Burke v Ash Sounds Pty Ltd
[2018] VSC 528
•13 September 2018
| THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
MAJOR TORTS LIST
S CI 2017 00891
| MICHELA JOY BURKE | Plaintiff |
| v | |
| ASH SOUNDS PTY LTD trading as THE FALLS MUSIC AND ARTS FESTIVAL (ABN 67 160 019 152) | Defendant |
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JUDGE: | Daly AsJ |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 13 September 2018 |
DATE OF JUDGMENT: | 13 September 2018 |
CASE MAY BE CITED AS: | Burke v Ash Sounds Pty Ltd |
MEDIUM NEUTRAL CITATION: | [2018] VSC 528 |
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PRACTICE AND PROCEDURE – Group proceeding – Application by defendants for order that proceeding no longer continue as a group proceeding – Whether group proceeding not an efficient and effective means of dealing with group members’ claims – Common questions related to liability alone – Quantum of claims of most individual group members likely to be modest – Whether in the interests of justice that proceeding no longer continue as a group proceeding – Whether determination of common issues lacked utility to advance claims of group members – Supreme Court Act 1986 (Vic), Part 4A, s 33N(1) – Application dismissed
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr T P Tobin SC with Mr M Guo | Maddens Lawyers |
| For the Defendant | Mr M J Hooper | Lander & Rogers |
HER HONOUR:
This proceeding was issued on 15 March 2017 as a group proceeding pursuant to Part 4A of the Supreme Court Act 1986 (Vic) (‘Act’). It concerns an incident at the Falls Music and Arts Festival (‘festival’) in Lorne on 30 December 2016. Without making any findings as to what actually occurred, it is alleged that a significant number of largely young people were injured when festival patrons were attempting to exit the Grand Theatre marquee (‘theatre’) on the festival site. A number of people were trampled and injured in what has been described as a ‘crowd crush’ incident.
The lead plaintiff, Ms Burke, alleges that the defendant, the promoter of the festival, breached its duty of care towards the patrons of the festival by:
(a) failing to ensure that the theatre had an adequate means of safe exit;
(b) restricting the area of exit from the theatre in a manner which resulted in the crushing of persons attempting to do so;
(c) scheduling events at the festival and in particular around the time of the incident so that large numbers of people would be moving quickly between venues and failing to accommodate such movement;
(d) failing to have systems in place to ensure there would be safe movement between the venues at about the time of the incident;
(e) failing to have any or adequate surfacing placed at the exit of the theatre so as to ensure safe passage of those exiting from the theatre;
(f) failing to have any or adequate marshalling of patrons at the conclusion of the events at about the time of the incident;
(g) failing to provide any or adequate instruction to patrons as to their movement at about the time of the incident;
(h) failing to undertake any or any adequate risk assessment in respect of the movement of patrons from the theatre at about the time of the incident and to accommodate the risks associated therewith; and
(i) adopting a different style of marquee for the theatre as compared to the previous years without undertaking any or adequate risk analysis in respect of the alterations thereof and the effect thereof upon the movement of patrons.
As a result of the crowd crush incident, which occurred at approximately 9.50pm on 30 December 2016, a number of patrons were knocked unconscious and suffered physical injuries of some kind. A number were taken by ambulance to Geelong Hospital. While I do not have before me details of all of the injuries said to have been suffered by the group members, or detailed particulars of loss and damage in relation to each member of the group, it appears from the medical reports and medical panel determinations in evidence that a number of the patrons suffered minor to moderately severe abrasions and orthopaedic injuries, and a number of group members have since been diagnosed with post-traumatic stress disorder as a result of being swept up in the crowd crush incident. It appears that a number of the people involved in the incident have fully or almost fully recovered from any physical or psychological injuries suffered by reason of the incident. Some payments have been made by the defendant on an ex gratia basis to cover medical expenses and short term loss of income. The defendant denies any liability to the plaintiffs.
