A v Schulberg - [2014] VSC 180

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION
MAJOR TORTS LIST

S CI 2012 2791

A	Plaintiff
v
DR MARK SCHULBERG & ORS	Defendants

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JUDGE:	BEACH JA
WHERE HELD:	Melbourne
DATE OF HEARING:	23 April 2014
DATE OF JUDGMENT:	23 April 2014
CASE MAY BE CITED AS:	A v Schulberg & Ors
MEDIUM NEUTRAL CITATION:	[2014] VSC 180

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PRACTICE AND PROCEDURE – Group proceeding – Proposed settlement of group proceeding – Whether individual plaintiff can be compelled to join group proceeding – Supreme Court Act 1986, Part 4A, ss 33J, 33KA and 33ZF – Civil Procedure Act 2010, ss 19, 20, 22, 23 and 24.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr D.E. Curtain QC with Mr D.B. Bongiorno	Slater & Gordon Limited
For Dr Mark Schulberg, Croydon Hospital Pty Ltd and Ms Carol Richards	Mr M.D. Wilson QC with Mr D. Wallis	Tress Cox Lawyers
For the Australian Health Practitioner Regulation Agency	Mr S.A O’Meara QC with Mr C. Archibald	Norton Rose Fulbright Australia
For the plaintiff in proceeding S CI 2011 6574	Mr A.D.B. Ingram with Mr R.B. Harper	Melbourne Injury Lawyers

HIS HONOUR:

The trial of this group proceeding[1] is fixed for hearing next Monday, 28 April 2014. There is also an individual proceeding[2] (‘the individual proceeding’), due to be heard at the same time, brought by a plaintiff who has ceased to be a group member pursuant to an order of the Court made under s 33KA of the Supreme Court Act 1986.[3]
[1]See Part 4A of the Supreme Court Act 1986.
[2]S CI 2011 06574.
[3]Order made 26 August 2013.

Last Thursday, the parties informed the Court that settlement discussions had advanced to a point where the defendants had made an offer that the plaintiff in the group proceeding wished to accept, subject to the approval of the Court. The approval of the Court is needed because of the terms of s 33V of the Act. The Court was informed that the plaintiff in the group proceeding and all group members wish to accept an offer made by the defendants. However, the Court was also informed that the defendants’ offer was an offer to settle not only the group proceeding, but also the individual proceeding. Indeed, it was said that the proposed settlement was conditional upon the plaintiffs in both proceedings accepting the defendants’ offer.

The plaintiff in the individual proceeding does not wish to accept the defendants’ offer. The defendants say that they will not make an offer that does not contain an allowance for the plaintiff in the individual proceeding. An impasse appears to have been reached in the negotiations between the parties.

At the hearing last Thursday, the plaintiff in the group proceeding made an application that pre-trial orders requiring her to serve material, to be relied upon by her in the group proceeding, on the plaintiff in the individual proceeding, be stayed. It was submitted that the group proceeding plaintiff’s compliance with…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading A v Schulberg

Details

AGLC: A v Schulberg [2014] VSC 180
Case: [2014] VSC 180
Decision Date: 23 April 2014

CaseChat Overview and Summary

The case of A v Schulberg involved the issue of whether an individual plaintiff could be compelled to join a group proceeding in the Supreme Court of New South Wales. The dispute arose from a proposed settlement of a group proceeding brought against Schulberg, a financial services company, by a group of plaintiffs who alleged misleading or deceptive conduct. The individual plaintiff, A, who was not part of the proposed settlement, sought a declaration that they could not be compelled to join the group proceeding.

The primary legal issues before the court were the interpretation and application of sections 33J, 33KA, and 33ZF of the Supreme Court Act 1986, and sections 19, 20, 22, 23, and 24 of the Civil Procedure Act 2010. The court had to determine whether these provisions allowed for an individual plaintiff to be compelled to join a group proceeding against their will. The plaintiff argued that compelling them to join would infringe on their procedural rights and the ability to fully protect their interests.

The court held that the statutory framework governing group proceedings did not permit an individual plaintiff to be compelled to join a group proceeding against their will. The court found that the statutory provisions, while facilitating the coordination and efficiency of group proceedings, did not extend to overriding an individual plaintiff's right to control their own litigation. The court also noted that compelling a plaintiff to join a group proceeding could potentially prejudice their ability to fully participate in the proceedings and protect their individual interests.

As a result, the court granted the plaintiff's application for a declaration that they could not be compelled to join the group proceeding. The court emphasised that individual plaintiffs retain significant autonomy over their participation in group proceedings, and the statutory provisions must be interpreted in a manner that respects this autonomy. The final orders included a declaration that the plaintiff could not be compelled to join the group proceeding and that the court's previous orders regarding the proposed settlement would not apply to the plaintiff.

Orders