Green v Graincorp Oilseeds Pty Ltd
[2023] VSC 395
•13 July 2023
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
CIRCUIT LIST
S ECI 2021 04524
| KEVIN CARLING GREEN & ORS (ACCORDING TO THE ATTACHED SCHEDULE) | Plaintiff |
| v | |
| GRAINCORP OILSEEDS PTY LTD (ACN 006 772 578) | Defendant |
---
JUDGE: | John Dixon J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 2 June 2023 |
DATE OF JUDGMENT: | 13 July 2023 |
CASE MAY BE CITED AS: | Green & Ors v Graincorp Oilseeds Pty Ltd |
MEDIUM NEUTRAL CITATION: | [2023] VSC 395 |
---
PRACTICE AND PROCEDURE – Application to ‘convert’ proceeding into group proceeding by amending existing writ and statement of claim – Source of jurisdiction – Meaning of ‘commenced’ – Plaintiff need only meet requirements for valid Pt 4A pleading – Not necessary to verify such requirements – Sufficiency of group definition – Supreme Court Act 1986 (Vic) ss 33C, 33D, 33H, 33N, 33ZF.
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Dr M Sharpe | D S T Legal |
| For the Defendant | Ms P A Neskovcin KC with Mr R Chaile | Ashurst |
TABLE OF CONTENTS
Relevant statutory provisions.......................................................................................................... 4
Source of the court’s jurisdiction.................................................................................................... 5
Compliance with Part 4A.................................................................................................................. 9
Section 33N........................................................................................................................................ 16
Conclusion......................................................................................................................................... 17
HIS HONOUR:
The first plaintiff seeks leave to commence a representative proceeding pursuant to Part 4A of the Supreme Court Act 1986 (Vic). The first plaintiff with two others has already commenced a proceeding against the defendant, Graincorp Oilseeds Pty Ltd, and in substance the plaintiff seeks the court’s leave to commence a group proceeding under Part 4A by filing and serving an amended statement of claim.
The plaintiffs, Mr Green, his partner Samantha Sharpe and their daughter Katie Green issued a writ on 1 December 2021 against Graincorp, which operates an oilseed factory in Numurkah. The writ was not served on Graincorp until 30 November 2022 and in the intervening period the parties negotiated in an attempt to resolve the dispute.
The plaintiffs own and reside directly opposite the Graincorp factory, within about 100 metres of it in an area with a residential zoning. Graincorp’s oilseed factory uses mechanical, thermal and chemical processes to crush, and refine, large volumes of oilseed. Its operations are regulated by a license issued under s 20 of the Environment Protection Act 1970 (Vic) and an amended planning permit issued by the Moira Shire. The plaintiffs claim that in its operation, Graincorp’s factory has, since at least 10 January 2017, continuously emitted excessively loud noise and continuously emitted offensive odour.
First, the plaintiffs claim, in nuisance, that the emissions have caused a substantial interference to the use and enjoyment of the plaintiffs’ property and of the affected land of group members.
Secondly, the plaintiffs claim that Graincorp owes a duty under s 25 of the Environment Protection Act to minimise the risks of harm to the plaintiffs and group members’ health or the environment from pollution so far as reasonably practicable, which duty has been breached by its conduct in permitting the said emissions.
By the proposed amended pleading, the first plaintiff would continue as the representative plaintiff, the second and third plaintiffs ceasing to be parties, on behalf of a group defined in the following terms.
