Amom v State of NSW
[2015] NSWSC 2114
•31 July 2015
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New South Wales |
Case Name: | Amom v State of NSW |
Medium Neutral Citation: | [2015] NSWSC 2114 |
Hearing Date(s): | 31 July 2015 |
Date of Orders: | 31 July 2015 |
Decision Date: | 31 July 2015 |
Before: | Garling J |
Decision: | 1. Adjourn that Amended Notice of Motion |
Catchwords: | PRACTICE AND PROCEDURE – civil – representative proceedings – application by group member seeking leave to opt out of the proceedings – where proceedings have provisionally settled with final settlement to occur in some months – whether it would be unfair or prejudicial for the applicant to remain a member of the group |
Legislation Cited: | Not Applicable |
Cases Cited: | Not Applicable |
Texts Cited: | Not Applicable |
Category: | Procedural and other rulings |
Parties: | Einpwy Amom (P) |
Representation: | Counsel: |
File Number(s): | 2011/187125 |
Publication Restriction: | Not Applicable |
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EX TEMPORE JUDGMENT
This is an application by Amended Notice of Motion filed 27 July 2015, by Rohan Brian Donnelly by his tutor Meagan Hughes.
Mr Donnelly was arrested five days before the final date for the group defined in the Third Further Amended Statement of Claim existed. Notwithstanding Mr Tobin's submissions that a discrepancy existed between the group as defined in the Further Amended Statement of Claim and the group as notified in the Public Notice, it seems to me to be clear that the correct definition of the group is that in the pleading, not the Public Notice. By reference to that definition, Mr Donnelly's claim falls within the group for whose benefit these proceedings are brought.
Accordingly, for that reason, I would not be prepared to make a declaration in terms of Order 1 of the Amended Notice of Motion.
Mr Donnelly seeks leave to opt out of the proceedings. He submits that he did not know of the existence of the proceedings and therefore did not have a chance in 2014 to opt out in accordance with the Court's orders. He submitted that his solicitor, from whom he usually seeks legal help and upon whose advice he is accustomed to act, did not have any notice of, and did not know, of the group proceedings. As well, he submits that there are various other matters arising in connection with his particular claim which provide support for the view that it is unfair to him to be required to remain in the proceedings. Accordingly, he has sought leave to opt out of the proceedings by one or other appropriate method.
I am conscious that not every individual member of a group will necessarily be enthusiastic about being a group member. That is inherent in the nature of a representative action. On the other hand, the reason that the Court has broad supervisory powers with respect to the conduct of representative actions is to ensure that, so far as is possible, any such disadvantage can be addressed.
These representative proceedings have come to the stage where the Court has been asked to provisionally approve a proposed settlement, and a settlement scheme, which will assess how the proposed settlement moneys will be distributed to members of the group.
The Court has been asked to approve orders which enable the advertising of that scheme, the submission of claims upon the settlement funds and the process for assessment of those claims. The Court's final approval of that scheme is not due to be sought or given for some months.
I am satisfied that at the stage of final approval, if the Court was informed by appropriate evidence, that the settlement scheme proposed worked significantly adversely and prejudicially to a member of the group, that would be a matter to which the Court could have regard in considering whether to give final approval to the settlement scheme. One way of dealing with that would be to decline to approve the scheme if the prejudice was thought to be significant and likely to be occasioned across the representative group. The Court has other powers which it can exercise at that time which may be used to address particular forms of individual prejudice in a multitude of other ways.
In my view, in the particular circumstances of this proposed settlement and the claim which is on foot in the District Court by Mr Donnelly, the appropriate course is not to make Orders 2, 3 or 4 in the Amended Notice of Motion today, but to adjourn that Motion until the time when final approval is sought and to consider, by that time, whether there is any real and established prejudice to Mr Donnelly. It necessarily follows that, since Mr Donnelly remains as a member of the group and the Court has not yet made any orders excusing him from membership of the group, he will need to register and submit all of the necessary factual material to enable an assessment of his claim to be made as a part of the assessment scheme proposed in the course of the settlement proposal.
I note that I do not take his participation in that process as derogating from the arguments that he wishes to put with respect to whether he should be obliged to remain a member of the group. Those arguments have been put, and they are preserved by the adjournment of the Amended Notice of Motion until the date for final settlement.
In those circumstances:
(1)I adjourn that Amended Notice of Motion;
(2)I reserve all questions of costs as arising from it.
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