The current number of identified group members is 56. The mode of trial selected by the plaintiff is trial by jury. On 7 April 2017, the plaintiff amended her statement of claim to include claims against the defendant under the Australian Consumer Law. The amended statement of claim also identified the following questions of law and fact common to the claims of the plaintiff and each group member, being:
(a) whether a duty of care was owed to the plaintiff and group members and if so the content of that duty;
(b) whether the defendant breached the duty of care owed to the plaintiff and group members;
(c) whether the defendant’s provision of the festival services was a supply, within the meaning of the Australian Consumer Law, to the plaintiff and group members;
(d) whether the plaintiff and group members were consumers within the meaning of the Australian Consumer Law;
(e) whether the guarantee as to due care and skill applied to the festival services, and if so, whether the conduct of the defendant contravened the guarantee as to due care and skill; and
(f) whether the guarantee as to fitness for purpose applied to the festival service, and if so, whether the conduct of the defendant contravened the guarantee as to fitness for purpose.
The proceeding was originally fixed for trial on 12 June 2018 on an estimate of ten to fifteen days. Subsequently, the proceeding was listed for trial on 19 November 2018, and remains so. A judicial mediation held on 12 June 2018 failed to resolve the matter. Upon the completion of the mediation, the defendant foreshadowed making an application pursuant to s 33N of the Act that the proceeding not continue as a group proceeding. The application was duly made on 6 August 2018.
In its summons filed on 6 August 2018, the defendant seeks the following orders:
1.Pursuant to s 33N(1) of the Act the proceeding no longer continue as a group proceeding.
2.Alternatively the proceeding be stayed pending the determination of referrals to the medical panel in respect of Kate Rasmussen, Madeleine Weatherley and Benjamin Ward. The application was supported by an affidavit affirmed by Mr Ari Abrahams of Lander and Rogers.
In his affidavit filed in support of the defendant’s summons, Mr Ari Abrahams, the solicitor for the defendant, deposed as follows:
(a) at a directions hearing before John Dixon J on 1 September 2017, his Honour raised concerns as to whether a group proceeding in the Supreme Court was the appropriate forum for the resolution of this dispute;
(b) he deposed as to the process whereby medical records and other documents relevant to the quantum of the claim of ten group members were exchanged on a without prejudice basis; and
(c) he exhibited the medical records and other material provided to the medical panel in respect of group members Ms Kate Rasmussen, Ms Madeleine Weatherley and Mr Benjamin Ward.
On 6 September 2018, Mr Abrahams also filed a further affidavit in relation to the process of assessment of group member claims. He exhibited copies of the medical panel determinations in respect of Ms Rasmussen, Ms Weatherley and Mr Ward. The medical panel has found that the degree of impairment resulting from psychiatric or psychological injury to Ms Rasmussen did not satisfy the threshold level, but that the degree of impairment to both Ms Weatherley and Mr Ward did satisfy the threshold level.
Mr Abraham also deposed that assessments have also been provided by the plaintiff’s solicitors in relation to Mr Mason Sharp, Ms Lauren Bregazzi and Mr Tim Hunt, and that the defendant will refer these group members to the medical panel.
On 28 August 2018, Ms Kathryn Emeny of Maddens Lawyers swore an affidavit in opposition to the application, deposing as follows:
There are presently 56 group members pursuing a claim against Ash Sounds Pty Ltd through Maddens Lawyers for injuries they suffered at the Falls Music and Arts Festival at Lorne, Victoria, in the course of exiting the Grand Theatre tent on 30 December 2016 at around 9:50pm at the conclusion of a performance by the band, DMAs.
Each of the 56 group members suffered injuries or loss and damage arising from the same incident, involving a common defendant and an identical factual matrix.
The present group proceeding is close to being ready for trial, and substantial legal costs have been incurred to date in getting the matter to this point. If the defendant’s application that the proceeding no longer continue as a group proceeding succeeds, then, pursuant to the instructions from each of the 56 group members, it will result in the need for 56 individual proceedings to be initiated in various courts. In addition to the wastage of legal costs incurred to date, this will also result in duplication of common evidence in respect of liability and prejudicial delay to each person in the group. Associated with that duplication of evidence there is a need for an individual proceeding that will cause significant additional costs. Further, as there would be multiple proceedings in various jurisdictions there is a prospect of there being conflicting determinations of liability on identical fact situations which would bring the system of justice into disrepute.