The Plaintiff seeks to bring a representative proceeding pursuant to Part 4A of the Supreme Court Act 1986 (Vic) on his own behalf and on behalf of all persons (the Group Members) who have:
(a)owned or occupied land in Numurkah, Victoria within 1 km of the Graincorp Factory located at 46-50 McDonald Street, Numurkah, in the State of Victoria (the Graincorp Factory) any time after 1 January 2017 (the Affected Land); and
(b)suffered loss or damage as a consequence of offensive odours and/or noise:
(i)emitted by the Defendant from the Graincorp Factory located at 46-50 McDonald Street, Numurkah, in the State of Victoria (the Graincorp Factory); and
(ii)caused by the Defendant’s processing operations to manufacture oilseed at the Graincorp Factory, where ‘loss or damage’ means a capital loss (diminution in the capital value of the Plaintiff’s and Group Members’ interest in their land) and/or a loss of acoustic and/or olfactory amenity value (including sleep disturbance, distress, inconvenience, annoyance and upset) (amenity loss).
The plaintiff has identified questions of law or fact common to the claims of the plaintiff and the group members. The plaintiff claims damages, damages pursuant to s 313 of the Environment Protection Act, aggravated and exemplary damages, and other relief. Paragraph 25 of its proposed pleading states―
The questions of law or fact common to the claims of the Plaintiff and the Group members are:
(a) in respect of the claims regarding Nuisance:
(i)Has the Defendant complied at all times since 1 January 2017 with the amenity conditions of the Licence?
(ii)Has the Defendant complied at all times since 1 January 2017 with the Permit?
(iii)Has the Defendant’s processing operations to manufacture oilseed at the GrainCorp Factory caused a substantial interference with the Plaintiff’s and Group Members’ use and enjoyment of their land?
(iv)if yes, is the Defendant’s interference reasonable?
(v)what is the nature and extent of the interference?
(vi)does the GrainCorp Factory Noise constitute a nuisance?
(vii)if the GrainCorp Factory Noise does constitute a nuisance have the Plaintiff and/or the Group Members suffered loss and/or damage as a consequence of that nuisance?
(viii)does the GrainCorp Factory Odour constitute a nuisance?
(ix)if the GrainCorp Factory Odour does constitute a nuisance have the Plaintiff and/or the Group Members suffered loss and/or damage as a consequence of that nuisance?
(b)in respect of the claim relating to the Defendant’s breach of its General Environment Duty:
(i)did the Defendant know that its processing operations to manufacture oilseed at the Graincorp Factory could cause risks of harm to the health of the Plaintiff and Group Members?
(ii)has the Defendant taken adequate and/or effective precautions to minimise the risk of harm to the health of the Plaintiff and Group Members?
(iii)does the Defendant owe a General Environment Duty to the Plaintiff and Group Members?
(iv)if the Defendant does owe such a duty, has the Defendant breached that duty?
(v)if the Defendant has breached its General Environment Duty has the Plaintiff and/or the Group Members suffered loss and damage as a consequence of that breach?
(c)in respect of the claim for damages and an injunction:
(i)are damages an adequate remedy for nuisance?
(ii)are the Plaintiff and Group Members entitled to an award of damages for capital loss?
(iii)are the Plaintiff and Group Members entitled to an award of damages for amenity loss?
(iv)if so, what is the quantum of that loss and damage?
(v)are the Plaintiff and Group Members entitled to an award of aggravated and exemplary damages?
(vi)has the Defendant acted in contumelious disregard of the Plaintiff’s and Group Members’ rights to live peacefully in their homes?
No defence has been filed.
Graincorp opposes the plaintiff’s application. It submitted, in summary, that although s 33ZF of the Supreme Court Act empowers the court to permit a proceeding, not originally commenced under Part 4A of the Act, to continue as a group proceeding as though it had been commenced under that path, the court should refuse that relief. This is because the proceeding will fail to comply with s 33C of the Act in that the claims for the proposed group members will not give rise to ‘a substantial common question of law or fact’.
Alternatively, Graincorp submitted that in the exercise of its discretion, the court should refuse the orders sought as futile. If leave were granted, Graincorp would seek an order that the proceeding no longer continue as a group proceeding by an application pursuant to s 33N of the Act because the lack of commonality between group members means that the group proceeding will not provide an efficient and effective means of dealing with the claims of group members and/or is otherwise inappropriate for the pursuit of such claims by means of a group proceeding.
