5 Thomas Wilkenson Avenue
DURAL NSW 2158
Mitchell, Lindsay & Mitchell Teena
1 McKay Drive
DUBBO NSW 2830
Moss, Shane
17 Linett Street
ALTONA VIC 3018
Munding, Laurence
29 Netherby Avenue
WHEELERS HILL VIC 3150
Muoio, Caroline
15 Cunningham Street
DECEPTION BAY QLD 4508
Murch, Mark & Murch Debra
PO Box 14
GAWLER SA 5118
Murphy, Chris & Murphy Joanne
7A Powlett Street
SUNBURY VIC 3429
Murrin, Craig & Murrin Joanne
39 Grosvenor Street
GLANDORE SA 5037
Naidoo, Rajgopal
39/16-18 Russel Street
MATRAVILLE NSW 2036
Naydovski, Alison
87 Kenny Street
WOLLONGONG NSW 2500
Neville, David
Unit 1
68 Gildercliffe Street
SCARBOROUGH WA 6019
Newbond, Gavin & Newbond Loraine
4 Wingate Court
ENDEAVOUR HILLS VIC 3802
Newman, Mark
17 Wisteria Place
THORNLIE WA 6108
Newman, Cheryl
4 Filter Road
WEST NOWRA NSW 2541
Newton, Betty
96 Ryland Road
RAPID CREEK NT 0801
Nicholson, Jason
10 Dover Street
FORBES NSW 2871
Nunn, Reg & Nunn Rosyln
18 Supply Street
EAST NOWRA NSW 2541
O'Hara, Grace
22 Lyons Street
MAIDSTONE VIC 3012
O'Keefe, Deanne & O'Keefe Craig Paul
PO Box 7296
KARINGAL CENTRE POST OFFICE VIC 3199
O'Loughlin, Brian & Kirkpatrick Shona
21 Carshalton Court
HOPPERS CROSSING VIC 3029
Olajos, Rebecca & Horne Tracy
Unit 4
16 Omalley Crescent
DANDENONG NORTH VIC 3175
Oldham, John & Oldham Lynette
Unit 1
4 Wickham Avenue
FORREST HILL VIC 3131
Pacialeo, Vince
7 Claremont Road
BURWOOD HEIGHTS NSW 2136
Paine, Lynette
28 Northfolk Drive
NARRE WARREN VIC 3805
Palibino, Estrella
3 Tristram Close
LAKE HAVEN NSW 2263
Pappin, Denise
7 Garden Crescent
ECHUCA VIC 3564
Parker, Susan
35 Rollo Street
YARRAGON VIC 3823
Pasnin, Tom
13 Lauriston Drive
ENDEAVOUR HILLS VIC 3862
Patrizi, Tom
11 Augusta Street
CARLTON NSW 2218
Patterson, Jodie
6 Moorillah Street
HOPPERS CROSSING VIC 3029
Peat, Karen
7 Lynx Place
CRANEBROOK NSW 2749
Pelda, Ernst & Pelda Margaret
Crn Ettiwanda and Twenty First Street
KOORLONG VIC 3501
Peters, Evangeline
65 Tucker Street
MACHANS BEACH QLD 4878
Pfitzner, Anna
10 Tandy Street
ABERFOYLE PARK SA 5159
Pickering, Jason
36 Shakespeare Street
TRARALGON VIC 3844
Pickett, Stephen & Pickett Amanda
29 Blackburn Road
MOOROOLBARK VIC 3138
Pilbeam, Vera
The Bailly
Unit 2/85 Clinton Street
ORANGE NSW 2800
Pinnington, Brett
Unit 6
12 Strickland Street
GOLDEN GROVE SA 5125
Pitham, Dave & Nelson Christine
47 Princeton Circle
ALEXANDER HEIGHTS WA 6064
Pividor, Shane
5 Pallina Close
HAMPTON PARK VIC 3976
Plane, Steven & McElroy Bronwyn
14 Beadon Close
BALLAJURA WA 6066
Pollard, Rodney & Pollard Laurel
7 Pacific Parade
WEST BEACH SA 5024
Pollard, Wendy
28 Gilchrist Crescent
SUNBURY VIC 3429
Polyak, Helen
1A Sherriff Street
UNDERDALE SA 5032
Porter, Derek
PO Box 428
AVALON BEACH NSW 2107
Potts, John
PO Box 305
CARDWELL QLD 4849
Presser, Douglas
1 Weerona Way
MORNINGTON VIC 3931
Prestinenzi, Anthony & Prestinenzi Maria
30 Millbank Drive
DEER PARK VIC 3023
Price, Judy
113 Darbin Boulevard
RESERVOIR VIC 3073
Pryor, Margaret
4 Emerald Parade
OTTOWAY SA 5013
Pulham, Richard & Pulham Deborah
40 Farmer Avenue
BROOKDALE WA 6112
Quilty, Andrew & Quilty Sue
34 Sunlight Parade
FISHING POINT NSW 2283
Quinn, Leonard & Quinn Beverly
4 McKay Drive
DUBBO NSW 2830
Radcliffe, Dianna
5C Gleneagles Place
ST ANDREWS NSW 2566
Radtke, Vanessa
2 Sebastion Street
EPPING VIC 3076
Rancie, Ben
4/268 Grimshaw Street
WATSONIA VIC 3087
Rawlinson, Allan
Unit 2
810 Plenty Road
SOUTH MORANG VIC 3752
Rawlinson, Michael & Rawlinson Marie
5 Luton Way
BUNDOORA VIC 3083
Redfern, William Henry
Unit 4
9 Harvey Street
NAILSWORTH SA 5083
Reed, Shane
11 Bellnore Drive
NORLANE WEST VIC 3214
Reedy, Deborah & Barclay Thomas
3 Fallon Crescent
FRANKSTON VIC 3199
Reid, Robert
13 Gordon Street
CHARTERS TOWERS QLD 4820
Ribbons, Marcus & Dillon Amy
7 Hemmings Close
CLARKSON WA 6030
Richards, Lidia
12 Stradbroke Way
WYNDHAM VALE VIC 3024
Richardson, Kathy