She also deposed as to further group members being medically examined, albeit disputing that the Certificates of Assessment under the Wrongs Act 1958 (Vic) (‘Wrongs Act’) are a pre‑condition to group members making claims for general damages, or are a relevant discretionary factor in this application, deposing as follows:
Pursuant to the plaintiff’s statement of claim, the group members’ claims are also being pursued under the Australian Consumer Law (‘ACL’) for breach of statutory guarantees. Under the ACL a person who makes a claim for non‑economic damages as a result of personal injury is not required to obtain a certificate of assessment under the Wrongs Act.
On 11 September 2018, Ms Emeny swore a further affidavit annexing a medical report served upon her by the defendant’s solicitors in respect of group member Mr Lewis Nagle. The defendant’s expert psychiatrist assessed Mr Nagle as meeting the relevant threshold for impairment under the Wrongs Act.
During the course of the hearing of the application, Ms Emeny briefly gave evidence concerning her affidavit sworn on 28 August 2018, in particular, her statement that:
If the defendant’s application … succeeds, then, pursuant to the instructions from each of the 56 group members, it will result in the need for 56 individual proceedings to be initiated in various courts.
Ms Emeny’s evidence was to the effect that while she initially received instructions from each of the group members to issue a group proceeding or individual proceedings with respect to their claims, she has not received further instructions after the defendant issued this application, and, should the defendant’s application succeed, she would seek further instructions as to whether each group member wished to proceed with individual proceedings. There was nothing in Ms Emeny’s oral evidence which caused me to alter my view that, should the defendant’s application succeed, a substantial number of group members may elect not to pursue individual claims, on the basis that it would be inconvenient and/or uneconomic to do so, but that a significant number would pursue individual proceedings.
Prior to turning to the submissions of the parties, in AS v Minister for Immigration and Ors (Ruling No 7)[1] (‘AS’), J Forrest J provided the following outline of the statutory framework for class actions in Victoria, as follows (omitting footnotes):
[1][2017] VSC 137.
The Federal group proceeding provisions have now been in force for over 25 years. The genesis of Part IVA of the Federal Court of Australia Act 1976 (Cth) was the 1988 report of the Australian Law Reform Commission. The aim of the statutory provisions (which were generally in accordance with the terms of the report) was the ‘[e]fficient use of judicial resources and fairness to respondents requires that lawyers and individuals be encouraged to bring similar or related claims in one set of proceedings’.
In Victoria, Part 4A of the Act took effect from 1 January 2000 and, with only a couple of minor exceptions, is an analogue of the Federal Part IVA.
In Mobil Oil Australia Pty Ltd v Victoria, Gleeson CJ observed that the primary object of Part 4A (and therefore Part IVA) is clear enough:
It is to avoid multiplicity of actions, and to provide a means by which, where there are many people who have claims against a defendant, those claims may be dealt with, consistently with the requirements of fairness and individual justice, together.
Rather than introduce a certification regime, as in the Federal Court of the United States, a combination of s 33C, s 33H and s 33N regulate which cases proceed to trial as class actions.
Section 33C is foundational and provides the basis for bringing a claim on behalf of a class or group. In essence, it requires seven or more persons to have claims against the same person, arising out of the same, similar or related circumstances, giving rise to a substantial common question of law or fact. It is an important provision. As Gordon J said in Timbercorp:
These conditions in s 33C are central to the scheme set out in Pt 4A. The purpose of commencing a group proceeding is so that a substantial common question of law or fact can be decided for at least seven persons whose claims involve the same, similar or related circumstances. Section 33C expressly recognises that each group member may, as an individual, have different claims against the defendant, but the foundation of a group proceeding is that they all have an interest in the resolution of a substantial common question of law or fact.
Previously, the High Court in Wong v Silkfield Pty Ltd said of the application of Part IVA and s 33C:
Clearly, the purpose of the enactment of Pt IVA was not to narrow access to the new form of representative proceedings beyond that which applied under regimes considered in cases such as Carnie. This suggests that, when used to identify the threshold requirements of s 33C(l), “substantial” does not indicate that which is “large” or “of special significance” or would "have a major impact on the ... litigation" but, rather, is directed to issues which are “real or of substance”.
…
It was not to the point that, in the final resolution of the litigation, this might not prove to be the ”major” or ”core” issue. It was not necessary to show that litigation of this common issue would be likely to resolve wholly, or to any significant degree, the claims of all Group Members.