Relevant statutory provisions
It is convenient to set out the relevant sections, noting the use of the word ‘commenced’.
33C Commencement of proceeding
(1) Subject to this Part, if—
(a)seven or more persons have claims against the same person; and
(b)the claims of all those persons are in respect of, or arise out of, the same, similar or related circumstances; and
(c)the claims of all those persons give rise to a substantial common question of law or fact—
a proceeding may be commenced by one or more of those persons as representing some or all of them.
(2) A group proceeding may be commenced—
(a) whether or not the relief sought—
(i) is, or includes, equitable relief; or
(ii) consists of, or includes, damages; or
(iii)includes claims for damages that would require individual assessment; or
(iv)is the same for each person represented; and
(b) whether or not the proceeding—
(i)is concerned with separate contracts or transactions between the defendant and individual group members; or
(ii)involves separate acts or omissions of the defendant done or omitted to be done in relation to individual group members.
33H Originating process
(1) A group proceeding must be commenced by writ.
(2)The indorsement on the writ must, in addition to any other matters required by the Rules to be included—
(a)describe or otherwise identify the group members to whom the proceeding relates; and
(b)specify the nature of the claims made on behalf of the group members and the relief claimed; and
(c)specify the questions of law or fact common to the claims of the group members.
(3)In describing or otherwise identifying group members for the purposes of subsection (2), it is not necessary to name, or specify the number of, the group members.
33NProceeding not to continue under this Part
(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 interests 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.
Source of the court’s jurisdiction
That the court has power to grant the relief sought by the plaintiff appears to have attracted some controversy in the expression of the source of the power in the cases.[1] Those cases deal with the identical provisions of Part IVA of the Federal Court of Australia Act 1976 (Cth). Originally, an argument that a proceeding that had already been ‘commenced’ by being issued could not be ‘commenced’ again under Part IVA, had some appeal. Why this argument must be rejected seems to lie at the heart of this apparent controversy.
[1]Compare Finance Sector Union of Australia v Commonwealth Bank of Australia (1999) 89 FCR 417; Sreika v Cardinal Financial Securities Limited [2000] FCA 1647; Meaden v Bell Potter Securities Ltd (No 6) [2013] FCA 1176; Watson v AWB Limited [2007] FCA 1367; Wingecarribee Shire Council v Lehman Brothers Australia Ltd (in Liq) (No 3) [2010] FCA 747.
Two cases may briefly be referred to, noting that all relevant cases are referenced within these decisions. In Watson v AWB Limited,[2] Foster J rejected this argument, permitting a proceeding to commence under Part IVA by an amendment, reasoning that a proceeding under that Part does not exist until the amendment is permitted and accordingly will then exist and so be ‘commenced’ once the amendment is made.
[2]Watson (n 1).
In Wingecarribee Shire Council v Lehman Brothers Australia Ltd (in Liq) (No 3), Rares J observed:
Section 33C(1) enables proceedings to be commenced under Part IVA. The section does not require that any proceedings brought under the Part must always originate as proceedings under it. There is a reasonable basis to consider that the section is intended to be expansive, rather than constrictive, of the court’s powers. It is quite inappropriate to read provisions conferring jurisdictional concerning powers on a court by making implications or imposing limitations which are not found in the express words. In addition, the court has powers to permit the amendment of proceedings. Those powers of amendment are not displaced by anything especially said in Part IVA.[3]
[3]Wingecarribee, [6] (n 1).
With respect, the obiter observations of Rares J capture correctly why a group proceeding may be commenced by amendment of an existing proceeding.
As the plaintiff submitted, Part 4A does not confer any new jurisdiction on the court but merely creates new procedures and endows the court with new powers to manage group proceedings. Part 4A is procedural, not substantive.[4]
[4]Poignand v NZI Securities Australia Ltd (1992) 109 ALR 213, 216; Wong v Silkfield Pty Ltd (1999) 165 ALR 373, 374 [1]; Mobil Oil Australia Pty Ltd v Victoria (2002) 189 ALR 161, 165-6 [10]; BMW Australia Ltd v Brewster (2019) 269 CLR 574, 628 [136]; BHP Group Ltd v Impiombato (2022) 405 ALR 402, 404 [6]-[7], 415 [54].