55 Beaulieu Road
RED HILL VIC 3186
Richardson, Keith
18 Burilla Avenue
DONCASTER VIC 3108
Riddle, Sonia
133 Graham Street
BROADMEADOWS VIC 3047
Riley, Robert & Riley Shirley
Unit 36
PO Box 1246
BURLEIGH HEADS QLD 4220
Rimene, Noni
103 Gibson Avenue
PADSTOW NSW 2211
Ristov, Sasko & Ristov Mare
12 Luzon Court
LALOR VIC 3025
Roberts, Daphne
43 Kalimna Drive
CLONTARF QLD 4019
Robinson, Mark
78 Malaya Road
PUCKAPUNYAL VIC 3662
Robinson, Vivien
1 Faircroft Avenue
GLEN IRIS VIC 3146
Robinson, Mark
119 Third Avenue
ROSEBUD VIC 3939
Robinson, James & Robinson Merle
16 Sturt Place
MOUNT COLAH NSW 2079
Rocco, Tarcisio
13 Forbes Street
RYE VIC 3941
Rocco, Antoinette
13 Nicholas Street
KEYSBOROUGH VIC 3173
Rochow, Evelyn & Rochow Brian
5/206 Alexandra Street
ALBURY NSW 2640
Rushbrooke, Dorothy
Unit 4
Block 1, Edward Street
BAYSWATER VIC 3153
Russell, Jiliana
3 Wickham Street
STANDFORD MERTHYR NSW 2327
Ryrie, Barry & Ryrie Debra
6 Drake Street
MALMSBURY VIC 3446
Sargent, Darryl & Sargent Kendra
35 Roseberry Avenue
EAST BRIGHTON VIC 3187
Saroukos, Michael & Saroukos Kate
7 Howsorn Street
BRUNSWICK WEST VIC 3055
Satendra, James
28 Kingswood Avenue
MOUNT WAVERLEY VIC 3149
Sattler, Diane
Unit 34
474-482 The Kingsway
MIRANDA NSW 2228
Saunders, Ken & Saunders Wendi
83 Armidale Street
ABERMAIN NSW 2326
Scarffe, Phillip & Scarffe Gerardine
155 Morris Road
HOPPERS CROSSING VIC 3029
Schwarze, Donald & Schwarze Noelene
121 Birdwood Drive
BLUE HAVEN NSW 2262
Scott, Bradley & Dixon Cheryl
4 Darlington Street
STURT SA 5047
Sedgman, Lorelle
11 Frederick Street
WINDERMERE PARK NSW 2264
Semmens, Norm
121 Main Street
ELLIMINYT VIC 3249
Shaker, Tharwat
1 Hume Highway
CHULLORA NSW 2190
Sheldon, David & Oxford Samantha
21 Excelsoir Grove
WOODCROFT SA 5162
Shelley, Jodie
16 Strasbourg Ramble
PORT KENNEDY WA 6172
Sheridan, David
39 Ridley Grove
WOODVILLE GARDENS SA 5012
Shiers, Steven
25 Strasburg Ramble
PORT KENNEDY WA 6172
Shipley, Gail
12 Pangarinda Street
BRACKEN RIDGE QLD 4017
Shrimplin, Glenn
4 Beaumont Road
LENAH VALLEY TAS 7008
Simpson, Annette
4 Ararat Road
STAWELL VIC 3380
Simpson, Ian & Simpson Donna
21 Tetten Hall Ridge
BELMONT VIC 3216
Sims, Jane
34 Gillies Street
FAIRFIELD VIC 3078
Sinclair, Elaine
6 Clydesdale Street
SHEPPARTON VIC 3630
Singh, Lorraine
15 Belinda Close
MELTON VIC 3337
Singh, Sanjay & Singh Jane
8 Altair Place
HINCHINBROOK NSW 2168
Skinner, Anthony
18 Hamilton Place
WODONGA VIC 3690
Smart, Alan & Smart Frances
23 Corriedale Road
31 Piccolotto Drive, West Melton 3337 - 9743 2975 (Frances)
MELTON VIC 3337
Smith, Jenny
33 Winifred Street
HORSHAM VIC 3400
Smith, Jackie
78 Charles Street
SMITHFIELD NSW 2164
Smith, Kerri & Pilkington Damian
17 Oakdene Court
PARALOWIE SA 5108
Smith, Gavin
70 Becket Street
GLENROY VIC 3046
Smith, Christine
172 Desborough Road
ST MARYS NSW 2760
Smoker, Mervyn
23 Mataro Avenue
INGLE FARM SA 5098
Sneddon, Leanne
Unit 1
6 Darcy Street
DONCASTER VIC 3108
Snellin, Rod
31 Daintree Loop
ELLENBROOK WA 6069
Soanes, Faye
8 Ryhl Court
MOUNT LOW QLD 4818
Squires, Noel & Squires Lisa
20 Francis Street
WERRIBEE VIC 3030
Staines, Corinne
42 Pipers Bay Drive
FOSTER NSW 2428
Steiler, Graham
31 Silky Oak Street
KIRWAN QLD 4817
Stewart, Marilyn
54 Lewers Street
BELMONT NSW 2280
Stewart, William & Stewart Anne
11 Kauri Grove
GLEN WAVERLEY VIC 3150
Stibbard, Alan
117 Anson Street
ORANGE NSW 2800
Stiff, Andrew & Stiff Joanne
26 Moxhams Road
MONBULK VIC 3793
Stringer, Kylie
Unit 27
8 Tudor Rose Court
Gooding Drive
CARRARA QLD 4211
Sunderland, Karyn
PO Box 251
PATTERSON LAKES VIC 3197
Sutch, Kristy
14 Noble Way
SUNBURY VIC 3429
Sutherland, Christina
3 Varuna Place
DOONSIDE NSW 2767
Suttie, Andrew
5 Verner Avenue
FRANKSTON VIC 3199
Svilicich, Steven
13 Eastlewood Street
NARELLAN NSW 2567
Swaysland, Jenny
48 Rusten Street
QUEANBEYN NSW 2620
Tait, John & Tait Cherie