It is also clear that a Court will give a liberal interpretation to the requirements of s 33C given the evident legislative purpose. In Zhang v Minister for Immigration, Local Government and Ethnic Affairs, French J said:
The question whether the claims of the persons who are proposed as members of a group arise out of “the same, similar or related circumstances” as required by s 33c(1) is not to be answered by an elaboration of that verbal formula. It contemplates a relationship between the circumstances of each claimant and specifies three sufficient relationships of widening ambit. Each claim is based on a set of facts which may include acts, omissions, contracts, transactions and other events. As appears from s 33c(2), the circumstances giving rise to claims by potential Group Members do not fall outside the scope of the legislation simply because they involve separate contracts or transactions between individual Group Members and the respondent or involve separate acts or omissions of the respondent done or omitted to be done in relation to individual Group Members.
…
The current application is made by the defendant under s 33N of the Act, which provides as follows:
(1)The Court may, on application by the defendant, order that a proceeding no longer continue under this Part if it is satisfied that it is in the interest of justice to do so because -
(a)the costs that would be incurred if the proceeding were to continue as a group proceeding are likely to exceed the costs that would be incurred if each group member conducted a separate proceeding; or
(b)all the relief sought can be obtained by means of a proceeding other than a group proceeding; or
(c)the group proceeding will not provide an efficient and effective means of dealing with the claims of group members; or
(d)it is otherwise inappropriate that the claims be pursued by means of a group proceeding.
In its written outline of submissions filed on 3 September 2018, the defendant submitted, in summary, as follows:
(a) none of the group members have individual claims that would merit an individual proceeding being issued in this Court. Of the 56 group members, the vast majority have claims within the jurisdictional limit of the Magistrates’ Court, with the claims of a small remainder of group members being more appropriately determined in the County Court;
(b) because of the need for individual assessment of each group member’s personal injury claim, having the Supreme Court hear and determine assessments of quantum for each group member would not be an efficient means of dealing with these claims;
(c) the defendant relies upon each of the sub-sections of s 33N(1) in order to establish that it is in the interests of justice that this proceeding be ‘declassed’;
(d) the defendant noted that the Court is not required by s 33N(1) to have detailed evidence about, or give detailed consideration to the likely course of any comparative proceedings (that is, any proceedings which might be issued should this proceeding be ‘de-classed’);
(e) because the claims for personal injury are so divergent and particular to the individual group members, each will require separate adjudication. Each of the common questions concerns liability only;
(f) given that the incident resulted injury to people who are no older than in their mid-twenties, the quantum of the claims is modest, as there are no substantial claims for loss of earning capacity and only some of the group members have claims for general damages, having met the requirement for a significant injury under the Wrongs Act;
(g) in the absence of any entitlement to general damages save for a small number of group members, the value of the claim collapses, as does its justification as a group proceeding. The defendant submitted as follows:
Assuming the plaintiff establishes liability, the Supreme Court will need to hear and determine all 56 claims as assessments of damages. That will require discovery and particulars loss for each group member in the usual course, and then a hearing by a separate jury at each time (that the plaintiff’s election in the writ) to assess damages. It is not in the interests of justice for the Supreme Court’s resources to be used in such a fashion when, if the proceeding were not a group proceeding, that course would never be pursued by a plaintiff’s lawyer, and would not in any event be permitted by this Court.
(h) the defendant takes issue with the contention of the plaintiff that the limitation of recovery of non-economic loss under the Wrongs Act does not apply to the plaintiff’s claims under the Australian Consumer Law, by reason of s 275 of the Australian Consumer Law. A decision to the contrary of the New South Wales Court of Appeal concerning the predecessor to s 275 held that the limitations in the Civil Liability Act 2002 (NSW) upon the recovery of damages for personal injury was effective to limit recovery under s 275 of the Australian Consumer Law; and
(i) in conclusion, the defendant submitted as follows:
What the above analysis demonstrates is that:
(a)there are 56 group members (including the lead plaintiff) who claim some loss;
(b)the strong likelihood is that, other than the 5 who can claim general damages, the remaining claims (of 51 group members) are well below the $100,000 jurisdictional limit of the Magistrates’ Court: s 100(1) of the Magistrates’ Court Act 1989 (Vic);
(c)as a result, the remaining heads of loss claimed are very small, in many cases limited to medical expenses, damaged phone or clothing, and a short time out of work in the weeks and a few months after the incident on 30 December 2016;
(d)of the 51 group members with Magistrates’ Court claims, around 45 of those would be compulsorily referred to small claims arbitration as they are below $10,000: see s 102(1) of the Magistrates’ Court Act;
(e)further, where an award is made under $500 in a small claims arbitration, the court must not award costs unless there are special circumstances: s 105(1). It appears there are five to six group members for whom the quantum is under $500, and those claims should be dealt with in that no-costs jurisdiction.
