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De Jong v Carnival PLC

De Jong v Carnival PLC

Case [2016] NSWSC 347 1 April 2016

Security for Costs

Representative Proceedings

Impecunious Plaintiff

Civil Litigation & Procedure

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Supreme Court

New South Wales

Medium Neutral Citation: De Jong v Carnival PLC [2016] NSWSC 347
Hearing dates: 29 February 2016. Further written submissions on 2 March 2016, 9 March 2016 and 18 March 2016
Date of orders: 01 April 2016
Decision date: 01 April 2016
Jurisdiction: Common Law
Before: Beech-Jones J
Decision:
(1)   The Defendant's notice of motion filed 29 January 2016 be adjourned to 22 April 2015 at 9.30am before Beech-Jones J.

(2)   The parties confer in relation to the preparation of a revised opt out notice and circular.
(3)   On or before 5pm on 19 April 2016 the parties file and serve either an agreed draft opt out notice, accompanying circular and form of orders approving the draft notice and circular or, failing agreement, competing versions of those documents.
Catchwords: PRACTICE AND PROCEDURE – security for costs – representative proceedings – individual litigant – no power to order security against group members but can be ordered against representative party – test to be applied – factors relevant – impecunious plaintiff – no litigation funder – capacity and willingness of group members to contribute – nature of claims – any contribution of group member to be proportionate to claim – opt out notice to request statement of capacity and willingness to contribute.
Legislation Cited: - Australian Consumer Law (Cth) – s 60, s 61, s 62
- Civil Procedure Act 2005 (NSW) – Part 10, s 67, s 98, s 168, s 169, s 175(1), s 181, s 183
- Courts and Crimes Legislation Further Amendment Act 2010 (NSW)
- District Court Act 1973 (NSW) – s 156
- Federal Court of Australia Act 1976 (Cth) – Part IVA, s 33ZG(c)(v), s 43(1A), s 56
- Federal Court Rules (Cth) – 19.01
- Supreme Court Act 1986 (Vic)
- Uniform Civil Procedure Rules (NSW) – r 42.41
Cases Cited: - Airtourer Co-operative Limited, The v Millicer Aircraft Industries Pty Limited [2004] FCA 1400
- Australian Securities Commission v Marlborough Gold Mines Ltd [1993] HCA 15; 177 CLR 485
- Baltic Shipping Company v Dillon [1993] HCA 4; 176 CLR 344
- Bray v F Hoffman-La Roche Ltd (2003) 130 FCR 317
- Byrnes v John Fairfax Publications Pty Ltd [2006] NSWSC 25
- Charara v Integrex Pty Ltd [2010] NSWCA 342
- Cowell v Taylor (1885) 31 Ch D 34
- P Dawson Nominees Pty Ltd v Brookfield Multiplex Ltd (No 2) [2010] FCA 176
- Green (as liquidator of Arimco Mining Pty Ltd) v CGU Insurance Ltd [2008] NSWCA 148
- Hassoun v Wesfarmers General Insurance Ltd t/a Lumley General [2015] NSWCA 33
- Jarvis v Swans Tours Ltd (1973) QB 23
- Kelly v Willmott Forests Ltd (in liquidation) [2012] FCA 1446
- Kelly v Willmott Forests Ltd (in liquidation) (No 2) [2013] FCA 732
- Kelly v Willmott Forests Ltd (in liquidation) (No 3) [2014] FCA 78
- Lam v Rolls Royce PLC (No 3) [2015] NSWSC 83
- Liristis v Danic [2011]…

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 De Jong v Carnival PLC

Details

AGLC: De Jong v Carnival PLC [2016] NSWSC 347
Case: [2016] NSWSC 347
Decision Date: 01 April 2016

CaseChat Overview and Summary

In the Federal Court of Australia, the case of De Jong v Carnival PLC involves a dispute where the plaintiff, De Jong, seeks to recover damages for injuries sustained during a cruise. The defendant, Carnival PLC, argues that De Jong should provide security for the costs of the litigation. This case presents a significant issue regarding the procedure for obtaining security for costs in representative proceedings, where De Jong is the representative of a class of passengers. Carnival PLC contends that the court lacks the authority to order security against individual group members but can do so against the representative party, De Jong. The court must determine the appropriate test for ordering security for costs in such cases, considering various factors including the financial status of the plaintiff, the absence of a litigation funder, and the capacity and willingness of group members to contribute.

The court's task was to delineate the criteria for ordering security for costs in representative actions. It examined the nature of the claims, the impecuniosity of De Jong, and the necessity of ensuring that any contribution from group members is proportionate to their individual claims. The court highlighted that while it lacks power to order security against individual group members, it retains the authority to require such an order from the representative party. The court considered the capacity and willingness of group members to contribute to the litigation costs and concluded that an opt-out notice should be sent to group members to ascertain their willingness and capacity to contribute. This approach ensures that the burden of costs is fairly distributed among the parties involved in the litigation.

The court ruled that De Jong, as the representative party, must provide security for costs, but the court cannot compel individual group members to do so. The decision underscores the importance of ensuring that any financial contribution from group members is proportional to their respective claims. The court also mandated the issuance of an opt-out notice to group members, requesting a statement of their capacity and willingness to contribute to the litigation costs. This ruling clarifies the boundaries of the court's authority in ordering security for costs in representative proceedings, ensuring a balanced approach that considers the financial implications for all parties involved.

Orders