6 Quail Court
CARRUM DOWNS VIC 3201
Tallorito, Stella & Tallorito Vince
5 Krithia Street
NORTH COBURG VIC 3058
Taouk, Alison
c/- Post Office
SUNNYCLIFFS VIC 3496
Taylor, Andrea
5 Second Avenue
EAST KEW VIC 3102
Taylor, Ben & Taylor Tracey
Lot 19 Erin Place
CASULA NSW 2170
Thompson, Christopher
11 Hassell Street
FERRYDEN PARK SA 5010
Thompson, Bernard & Thompson Jean
42 Old Kapunda Road
NURIOOTPA SA 5355
Thompson, Phillip & Thompson Joeline
7/7 Jenny Cox Close
ERINA NSW 2250
Tierney, Brooke
131 Rosella Avenue
WERRIBEE VIC 3030
Tito, Anthony & Richardson Susan
3 Vim St
MELTON VIC 3337
Trainor, Corey
21 Sheraton Road
DUBBO NSW 2830
Trigg, Shane
7 Coris Place
EPPING VIC 3076
Trinder, Alice
c/- Unit 2
2 Burke Road
CRONULLA NSW 2230
Troy, Ken
36 Marday Street
SLACKS CREEK QLD 4127
Tucker, Raymond
25 Bougainville Road
LETHBRIDGE PARK NSW 2770
Tunstall, Rhondda
5 Bangalow Road
THIRROUL NSW 2515
Turnbull, Brenda
63 Clothier Road
MENAI NSW 2234
Turner, Kim
20 Overley Avenue
ROSEBUD VIC 3939
Turner, Linda
122 Driscolls Road
KEALBA VIC 3021
Turpin, Marlene
52 Anderson Street
WERRIBEE VIC 3030
Tyson, Geoffrey
4 Roebuck Crescent
WILLMOT NSW 2770
Valentine, Brian & Valentine Julianne
2 Larkin Court
EAST DONCASTER VIC 3109
Van-Reyk, Maurice
9 Aweta Street
ASHWOOD VIC 3147
Van-Egmond, Gerard
2 Owen Court
SEBASTOPOL VIC 3356
Vanderwert, Rod
3 Viggers Parade
GLEN WAVERLEY VIC 3150
Vassallo, Brooke
180 Hall Parade
HAZELBROOK NSW 2279
Vaughns, Brian & Vaughns Julia
1 Hamal Street
DONVALE VIC 3111
Vickery, Kenneth & Stringer Elizabeth
25 Coach Street
SLACKS CREEK QLD 4127
Videon, Chris
34 Wood Street
ASCOT PARK SA 5043
Vigurs, Kerrie
9 Linx Place
CRANEBROOK NSW 2749
Vinci, Lisa
8 Jersey Way
WAIKIKI WA 6169
Visic, Nadica
9 Clements Street
DANDENONG VIC 3175
Wadsley, Tracey
c/- Santos
91 King William Street
ADELAIDE SA 5000
Wallace, David & Harris Michelle
3 Palari Crescent
MUNNO PARA SA 5115
Wallace, Graeme & Mullan Kerry
30 Union Street
TEMPE NSW 2044
Wallis, Natalie
12 Killerton Crescent
WEST HEIDELBERG VIC 3081
Walshaw, Vera
PO Box 316
NARROMINE NSW 2821
Ward, Brett & Ward Michelle
13 Cornelian Avenue
EAGLE VALE NSW 2558
Ward, Ian
1 Car Street
HORSHAM VIC 3400
Warner, Paul & Warner Karen
8 Rosewood Avenue
ORANGE NSW 2800
Warren, Travis
5 Church Street
WARRAGUL VIC 3820
Watson, Norman
143 Bourke Street
WANGARATTA VIC 3677
Watt, Jason
PO Box 1090
IRYMPLE VIC 3498
Watts, Robert & Watts Stella
c\ Leon Schramm
PO Box 287
CLARE SA 5453
Webb, Damien & Webb Danuta
40 Station Street
WALLAN EAST VIC 3756
Webb, Nancy
15 Birdwood Avenue
HEALESVILLE VIC 3777
Webster, Michael & Webster Sandra
1 Ku-Ring-Gai Close
LOGANHOLME QLD 4129
Webster, Margaret
14 Gallway Drive
EAGLEHAWK VIC 3556
West, Noeline
20 Montefiore Street
KAPUNDA SA 5373
Weston, Andrew & Weston Marie
34 Lyall Drive
WERRIBEE VIC 3030
White, George & White Nola
6 O'Byran Street
MERBEIN VIC 3505
White, Reuben
5 Justfield Drive
SUSSEX INLET NSW 2540
Whyatt, Jenny
Unit 1
24 Myrtle Street
HEIDELBERG HEIGHTS VIC 3081
Whyte, Steven
6 Princes Crescent
SHEPPARTON VIC 3630
Wilkie, Natalie
17 Lanark Street
BRUNSWICK EAST VIC 3057
Willett, Cathy
93 Esdale Street
NUNAWADING VIC 3131
Williams, Timothy and Susan
9 Ruvina Street
ASPENDALE VIC 3195
Williams, Debbie
10 Jones Crescent
ROSANNA VIC 3084
Williamson, Glenyss
103 Eleventh Street
MILDURA VIC 3500
Willis, David
161A Victoria Street
DULWICH HILL NSW 2203
Willshire, Richard
18 Tanya Court
EAGLEBY QLD 4207
Wilson, Raymond & Wilson Barbara
PO Box 463
STAWELL VIC 3380
Wilson, Joyce
1-58 Lockyer Street
ADAMSTOWN NSW 2291
Wilson, Nicole
158 South Ring Road
WERRIBEE VIC 3030
Woods, Jane & Woods Graham
30 Kulgoa Road
PYMBLE NSW 2073
Wright, Karen
9 Berkley Way
ROSEMEADOW NSW 2560
Wynne, Sarah
15 Napier Road
MORLEY WA 6062
Young, Trevor & Young Dawn
87 Armidale Street
ABERMAIN NSW 2326