The above assumes that all 56 group members will bring claims. It is likely that not all would do so: cf affidavit of Kathryn Emeny at [7].
Conclusions on application
The class action process is inapt for the present kind of case where the personal injuries suffered are (for the most part) minor and temporary such that no general damages will be awarded. The small claims arbitration process in the Magistrates Court, together with 5 County Court actions heard at the same time (or a single action with co-plaintiffs), is a more efficient, cost-effective and appropriate course to be taken rather than to have the Supreme Court preside over assessments of damages that do not warrant the use of the Supreme Court’s processes.
For the above reasons, it is in the interests of justice that the proceeding not continue as a group proceeding. If that is done, it will be a matter for the plaintiff’s lawyers as to whether they seek to substitute another plaintiff under s 33P or s 33ZF, or agree that the individual proceeding should be transferred to the County Court under Part 3 of the Courts (Case Transfer) Act.
In his oral submissions during the course of the hearing, counsel for the defendant accepted that there were common questions with respect to liability issues, but emphasised that, as the matter currently stands, this Court is required to adjudicate upon 56 individual claims for personal injury, each with their own facts and idiosyncrasies, before a judge and jury, in circumstances where the quantum of many of the claims would ordinarily be suitable for adjudication in the small claims jurisdiction in the Magistrates’ Court. While there may be scope for splitting the proceeding into a trial upon liability and assessments of damages, the defendant is entitled to have its application heard in the context of the case as it currently stands.
Counsel for the defendant noted that the test under s 33N of the Act requires the Court to consider whether one of the limbs of s 33N(1) is established, in particular ss 33N(1)(c), and then, if so, whether continuation of the proceeding as a group proceeding is in the interests of justice. It is not necessary for the defendant to establish that the continuation of the proceeding as a group proceeding would cause an injustice to the defendant. Counsel rejected any submission that requiring group members to issue individual proceedings would cause any work or costs to be wasted. Discovery has already been completed, and the defendant would not object to expert evidence relied upon in one proceeding being adduced in other proceedings.
In her written submissions filed 11 September 2018, the plaintiff noted that the only substantive matter put forward by the defendant in support of its application is that the total quantum of the group members’ claims is allegedly too small to justify proceeding in the Supreme Court. The plaintiff referred to the Australian Law Reform Commission (‘ALRC’) Report regarding group proceedings in the Federal Court,[2] where the ALRC contemplated two situations in which grouping of claims was considered desirable:
(a) situations where effective grouping procedures are necessary to ensure access to legal remedies; and
(b) situations where effective grouping procedures are necessary to promote efficiency and consistency in dealing with multiple claims.
[2]ALRC, Grouped Proceedings in the Federal Court, Report No 46 (1988) [62]-[64].
The plaintiff contended that the present proceeding is an illustration of both of the rationales referred to above and therefore is ‘quintessentially appropriate to be conducted under Part 4A [of the Act]’. Indeed, the plaintiff submitted that Part 4A is intended to avoid a situation, as contemplated by the defendant, that some small claims might be abandoned altogether because of the economics of bringing individual proceedings. The bringing of the current proceeding under Part 4A of the Act is entirely consistent with what Parliament contemplated ought to be possible, and the experience in the federal jurisdiction and this jurisdiction shows that group proceedings are an efficient means of aggregating a number of small claims. Another matter relevant to providing access to justice is the ability of group members to enjoy the benefit of the determination of common questions without being exposed to any adverse costs liability.