In BHP Group Limited v Impiombato, the High Court relevantly observed:
The procedures which Pt IVA creates, and powers which it gives to the Federal Court, do not stand alone. Part IVA is framed on the assumption that it will operate concurrently with the procedures and powers of the Federal Court which relate generally to the exercise of the jurisdiction conferred on it.[5]
[5]Impiombato, 415 [7] (n 4).
Significantly, the context in which the term ‘commenced’ must be understood, where used in Part 4A, is not limited to that Part of the Act but must necessarily be considered in the context of the Act as a whole and the Supreme Court (General Civil Procedure) Rules 2015 (Vic), since the commencement of a proceeding in the court is regulated by the Act and the Rules made under it.
A proceeding to which Chapter 1 of the Rules applies, is ordinarily commenced by filing a writ or originating motion in accordance with Order 5 of the Rules. There are additional requirements that define a group proceeding under Part 4A. The originating process must be a writ (s 33H) and, for a group proceeding to be validly commenced, the requirements of ss 33C and 33D must be met. In order to demonstrate that those matters have been met, the requirements of s 33H must also be met. Whether those requirements are met by the initial process or by amendment, leaves unaffected the sense in which ‘commenced’ is used in Part 4A, for what is being commenced is not a proceeding per se but a group proceeding.
It follows that nothing in the language of Part 4A constrains the notion of amendment of an originating process to commence a group proceeding, whether that be amendment of the parties to the proceeding or of the claims made in the proceeding, pursuant to Chapter 1 of the Rules. If such powers are exercised in a manner that results in an existing (issued and served) proceeding being amended to comply with Part 4A of the Act, then a group proceeding has then been commenced.
It is correct not to confine the meaning of the word ‘commenced’ to the action of initially filing a writ or other originating process[6] at the court registry. In the context, the contention is misconceived that a proceeding can only be commenced once, and once commenced it can make no sense that the same proceeding can be commenced again. The essential nature of the issued proceeding can be changed in myriad ways. One way is to satisfy the requirements of Part 4A to commence a group proceeding. Another way is to satisfy the requirements of Order 9 of the Rules and join additional parties. The concept with which Part 4A is concerned is the commencement of a group proceeding not the commencement of any proceeding.
[6]A group proceeding cannot be commenced by originating motion (s 33H), but an originating motion can be amended to stand as a writ and the court can direct that a proceeding continue as if commenced by writ.
In my view, this conclusion follows from the proper construction of the statute and it is unnecessary to determine whether the power to commence a group proceeding by amendment of an existing proceeding is found either pursuant to ss 47 and 48 of the Civil Procedure Act 2010 (Vic), as the plaintiff submitted, or s 33ZF of the Supreme Court Act, as Graincorp submitted. That said, either of those provisions would seem to facilitate the same conclusion.
As the plaintiff submitted, the court is required under s 8 of the Civil Procedure Act to give effect to the overarching purpose in the exercise of any of its powers or the interpretation of those powers and, in doing so, is to have regard to the objects as set out in s 9 of the Act. Further, the court has a discretion under s 47 of the Act to give any direction or make any order it considers appropriate, including a discretion under s 48(2)(a) to ‘give any directions or make any orders it considers appropriate with respect to … the conduct of proceedings’. The court’s discretion under these sections of the Act is wide.[7]
[7]G4S Australia Pty Ltd v Kamasaee [2017] VSCA 121, [6].
