Amom v State of New South Wales
[2016] NSWSC 1900
•23 December 2016
Supreme Court
New South Wales
Medium Neutral Citation: Amom v State of New South Wales [2016] NSWSC 1900 Hearing dates: On the papers Date of orders: 21 November 2016 Decision date: 23 December 2016 Jurisdiction: Common Law Before: Garling J Decision: (1) Judgment for the defendant.
(2) Pursuant to s 179 of the Civil Procedure Act 2005, this judgment affects all members of the group described in the Third Further Amended Statement of Claim other than any person who has opted out of the proceedings pursuant to s 162 of the Civil Procedure Act.
(3) Each party pay his and its own costs of the proceedings.
(4) All previous orders as to costs in these proceedings be, and hereby are, vacated.Catchwords: PRACTICE AND PROCEDURE – civil – representative proceedings – application for order barring group members from making or pursuing claims following settlement of the proceedings – whether the Court has the power to make such an order Legislation Cited: Civil Procedure Act 2005 Cases Cited: Johnson v Endeavour Energy [2015] NSWSC 1117 Texts Cited: Not Applicable Category: Procedural and other rulings Parties: Einpwy Amom (P)
State of New South Wales (D)Representation: Counsel:
Solicitors:
C Pandolfini (P)
D Villa (D)
Public Interest Advocacy Centre
NSW Crown Solicitor’s Office (D)
File Number(s): 2011/187125 Publication restriction: Not Applicable
Judgment
Introduction
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On 2 March 2016, the Court made orders pursuant to ss 173 and 185 of the Civil Procedure Act 2005 (“the Act”) approving the resolution of these representative proceedings on the terms set out in a Deed of Settlement between the parties. As well, the Court approved the proposed settlement distribution scheme.
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Clause 9.1 of the Deed of Settlement provided that once court approval to the settlement had been obtained, and the settlement distribution scheme had been finalised, the parties agreed that:
“The plaintiff and all Group Members release the State … from all claims, causes of action and demands … in connection with, or in any way arising out of, the matters the subject of the proceedings.”
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The settlement scheme anticipated that, at a time after the settlement had been given effect to, the solicitors for the plaintiff would move the Court for orders:
dismissing the proceeding with no order as to costs; and
barring all Group Members from making or pursuing any claims arising out of the subject matter of the proceeding.
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The parties agreed in clause 9.4 of the Settlement Deed that the contents of that Deed could be relied upon and pleaded by the State as a bar to the commencement of, or the maintenance of, any proceedings by either the plaintiff or any group member where the new proceedings related to the subject matter of the present settled proceedings.
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The scheme was also intended to finalise all claims made against the State by the plaintiff and represented Group Members.
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As is commonly the case, the description of the members of the group included people who did not receive a distribution from the Settlement Distribution Fund. This is not an unusual feature of group proceedings.
Current Issue
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The parties now seek orders to the following effect as agreed in the Deed of Settlement:
“3. The proceeding be dismissed with no order as to costs.
4. All previous orders as to costs in this proceeding be vacated.
5. Group Members as defined in the Third Further Amended Statement of Claim be barred from making or pursuing any claim arising out of the subject matter of this proceeding.”
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When the parties appeared and sought, by agreement, these orders, the Court raised with the parties whether it had any power, and if so whether it should make the orders sought. In particular, the question centred upon the making of an order barring Group Members from bringing proceedings.
Submissions
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The State submitted that it was unclear whether the approval given by the Court to the settlement scheme gave operative effect to the provisions of the settlement scheme providing for the defendant to be immune from further claims by individuals who fell within the definition of Group Members. It submitted that it was also unclear whether, as a matter of contract, the Deed of Settlement binds Group Members for whom the plaintiff’s solicitor was not actually instructed to act at that time.
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Dismissal of proceedings does not prevent the commencement of fresh proceedings: see s 91 of the Act. In all of the circumstances, the defendant submitted that the Court had the power to make the requisite order barring further claims and ought, in the circumstances, make it.
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There were a number of bases upon which the defendant argued that the Court had power.
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The first of these is s 91 of the Act which provides that the dismissal of any proceedings does not prevent the plaintiff from bringing fresh proceedings or claiming the same relief in fresh proceedings. It also provides, however, that that provision is “… subject to the terms on which any order for dismissal is made …”.
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Accordingly, the defendant submitted that the Court could make it a term of the order for dismissal that Group Members be barred from bringing further proceedings. However, the State accepted that doubt exists as to whether this section would permit such an order because textually it refers only to a plaintiff and does not refer to Group Members or people on whose behalf proceedings have been commenced pursuant to Pt 10 of the Act.
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The second possible source of power is s 179 of the Act which provides that where a judgment is given in representative proceedings, that judgment must describe or otherwise identify the Group Members who will be affected by it. It further provides that the judgment binds all such persons other than any person who has opted out of the proceedings prior to the judgment being entered.
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I am not satisfied that the order made for the approval of this proposed settlement scheme pursuant to ss 173 and 185 would properly be described as a judgment given in the proceedings.
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Certainly the orders which are now proposed do not constitute a judgment and, accordingly, s 179 of the Act would not be engaged by the proposed orders.
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Finally, the defendant pointed to the provisions of s 183 of the Act which provides that, with respect to representative proceedings:
“… the Court may, of its own motion or an application by a party or a group member, make any order that the Court thinks fit or appropriate to ensure that justice is done in the proceedings.”
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There is no doubt that s 183 confers a broad power on the Court that ought be a given a generous interpretation. It is not an unlimited power, nor is it one which enables the Court to rewrite the legislation: Johnson v Endeavour Energy [2015] NSWSC 1117 at [77] ff.
Discernment
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It is clearly the intention of the parties that, upon the finalisation of the settlement scheme, the State would have resolved the entirety of its liability to Group Members.
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The proceedings were well advertised at their commencement as being representative proceedings. Individuals were permitted to opt out of the proceedings if they so wished.
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The real question is how the intention of the parties could most effectively be achieved having regard to the legislative scheme under Part 10 of the Act.
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In my view, the only effective way of achieving that end is to provide for a judgment for the defendant in accordance with s 179 of the Act and, by way of a proper description, include it as binding all members of the Group.
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In this way, the State has the certainty of a final judgment, and by reference to the pleadings, any member of the Group who has not opted out, will be bound by the judgment as it determines the issues pleaded.
Conclusion
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The appropriate course in this case is to make the following orders:
Judgment for the defendant.
Pursuant to s 179 of the Civil Procedure Act 2005, this judgment affects all members of the group described in the Third Further Amended Statement of Claim other than any person who has opted out of the proceedings pursuant to s 162 of the Civil Procedure Act.
Each party pay his and its own costs of the proceedings.
All previous orders as to costs in these proceedings be, and hereby are, vacated.
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Decision last updated: 23 December 2016
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