The plaintiff also submitted that the continuation of the proceeding in current form has benefits with respect to the efficient management of the group member’s claims. If the defendant’s application was successful, some claims would have to be brought in the Magistrates’ Court and others in the County Court. Witnesses would have to give their evidence on a minimum of at least two occasions, and discovery and expert evidence processes would need to be undertaken at least twice, even if it is assumed that each claim made in each court would be heard together.
The plaintiff’s submissions referred to the overarching purpose in the Civil Procedure Act 2010 (Vic) (‘CPA’) to facilitate the ‘just, efficient, timely and cost effective resolution’ of a dispute. Not only is the prospect of the duplication described above inconsistent with the policy behind Part 4A of the Act, it is also inconsistent with the overarching purpose of the CPA. Further, there is a real risk of inconsistent verdicts in separate proceedings, given that the defendant continues to dispute liability.
The plaintiff submitted that the defendant’s objection to this Court’s resources being used to adjudicate individual claims is misconceived for the following reasons:
(a) group members are not precluded from substantial awards of general damages simply because they may not have a significant injury certificate;
(b) many of them which will remain have claims that are of a quantum appropriate for resolution by this Court;
(c) once liability is resolved under Part 4A the efficient determination of quantum is explicitly contemplated by s 33S of the Act;
(d) it is quite possible that once liability is determined the parties may reach a settlement scheme for the determination of individual claims; and
(e) the legal costs associated with individual proceedings would be higher, as in each case liability would need to be re-litigated.
The plaintiff submitted that there is nothing in Part 4A of the Act which requires a minimum quantum for the total claim by group members, or any individual claims, and such a requirement would sit inconsistently with the policy objectives behind Part 4A. Indeed, the multiplicity of claims is at least as relevant as their aggregate quantum. The plaintiff also submitted that, given that the claims also are framed in terms of the Australian Consumer Law, the defendant’s submission that the absence of Wrongs Act certificates would preclude them from pursuing general damages is incorrect. However, even if the plaintiff is wrong in that respect, the evidence shows that there are seven group members who have been assessed as meeting the relevant threshold.
Finally, the plaintiff submitted that the defendant is bringing this application very late, not long before the scheduled trial. The plaintiff submitted, in conclusion, as follows:
The Defendant’s application does not grapple with first principles. The very purpose of Part 4A is to permit the aggregation of small claims, which on their own, might be uneconomic to bring (although for the reasons identified in Di Falco, the claims are not likely to be as small as the Defendant suggests). Aggregation of claims enables access to justice, as well as promoting efficiency and consistency.
The counterfactual, of claimants being forced to bring individual proceedings, would result in liability being argued and re-argued multiple times—even though the same acts and omissions caused every group members’ losses. Immediately it can be seen that this is inefficient, whereas continuation under Part 4A allows liability to be determined once and for all, binding all claimants and the Defendant. Further, individual proceedings may on the Defendant’s argument result in some claims being abandoned altogether, which is inimical to access to justice. Individual proceedings would also expose plaintiffs to adverse costs liability and discovery for no good reason and despite the disputed common issue being liability, increase the overall burden to the justice system as a whole, and increase the solicitor-client costs for all.
There are no circumstances which favour the proceedings not continuing under Part 4A, at least until there is a determination as to liability. Plainly, s 33(1)(a) and (c) do not apply, and even if 33(1)(b) or (d) applied, the Defendant has not demonstrated that the power should be exercised because ‘it is in the interests of justice’. Accordingly, the Defendant’s application should be dismissed with costs.
In his oral submissions during the course of the hearing of the application, senior counsel for the plaintiff submitted that this case was a quintessential example of the type of case which ought to be dealt with as a group proceeding. He submitted the fact that the group members’ damages may have to be separately assessed is no barrier to the proceeding continuing as a group proceeding: group members in the various bushfire proceedings litigated in this Court had claims of various character and quantum, and the Court has a great deal of flexibility in determining how the quantum of individual claims is to be calculated.
Senior counsel also submitted that requiring the group members to bring individual claims would be productive of inefficiency: very few, if any, group members live in Lorne, the location of the incident, and proceedings may need to be brought in different courts and different locations, at additional cost to the parties. Further, with such a multiplicity of proceedings, there is a risk of inconsistent findings on liability being made.