Young, Geoffrey & Young Jennifer
44 Chenhall Crescent
TRARALGON VIC 3844
Young, Chris
84 Carter Road
NAMBOUR QLD 4560
SCHEDULE D
This Notice is to all persons:
(a) who entered into a sales contract to purchase a FAI Home Security Guard I or FAI Home Security Guard II alarm system ("the Alarm Systems") on or after 9 July 1993 but before 9 July 1999; and
(b) who entered into a loan contract with FAI Finance Corporation Pty Limited to finance the purchase of one or other of the Alarm Systems; and
(c) to whom a seller made a representation to the effect that one or other of the Alarm Systems was the "latest technology available" ("the Representation"); and
(d) for whom the Representation was a factor in their decision to enter into a sales contract to purchase one or other of the Alarm Systems; and
(e) who suffered financial loss as a result of the purchase of one or other of the Alarm Systems;
("Group Members")
On 9 July 1999, a representative proceeding under Part IVA of the Federal Court of Australia Act 1976 ("the Act") was commenced in the Federal Court of Australia ("the Court") against FAI Home Security Pty Limited and FAI Finance Corporation Pty Limited by Timothy Williams and Susan Williams ("the Applicants") claiming compensation for themselves and on behalf of Group Members for financial loss arising as a result of the purchase of one or other of the Alarm Systems ("the Representative Proceeding").
The Applicants and certain group members ("the Known Group Members") instructed Maurice Blackburn Cashman, solicitors to act for them in the Representative Proceeding.
The Applicants and the Known Group Members reached a settlement of their claims with FAI Home Security Pty Limited and FAI Finance Corporation Pty Limited ("the Settlement"). The Settlement has been approved by the Court. On 18 April 2001, the Court made orders:
* granting leave to the Applicants to amend the Representative Proceeding to confine it to the Applicants and the Known Group Members;
* approving the Settlement; and
* dismissing the Representative Proceeding.
If you are a Group Member but not one of the Known Group Members your rights are unaffected by the Settlement and the orders of the Court, except as follows. The running of any limitation period in respect of a claim you may have a Group member has been suspended since 9 July 1999. FAI Home Security Pty Limited and FAI Finance Corporation Pty Limited have agreed that this limitation period will not begin to run again until 18 June 2001. You should see a lawyer if you want legal advice on this issue.
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 [1967] UKHL 1; [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 |
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 |
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.
Background
3 In order to understand the issues which have arisen as a result of the proposed settlement, it is necessary to refer to some of the issues which have occurred in relation to the proceeding. On or about 23 October 2000, the applicants and the respondents agreed to a settlement of the proceeding, subject to a number of conditions. One of those conditions was that the Court approve the amendment of the proceeding and approve the settlement. On 12 December 2000, the applicants filed a notice of motion seeking an order that the Court approve the proposed amendment of the proceeding and approve the settlement pursuant to s 33V of the Act. The motion sought orders similar in terms to the notice of motion filed on 9 February 2001. On 22 December 2000, I dismissed that motion: Williams v FAI Home Security Pty Ltd (No 4) [2000] FCA 1925. In short, I refused to consider approval of the settlement without notice of the proposed settlement being given to the group members as presently defined in the application.