While Graincorp agreed that the court likely has the power to make an order allowing a proceeding commenced under Part 4A to continue thereafter as a group proceeding as though it had been commenced under that Part, it submitted that the source of the court’s power is not s 47 of the Civil Procedure Act, but rather s 33ZF of the Supreme Court Act, set out above. This power, too, is broad.[8] It is not necessary to set out how Graincorp developed this submission.
[8]Brewster, 599 [47] (n 4).
Compliance with Part 4A
Graincorp submitted that notwithstanding that the court has the power to permit the amendment, it should not in fact make that order since the proceeding fails to meet the basic requirements of s 33C.
The Court of Appeal in Uber Australia Pty Ltd v Andrianakis,[9] reviewed the relevant authorities touching on those requirements and stated:
[9](2020) 61 VR 580, 608 [79] (citations omitted).
The principles concerning the proper interpretation and application of s 33C of the Act which are relevant to this case may be summarised as follows:
(1)Courts have adopted a reasonably liberal approach to ss 33C(1)(b) and (c). The words of s 33C are wide and should be applied according to their terms and the expressed legislative purpose: to avoid multiplicity of proceedings and facilitate group proceedings, consistently with the requirements of fairness and individual justice.
(2)The only requirement to satisfy s 33C(1)(b) is that the circumstances underlying the various claims must be similar or related. The word ‘related’ suggests a connection wider than identity or similarity.
The successively broadening provisions in sub-s (2) emphasise the width of the requirement.
(3)The requirement in s 33C(1)(c) for a ‘substantial’ common issue of law or fact refers to issues which are ‘real or of substance’, not ‘large’ or ‘of special significance’; in the sense that the question will ‘have a major impact on the ... litigation’ or will be the ‘major’ or ‘core’ issue at trial.
(4)The word ‘claims’ refers to the facts which constitute the causes of action of the plaintiff and the other group members, as well as the legal basis of those causes of action. It is those facts, or those legal principles, which are ‘required to be in respect of, or arise out of, similar or related circumstances and give rise to one substantial common issue of law or fact’. A claim will be sufficiently closely connected either if the underlying facts or the underlying legal principles raised by the facts are sufficiently closely connected.
In substance, Graincorp objected that the proposed amendment did not identify with sufficient precision the group members to be bound to any determination, or settlement approval, by the court. Further, the common questions to be determined lacked specificity.
When assessing the sufficiency of the group definition, it is convenient to refer to the observations of Beach J in Jay Wisbey & Associates Pty Ltd v UBS AG,[10] in the context of the equivalent s 33H(1)(a) of the Federal Court Act.
Section 33H(1)(a) of the Federal Court Act 1976 (Cth) requires that an application commencing a representative proceeding describe or otherwise identify the group members to whom the proceeding relates. But no unduly narrow or technical approach should be taken to this requirement. It should be construed and applied bearing in mind the function that it is intended to perform under Pt IVA.
Group members must be described or identified so that they can be notified of the proceeding and can decide whether to opt out pursuant to s 33J. Another function of s 33H(1)(a) is so that the Court can identify who is bound by any judgment for the purposes of s 33ZB.
The pleading must not be so vague or uncertain that potential group members cannot reasonably ascertain whether they are members of the group. A group definition should not give rise to significant uncertainties or ambiguities in this respect.
Some practical questions may be posed. Is the description such as to reasonably enable a person, with the assistance of a legal adviser if necessary, to ascertain whether he is a group member? And if the description incorporates a reference to conduct alleged in the pleadings, can a person or his adviser, by reading the description and the relevant portion of the pleadings, reasonably determine whether he is a group member? If the answer is no to either or both questions, the definition is unlikely to satisfy s 33H(1)(a). But clearly, the fact that inquiries might need to be made by a person who is uncertain of whether they are a group member does not deprive the description of objective criteria by reference to which membership can be established. And the fact that potential group members may need to make inquiries to ascertain whether they fall within the group definition does not render that definition inadequate for the purposes of s 33H(1)(a).[11]
[10][2021] FCA 36.