In AS,[3] J Forrest J distilled the following principles from the authorities applicable to applications under s 33N(1) of the Act:[4]
[3][2017] VSC 137.
[4]Ibid, [61]-[67].
First, the requirements of s 33C and s 33N are not to be conflated. Provided a claim satisfies s 33C (in that it either has not been challenged or any challenge has been defeated) then the provisions of s 33N (if invoked) dictate whether it can proceed to determination as a class action.
Second, it is not necessary for the representative plaintiff’s claim to determine all, or for that matter even a substantial amount, of the identified common issues.
Third, in carrying out the analysis under s 33N(1), it is necessary that the Court determine:
(a)whether one of the conditions contained in s 33N(1)(a) to (d) have been satisfied; and
(b)then, whether it is in the interests of justice to make an order of discontinuance in relation to that condition.
Fourth, and this relates specifically to 33N(1)(c), it is necessary to consider whether the determination of the representative proceeding is an effective and efficient mechanism to resolve the common issue(s) relevant to the group members to give some utility or benefit to the case continuing to trial as a representative claim. The inquiry is wide and requires the Court to focus on what are (and are not) the commonality of issues agitated in the representative proceeding with those of the group members.
Fifth, in terms of the analysis under s 33N(1)(c) in most, but not necessarily all, cases, it will be necessary to compare the utility of the representative plaintiff’s claim as against that of the prosecution of individual claims by group members.
Sixth, the management of the trial in the context of the agitation of disparate issues which may be irrelevant to the claim of the representative plaintiff is a relevant consideration in determining whether to permit the proceeding to continue as a class action.
Seventh, there is no prescribed time at which an application under s 33N should be made. The authorities, in general, demonstrate that such a determination should not be made until there is a full understanding of the representative plaintiff’s case and how it relates to both the common questions and the interests of the group members. It follows that such a determination may be made after the pleadings have closed, or once outlines of evidence have been exchanged (if that be ordered) or, for that matter, during or at the conclusion of the trial. What is important is that the Court is in a position to assess the requirements of s 33N(1) including, of course, that of it being in the interests of justice to terminate the representative proceeding.
In my view, the proceeding should not be ‘de-classed’. I agree with the submissions of the plaintiff that the very purpose of the class action regime under Part 4A of the Act is to enable the prosecution and efficient management of multiple claims, particularly those arising out of the same event or exposure to the same product, regardless of the quantum of individual claims. A requirement that group members have claims above a particular financial threshold is absent from the provisions of Part 4A of the Act, and is inconsistent with the policy considerations underlying the Act and the experience with class action claims, including settled proceedings, in this State and other jurisdictions.
The Introductory Section of the ALRC report referred to by the plaintiff in her written submissions referred to the issues with which the ALRC was concerned in its review, as follows:[5]
·reducing the cost of court proceedings to the individual
·enhancing access by the individual to legal remedies
·promoting efficiency in the use of court resources
·ensuring consistency in the determination of common issues
·making the law more enforceable and effective
[5]ALRD, Grouped Proceedings in the Federal Court, Report No 46 (1988), 8, [13].
I agree that the current proceeding is one which exemplifies the benefits outlined above. While these policy considerations do not alter the nature of the test set out in s 33N(1) of the Act, they do inform what factors might be taken into account in determining what is in the interests of justice. Those considerations also indicate that the Court ought to be comfortably satisfied that one or more of the limbs of s 33N(!0 are made out before ‘de‑classing’ a proceeding.
This is not a case where it could be argued that there is little utility in determining common questions in relation to liability. The proceeding concerns an incident at a particular time and a particular place. There is a single defendant, and there is no question of whether the defendant owed different duties to different group members. There is no defence of contributory negligence. Issues concerning liability are common to all group members.
The current case is very different to the proceeding in which J Forrest J decided to ‘de‑class’ a proceeding. In AS,[6] his Honour was faced with a group proceeding agitating claims made by detainees residing at the Christmas Island detention centre over a four year period. The plaintiff was a child who had lived at the detention centre for less than a year. During the relevant period, approximately 35,000 asylum seekers were accommodated at the detention centre. His Honour held that the proceeding was not an efficient and effective means of dealing with the claims of group members. He found that the plaintiff’s claim related solely to her treatment whilst in detention. He said:[7]
In my opinion, the pleaded case does not involve the consideration of a common thread (or any real part of it) which permeates the claims of other group members – rather it focuses on her alleged predicament whilst held in the detention centre, with little or no commonality with the claims of other group members.