4 The group members to whom the proceeding presently relates are persons who:
* entered into a sales contract with the first respondent ("FAI Home Security") on or after 9 July 1993 to purchase a Security Guard I or a Security Guard II home alarm system ("the alarm system");
* entered into a loan contract with the second respondent ("FAI Finance") on or after 9 July 1993 to finance the purchase of an alarm system;
* relied on a representation by the seller of the alarm systems to the effect that the alarm system was the latest technology available ("the representation");
* suffered financial loss as a result of the purchase of the alarm system.
I will call these group members "the present group members".
5 The proposed settlement involves the respondents paying money only to those present group members who made themselves known to Maurice Blackburn Cashman, the solicitors for the applicants, who signed a fee and retainer agreement with that firm and who had provided instructions to the firm that they purchased the alarm system from FAI Home Security and that the purchase was financed by a loan contract with FAI Insurance. I refer to these group members hereafter as the "known group members".
6 In earlier reasons for judgment I indicated that I was not prepared to consider whether I should approve the proposed settlement until the correction notice which I ordered on 16 October 2000 was sent to specified persons: Williams v FAI Home Security Pty Ltd (No 3) [2000] FCA 1438.
7 In my reasons for judgment on 22 December 2000, I also indicated that if a further application was made to the Court to approve a settlement of the proceeding, I would require evidence as to the manner in which the amount proposed to be paid under the settlement to the applicant's solicitors in respect of their costs and disbursements in the proceeding had been ascertained and evidence that those costs were fair and reasonable.
8 When the notice of motion filed on 9 February 2001 came on for hearing on 22 February 2001, I ordered that the respondents give notice pursuant to s 33X of the Act of the proposal to amend and settle the proceeding by placing advertisements in The Australian newspaper and in newspapers published in Melbourne, Canberra, Sydney, Perth, Hobart, Launceston and Darwin. The advertisements were in the form of a notice to present group members that:
* the applicants and the known group members have reached a settlement of their claim with the respondents;
* the settlement is conditional upon its approval by the Court;
* on 28 March 2001 the applicants would ask the Court to order that the applicants be permitted to amend the application to confine the application in the representative proceeding to the applicants and known group members (which order would amend the representative proceeding to exclude some group members), and to approve the settlement pursuant to s 33V of the Act;
* if a person was a group member but did not, or no longer, instruct Maurice Blackburn Cashman to act for that person, no offer of settlement had been made to that person;
* it was proposed to amend the representative proceeding so that the applicants no longer represented such persons;
* if the settlement was approved, the known group members would have the benefit of the settlement and the rights of other present group members would be unaffected except as set out in the notice;
* if a present group member to whom no offer of settlement had been made wanted to object to the settlement or the proposed orders, that person could appear before the Court on 28 March 2001 to make that person's objections known to the Court;
* present group members could obtain a copy of the documents which would be before the Court on 28 March 2001, including a copy of the terms of settlement, from the applicants' solicitors.
9 The notice was published in The Australian newspaper on 5 March 2001 and newspapers in the various cities on 13 March 2001. As a result of the publication of the notice, 291 persons contacted the applicants' solicitors about the subject matter of the notice. Of these persons, 140 were identified by the applicants' solicitors as not falling into the class of present group members. Of the balance of 149 persons, two persons were unable to provide the applicants' solicitors with sufficient information in order for them to ascertain whether they were present group members, and four persons who had contacted the applicants' solicitors were not able to have contact re-established with them. Of the 145 persons who fell into the category of present group members, 57 persons did not object to the proposal to amend and settle the proceeding and did not oppose the settlement of the proceeding in respect of the known group members, or the proceeding coming to an end, and 88 known group members wished to object to the proposal to amend and settle the proceeding on the basis that no offer of settlement had been made to them.
10 The applicants seek leave to amend the application by deleting the definition of present group members to whom the proceeding relates and substituting the 495 known group members as being the group members to whom the proceeding relates. The applicants seek a consequential order pursuant to s 33ZF of the Act that the Court declare that the persons who are bound by the settlement of the proceeding are the 495 known group members.
11 The terms of the settlement reached between the applicants and the respondents, which is subject to the Court amending the definition of the group in the manner to which I have already referred (par 10 above) and the Court approving the settlement pursuant to s 33V of the Act and ordering the dismissal of the proceeding with no order as to costs, are as follows:
* The respondents will pay each of Maurice Blackburn Cashman's 495 clients $1,000 within twenty-eight days of a Court order approving the settlement provided that:
(a) if any of Maurice Blackburn Cashman's clients have a debt outstanding to FAI Finance, then the $1,000 will be applied in reduction of the debt;
(b) if any of Maurice Blackburn Cashman's clients did not purchase an alarm system or did not finance such purchase with FAI Finance, they will be excluded from the settlement.
* The respondents will, within twenty-eight days of the date of a Court order approving the settlement, pay to Maurice Blackburn Cashman $415,000 on account of their costs in this proceeding, and in another Supreme Court proceeding, incurred up to and including 22 December 2000. Of this sum, $376,135 is to be paid in respect of their costs and disbursements in this proceeding. The respondents will also pay to Maurice Blackburn Cashman up to $25,000 in respect of their costs and disbursements incurred after 22 December 2000.