[11]Ibid [13]-[16]; Thomas v Commonwealth Financial Planning Ltd (2021) 153 ACSR 1, 8 [50].
The proposed group definition in this proceeding will be based upon three particular characteristics of potential group members. First, they must own or occupy land in Numurkah and that land must be within one kilometre of the Graincorp factory and ownership must be at any time after 1 January 2017. In my view, the issue of the ownership or occupation of affected land is neither vague nor uncertain and presents no practical difficulties for potential group members. The second characteristic of the group definition is that the group member must have suffered loss or damage as a consequence of offensive odours and/or noise emitted by Graincorp from the Graincorp factory. The third characteristic is that the loss and damage as a consequence of offensive odours and/or noise was caused by Graincorp’s processing operations.
Loss or damage is defined as a capital loss and/or an amenity loss, where the former is a diminishing in the capital value of the group members’ interest in their land and the latter is a loss of acoustic and/or olfactory amenity value (including sleep disturbance, distress, inconvenience, annoyance and upset). Again, the specific characteristics identified by the group definition are neither vague nor uncertain.
I am satisfied that a resident of Numurkah is reasonably enabled, with the assistance of a legal advisor if necessary, to ascertain whether they are a group member, specifically addressing whether a group member owns or occupies affected land, and has experienced offensive odours and/or noise emitted from the Graincorp factory and suffered capital loss or amenity loss caused by Graincorp’s processing operations.
In many respects, Graincorp’s submissions were misconceived in that it sought to address the merits of these allegations about group membership and the common questions that were said to arise. So much was clear from Graincorp's submission that the plaintiff had merely asserted that the claims give rise to substantial common questions of fact and law, and that this assertion failed properly to engage with the underlying nature of a claim in nuisance and a statutory claim for breach of a general environmental duty. Graincorp’s submissions appeared to overlook the obvious distinction between proof of allegations at trial and the presumption – for the purposes of assessing the adequacy of a pleading, in this case whether it complies with ss 33C and 33H(2) – that the allegations in the pleading can be established at trial. This is not an application for summary dismissal. In evaluating Graincorp’s submission it is relevant to recall that, as I explained in greater detail in Fabfloor (Vic) Pty Ltd v BNY Trust Company of Australia Ltd,[12] it is not now and never has been the law of this State that, absent special circumstances, a party must by evidence verify in advance whether a claim to be pleaded in a proceeding will, on its merits, satisfy the requirements of ss 33C and 33H(2). The court assumes, because the proper basis for the allegations has been certified, that the party advancing the pleading can establish its allegations at trial. This conventional pleading test is well established.
[12](2016) VSC 99.
This presumption may be rebutted, but doing so generally raises the distinction between an application for leave to amend a pleading and other application such as for summary judgment or to strike out a pleading or part thereof. Such applications either require, or may be supported by, evidence on affidavit. There were no such application before the court.
Graincorp further submitted:
(a) A mere occupier may not have a sufficient interest to make a claim in nuisance, giving the example of the existing third plaintiff who occupies the affected land personally as a resident, a family member. Graincorp submitted that the group definition adopted an unduly broad starting point that would capture persons who would have no entitlement to make a claim in nuisance. I am not persuaded by this submission, since ‘owned or occupied’ in the context of the proposed group definition would be interpreted sensibly in context. But, further, a proposed group member who is not entitled to claim in nuisance may be entitled to claim for the breach of the general environmental duty. Further, the submission seemed to point to the distinction between occupiers, invitees and trespassers but that distinction, which was barely developed, is unhelpful. The third plaintiff is not to continue as a plaintiff in the proceeding and would need to satisfy all of the criteria defining the group to qualify as a group member.
(b) Whether a person has a claim in private nuisance is determined having regard to the particular circumstances of the claimant. I consider this submission to be misleading. While such matters are relevant, the nuisance claim also depends on analysis of the conduct of the defendant. Section 33C(2)(b) of the Supreme Court Act makes it clear that the fact that group members’ claims depend on individual circumstances, in addition to common questions of law and fact, is not an impediment to commencing a group proceeding. For the same reason, Graincorp’s third objection, that land within a one kilometre radius of the Graincorp factory maybe subject to different land use zonings, is not relevant.