[6][2017] VSC 137.
[7]Ibid, [73].
His Honour contrasted the claim of AS[8] with claims arising out of a single tortious event, such as the Black Saturday bushfires, or a claim arising out of the manufacture and distribution of a particular product to consumers, which had the necessary common elements to found a class action.
[8]Ibid.
In the current case, having regard to the principles applicable to applications under s 33N(1) of the Act identified by J Forrest J in AS,[9] extracted at paragraph 29 above, I would make the following observations:
[9][2017] VSC 137.
(a) there is no suggestion on the part of the defendant that the trial of the proceeding cannot deal with the common questions identified by the plaintiff, all of which concern liability;
(b) at the trial, the only issue to be agitated by the plaintiff which will not greatly assist the determination of the claims of other group members is the question of loss and damage, save for the determination of the question of whether s 27LE of the Wrongs Act and s 275 of the Australian Consumer Law operate to limit the recovery of damages for non‑economic loss for any breach of the Australian Consumer Law;
(c) indeed, the trial of the plaintiff’s claim could well be the appropriate vehicle to determine the plaintiff’s contention that she is not required to establish a significant injury within the meaning of the Wrongs Act in order to recover damages under the Australian Consumer Law, a determination which will affect the claims of other group members;
(d) while a number of group members have modest claims, the medical reports and medical panel determinations in evidence indicate that a number of group members have suffered life changing physical and psychological injuries as a result of the crowd crush incident; and
(e) while the defendant’s application could be said to be late, this is not a particularly material matter in determining whether it is in the interests of justice that the proceeding continue as a group proceeding.
Returning to the question of whether the likely quantum of the group members’ claims means that their claims are not appropriate for determination in this Court, I repeat my earlier observations concerning the absence of any financial threshold for claims to attract the provisions of Part 4A of the Act. This is not to say the question of quantum is not relevant, but it is far from determinative. Further, while I accept that, while any individual claims would be more appropriate for determination in the County Court and the Magistrates’ Court, the capacity to conduct a group proceeding is limited to this Court.
In its submissions, the defendant relied in particular on ss 33N(1)(c) of the Act, where the Court has the discretion to order that a proceeding not proceed as a group proceeding because
the group proceeding will not provide an efficient and effective means of dealing with the claims of group members.
It was not, and in my view could not be contended that the group proceeding was not an efficient and effective means of dealing with the liability issues between the group members and the defendant. Rather, the defendant’s submissions focussed upon the fact that, given most of the claims concern personal injury, the assessment of damages will need to focus upon the individual circumstances and injuries of each of the group members who make a claim for personal injury.
I am unconvinced by the defendant’s submissions concerning the efficiency benefits to be gained by forcing the group members to bring their claims in the Magistrates’ Court or the Supreme Court. While I accept that it would be undesirable for each of the group members’ claims to proceed before a judge and jury in this Court, the Court has many tools at its disposal to manage proceedings, or parts of proceedings, efficiently and cost effectively. If the common questions concerning liability are found in favour of the plaintiff, there is no reason why assessments of damages cannot be referred to associate judges, judicial registrars, or special referees, or some combination of the above. I agree with the submissions made on behalf of the plaintiff that ‘de‑classing’ the proceeding is more likely to be productive of inefficiency rather than efficiency.
Accordingly, I am not satisfied that it is in the interests of justice to order that the proceeding not continue as a group proceeding under any of the limbs of s 33N(1) of the Act.
I shall hear further from counsel regarding the form of orders required to dispose of the defendant’s summons, the question of costs, and any directions required for the further conduct of the proceeding. In particular, given the issues raised by this application, including the observations made by senior counsel during the course of the hearing as to how any assessments of damage might proceed, serious consideration needs to be given by the parties as to precisely what issues need to be determined by the forthcoming jury trial, and what can be held in abeyance, in contemplation of these matters being raised with the managing judge prior to the commencement of the trial.
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