* On payment of the costs, Maurice Blackburn Cashman and their clients will provide a release to the respondents.
* The respondents will pay the costs of any notification to any group members other than Maurice Blackburn Cashman's clients ordered by the Court in connection with the approval of the settlement.
* Three of the partners of Maurice Blackburn Cashman will enter into an agreement that they will not accept instructions from any person in relation to the sales practices of the respondents in relation to the alarm systems up to the date of settlement.
* The offer by the respondents covers persons who have contacted Maurice Blackburn Cashman after 23 October 2000 and who have entered into a fee and retainer agreement with Maurice Blackburn Cashman, provided that the total number of persons to whom the respondents are required to make payment does not exceed 495.
* The settlement is conditional upon:
(a) The Court ordering that the definition of the group in the proceeding be amended so as to limit it to Maurice Blackburn Cashman's clients who purchased an alarm system on or after 9 July 1993 with finance provided by FAI Finance.
(b) The Court approving the settlement pursuant to s 33V of the Act and ordering that the proceeding be dismissed with no order as to costs.
* Without limiting the operation of s 33ZE of the Act, the respondents will conduct their response to any claims in respect of the issues the subject of the class action by persons who would, but for the amendment of the group, have been group members in the proceeding as if any limitation period in respect of those claims by those persons did not recommence to run until one month after publication of any notice ordered by the Court in connection with approval of the settlement pursuant to s 33V.
12 When the matter was called on for hearing on 28 March 2001, the respondents, by their senior counsel, offered an undertaking to the Court to send a letter of offer to each of the 88 persons who were present group members and who had informed the applicants' solicitors that they objected to the settlement. The offer, in substance, was the same offer as had been made to the 495 known group members and had been accepted by them. The offer to be contained in the letter was refined in the course of the hearing and as now proffered is in the following terms:
"The terms of FHS [FAI Home Security] and FFC's [FAI Finance] offer to you, which will become the terms of a contract between you and FHS and FFC if you accept this offer, are as follows:1. In consideration of your agreement to the things described in paragraph 2, FHS and FFC will pay you a total of $1,000 within 28 days of the Effective Date, provided that:
(a) if you have a debt outstanding to FFC at the Effective Date, then the $1,000, will be applied in reduction of that debt, and the balance of the amount of $1,000 after it has been applied in reduction of that debt (if any) will be paid to you;
(b) if you did not purchase an Alarm System between 9 July 1993 and 9 July 1999, or finance the purchase of the Alarm System by entering into a contract with FFC, neither FHS nor FFC will be under any obligation to make any payment to you (or apply any amount in reduction of any debt you may owe to FFC).
2. By accepting this offer, you agree:
(a) not to pursue any objection to approval of the Settlement by the Court; and
(b) to release each of FHS and FFC from all claims, (however they arise) in respect of any alleged statements, representations or warranties made to you by any person in connection with your purchase of the Alarm System to the effect that the Alarm system was:
(i) the latest technology available;
(ii) the best on the market;
(iii) for sale at much less than comparable systems.
3. This agreement will be of no effect if a notice of motion dated 9 February 2001 filed in the Class Action is dismissed, or if the Federal Court of Australia otherwise refuses to approve the Settlement.
4. You must not take any steps to give publicity to this offer, or any contract formed if you accept this offer.
5. In this letter:
`Alarm System' means an alarm system identified by the names `Security Guard I' or `Security Guard II'.
`Class Action' means Federal Court of Australia proceedings number V383 of 1999.
`Court' means the Federal Court of Australia.
`Effective Date' means the date Settlement Orders are made by the Court or the date you accept this offer (whichever is the later).
`Settlement Orders' means any orders made by the Court in relation to Federal Court of Australia proceeding no. V383 of 1999, the effect of which is to amend the description of the Class in which the Class Action to include only those persons subject to the settlement, approve the settlement, and make ancillary or consequential orders."
13 The undertaking was offered instead of amending the settlement agreement because amendment of the settlement agreement to include the 88 persons would have required the process of advertising the terms of the settlement to have been undertaken again. I considered that any further advertisement was unnecessary.
14 In my earlier reasons for judgment on 22 December 2000 (when I dismissed the first motion to approve the settlement), I observed that if I limited my consideration of the settlement to whether it is fair, reasonable and adequate in relation to the interests of the known group members who would be bound by it, and whose causes of action against the respondents would merge in the settlement agreement, if approved by the Court, I was satisfied that the settlement was fair, reasonable and adequate. I reached this conclusion having regard to the nine-factor test to which I referred, which had been adopted by the United States Court of Appeals for the Third Circuit and which was set out in In re General Motors Corporation Pick-Up Truck Fuel Tank Products Liability Litigation 55 F.3d 768 (3rd Cir. 1995) at 785, and having regard to the advice of counsel and the technical expert obtained by the applicants' solicitors referred to in my earlier reasons. I have not changed that view.
15 In my earlier reasons for judgment, I concluded that the notice of the application for approval of the settlement then sought, to be given pursuant to s 33X of the Act, was required to be given to the present group members, that is to the group members as presently defined in the application. I concluded that the notice was to be given, not only to those present group members who would be receiving payments as part of the settlement, but also to all present group members, as presently defined, who have not made contact with Maurice Blackburn Cashman or signed fee or retainer agreements with them. I was not satisfied for the purposes of s 33X(4) of the Act that it was just to determine the application for approval of the settlement without that notice being given to the present group members and, indeed, I considered that an injustice would be visited upon the present group members (other than the known group members) if I were to approve the settlement without present group members having been given notice of the proposed settlement. My reasons for reaching that conclusion are set out in my earlier reasons for judgment. In particular, I did not consider it appropriate or fair to present group members to allow the definition of the group to be narrowed for the purpose of achieving settlement for the narrowed group, without the members of the wider group being put on notice as to what was proposed.
16 What concerned me, in particular, at the time of those earlier reasons for judgment was that no public notice had been published so as to alert persons who might fall into the category of present group members of the existence of the proceeding so that they might, if they wished, contact Maurice Blackburn Cashman about the matter. As a result of the publication of the notice, all present group members have been put on public notice as to the existence of the proceeding and the application for settlement of it. I was concerned about the interests of the present group members who were not known group members and who had not contacted the applicants' solicitors or signed a fee and retainer agreement with them.
17 That notice has now been given and although 88 persons falling into the category of present group members have indicated their objection to the settlement, their objection has been on the basis that the settlement is not available to them. One present group member appeared in Court on the hearing of the application for approval and indicated that that was his position. That basis for the objection to the settlement disappears with the undertaking given to the Court by the respondents to make the same offer to each of those 88 persons.
18 Although there may be present group members who have not contacted Maurice Blackburn Cashman as a result of the publication of the notice, all present group members have now been given the opportunity to do so. In this respect, the observation I made in par 29 of my earlier reasons bears repeating:
"The policy of Pt IVA of the Act is against allowing a respondent in a representative proceeding to settle with a representative party, and not with other members of the group, in such a manner as to cut the proceeding adrift from the umbrella of Pt IVA of the Act, without giving the other group members the opportunity to maintain the character of the proceeding as a representative proceeding pursuant to Pt IVA."
19 The issue of the costs to be paid by the respondents to the applicants' solicitors in respect of the costs and disbursements in the proceeding has now been resolved by the filing of an affidavit by an independent experienced legal costs consultant. The consultant has reviewed the files of the applicants' solicitors together with their time records and has satisfied me that the costs to be paid to the applicants' solicitors are fair and reasonable and represent a reduction in the quantum of the costs and disbursements which the applicants' solicitors would otherwise be entitled to charge their clients. The applicants' solicitors have not sought to charge the premium of 25% on the costs calculated on their hourly rates as provided for in s 98 of the Legal Practice Act 1956 (Vic) (and for which they had made provision in their fee and retainer agreements). The consultant concluded:
"The sum proposed by way of costs to [the applicants' solicitors] is significantly less than that which [they] would be entitled to recover if their full solicitor own/client costs were being allowed. The proposed figure to be paid to [the applicants' solicitors] for legal costs in this matter is fair and reasonable."
I accept this evidence.
20 Save for one matter which requires consideration, to which I shall refer, I am satisfied that the settlement is fair, reasonable and adequate having regard to the interests of the known group members and the 88 beneficiaries of the respondents' undertaking to extend the settlement offered to them, who will obtain a financial benefit under settlement and who will be bound by the settlement. Although present group members (other than known group members) will be excluded from the settlement, if leave is granted to the applicants to amend the application to limit the group members to whom the proceeding relates to the known group members, any rights which the present group members, otherwise excluded from the settlement, will have against the respondents in relation to the alarm systems, the subject of the proceeding, will not be affected or diminished. The limitation period for bringing proceedings against the respondents, which was frozen pursuant to s 33ZE of the Act, will not commence to run until one month after publication of the notice that the proceeding has been settled which I propose to order.
21 The remaining matter which requires consideration is the provision of the agreement whereby the three solicitors who have been acting for the applicants in the proceeding undertake not to accept any instructions from any other persons to take proceedings against the respondents in respect of alarm systems they purchased during the period 9 July 1993 until 9 July 1999. The relevant provision is in the following terms:
"Each of the partners of MBC, David Niven, Vivian Waller and Ben Slade will enter into an agreement by deed pursuant to which they warrant and undertake (and acknowledge that FHS and FFC will rely upon the said warranty and undertaking) that:(a) they will not accept instructions from any person in relation to the sales practices of FHS and/or FFC in relation to the SGI or SGII alarm systems upon to the date of settlement (being the date on which the last step is to be taken by any party in the Class Action with respect to orders made by the Court giving effect to its approval of the settlement pursuant to s33V of the Act or the date on which the said agreement is entered into, whichever is the later); and that
(b) they do not hold instructions from any person in relation to FHS and/or FFC (other than the instructions in the Class Action)."
22 I raised with the parties whether such a contractual provision might be an unreasonable restraint of trade and therefore unenforceable. The applicable principle is that restraints of trade are contrary to public policy and unenforceable, unless it can be established that they are reasonable with reference to the interests of the parties concerned and the public interest: Nordenfelt v Maxim Nordenfelt Guns and Ammunition Co Ltd [1894] AC 535 at 565; Bridge v Deacons [1984] AC 705 at 713; Adamson v New South Wales Rugby League Ltd (1991) 31 FCR 242 at 265, 292-294. I raised the issue whether the restraint to be imposed on the three solicitors was in the public interest from the point of view of the common law, and whether there might be an added public interest component having regard to the fact that the proceeding which was being settled was a representative proceeding brought under Pt IVA of the Act.
23 In order to justify a covenant or agreement in restraint of trade, the covenantee must establish that it has a legitimate interest which is capable of being protected by a covenant in restraint of trade. A bare covenant which protects a covenantee from competition is unenforceable as there is no legitimate interest to be protected: Vancouver Malt and Sake Brewing Co v Vancouver Breweries Ltd [1934] AC 181. Covenants entered into on the sale of a business protect the purchase of goodwill and trade secrets. Covenants entered into by an employee in favour of an employer to restrain the activities of the employee after leaving the employment protect the acquisition and use of trade secrets and other confidential information: Heydon, The Restraint of Trade Doctrine (2nd ed, 1998) at 211-213. Over the years the scope of a relevant legitimate interest has been expanded and it has been said that the "categories of restraint of trade are not closed": Petrofina (Great Britain) Ltd v Martin [1966] Ch 146 at 169; Esso Petroleum Co Ltd v Harper's Garage (Stourport) Ltd [1967] UKHL 1; [1968] AC 269 at 306; Buckley v Tutty [1971] HCA 71; (1971) 125 CLR 353 at 376. For example, in Queensland Co-Operative Milling Association v Pamag Pty Ltd [1973] HCA 24; (1973) 133 CLR 260 at 279, Stephen J recognised that a covenantee had an interest justifying protection in obtaining and retaining customers by sole supply agreements.
24 In CSR Ltd v Rothfield (unreported, Hedigan J, SC of Vic, 3 April 1992), an interlocutory injunction was granted restraining the defendant firm of solicitors from acting as solicitors in respect of claims that might be made against the plaintiffs arising out of their activities in relation to the manufacture and export of asbestos products. The solicitors had acted for a number of plaintiffs against CSR Ltd and a number of proceedings were settled on terms contained in a deed of settlement. Under the deed, the solicitors covenanted that for a period of five years from the date of settlement they would decline to accept instructions, or assist other lawyers, or in any other way pursue claims for exemplary and/or aggravated damages against CSR Ltd and other defendants arising out of exposure to asbestos at or from Wittenoom. Hedigan J concluded that the estimation of the facts before him and their meaning "against the legal considerations, still developing, plainly raises a serious question to be tried". The submissions before the Court raised issues as to whether the covenant was in restraint of trade, whether it was a reasonable restraint, to what extent was the public interest involved and whether the covenant was entered into in protection of an interest of the plaintiff which the law would protect. However, these matters were not the subject of detailed analysis by Hedigan J.
25 Unlike that case, the issue of the enforceability of the covenant in this case does not arise at the present time. Therefore, to that extent, it is premature to raise the issue whether the covenant is reasonable in the interests of the parties and in the public interest. As Lord Reid observed in Esso Petroleum Co Ltd v Harper's Garage (Stourport) Ltd (supra) at 297:
"One must always bear in mind that an agreement in a restraint of trade is not generally unlawful if the parties choose to abide by it: it is only unenforceable if a party chooses not to abide by it."
See also Buckley v Tutty (supra) at 379-380; Attorney-General of the Commonwealth of Australia v Adelaide Steamship Co Ltd [1913] AC 781 at 797.
26 Although I am approving a settlement, I am not in any way validating, or passing judgment upon, the enforceability of the agreement entered into between parties. Any question as to the enforceability of a particular provision of the agreement should await any particular point of time at which it may become a live issue. The solicitors are prepared to enter into a covenant required of them as part of an overall settlement. One can readily appreciate that by acting in the proceeding to date and by achieving the settlement they have achieved, they have accumulated a substantial amount of information and knowledge not only about the substantive issues in the proceeding in relation to the claims against the respondents, but also in relation to the extent to which, and the manner in which, the respondents are prepared to consider a compromise of such proceedings. Although I have reservations as to whether that knowledge can found a legitimate basis for an interest to be protected by a restraint of trade clause (in the same way as a restraint on a retiring partner in a firm of solicitors is required to protect the goodwill of the practice which that retiring partner has sold to the continuing partners of the firm), I do not consider it appropriate to deal with the matter at this stage.
27 I therefore propose to order that the applicants have leave to amend the application in the manner proposed and that the proposed settlement of the proceeding be approved, pursuant to s 33V of the Act. I propose to declare that the persons who are bound by the settlement of the proceeding are the respondents, the known group members and the persons who are the beneficiaries of the undertaking proffered by the respondents and who accept their offer, and that the proceeding be dismissed with no order as to the costs of the proceeding or the costs of the motion. There should also be an order for the publication of a notice that the proceeding has been settled. I will hear the parties as to the form of that notice.
I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Goldberg. |
Associate:
Dated: 11 April 2001
Counsel for the Applicants: |
D J Habersberger QC, J W K Burnside QC and P Bingham |
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Solicitor for the Applicants: |
Maurice Blackburn Cashman |
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Counsel for the Respondents: |
J G Santamaria QC, B Walker SC and C M Caleo |
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Solicitor for the Respondents: |
Clayton Utz |
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Date of Hearing: |
12, 22 February and 28 March 2001 |
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Date of Judgment: |
11 April 2001 |
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