(c) There is no justification of why an arbitrary one kilometre is applied in the group definition. Graincorp has not persuaded me to regard the radius as arbitrary or in need of justification on this application.
(d) The specific statutory regime of the Environment Protection Act, particularly the concept of an ‘eligible person’, has not been addressed. To the extent that this submission contends that the applicable statutory requirements will need to be assessed on a case-by-case basis, for reasons already stated, that is not a sufficient basis for rejecting the proposed claim. Other matters raised by Graincorp appear to be matters that ought to be pleaded by a defence or to be the subject of requests for further particulars.
(e) There are a number of deficiencies in the common questions proposed by the plaintiff, analysed by reference to each question pleaded. I was not persuaded that the pleading fails to identify any substantial common question of law or fact, which is the relevant test at this stage and only one is needed. It is premature and inappropriate to determine, on this occasion, whether each and every question is appropriate because it is not clear whether the common questions as presently pleaded are those that will ultimately proceed to trial and in what form. On the relevant question, Graincorp has not persuaded me that there is not a substantive common question of law or fact to be determined in the proceeding on behalf of group members such that the amendment should be rejected as futile.
(f) The individual nature of a claim in nuisance, and in the statutory claim for breach of the general environmental duty under the Environment Protection Act, made achievement of the requirements in s 33C impracticable, such that it would not be possible for the court to determine the common issues in a way that would properly bind each group member to the consequences of a determination or the approvement of a settlement. This conclusion was said to follow upon observations made by Emerton J in Wheelahan v City of Casey.[13] However, that citation is of the court’s reasons when approving the settlement of a class action that included claims for nuisance. An observation that ‘it is not practicable to assess the position of each group member individually’ made in that context is irrelevant to the issues arising on this application.
[13](2011) VSC 215, [81].
The plaintiff submitted that the formal requirements of Part 4A are satisfied by the proposed amended statement of claim. The proceeding will:
(a) consist of no fewer than 7 people who have similar or related claims which give rise to a substantial common question of law or fact;
(b) is a proceeding commenced by writ; and
(c) the amended statement of claim:
(i) describes or otherwise identifies the group members to whom the proceeding relates;
(ii) specifies the nature of the claims made on behalf of the group members in the relief claimed;
(iii) specifies the question of law or fact common to the claims of the group members.
As the Court of Appeal made clear in Uber,[14] the circumstances underlying the various claims of group members must be similar or related. A reasonably liberal approach to s 33C(1)(b) and (c) is to be adopted and I am not persuaded that the pleading in its current form is inconsistent with the requirements of fairness and individual justice. Further, the facts that constitute the causes of action of the plaintiff and group members in this proceeding also include the conduct of Graincorp. So much is plain from the proposed pleading. Yet, Graincorp’s submissions are based almost entirely upon only those facts that relate to issues in the claims of individual group members. Graincorp submitted that the threshold requirement under s 33C cannot be satisfied where a claim in nuisance is concerned not with the relevant conduct but with the effect of that conduct upon individual circumstances. An obvious deficiency in that submission is that it overlooked the fact that the right or entitlement to relief of the plaintiff and group members also involved assessment of the circumstances constituted by the conduct and operations of Graincorp. Once there is a focus on that aspect of the claim, some of the proposed common questions are, generally, clearly and appropriately being raised by the proposed pleading. It is a legitimate criticism to note that some issues for trial in the proceeding identified as common questions concern the plaintiff’s claims, but it cannot be said that no common questions are identified. The plaintiff should review the pleading in this regard before the amendment is filed.
[14](n 9).
To the extent that Graincorp analysed in submissions the allegations touching on its own conduct, it was critical of the pleading and its particularisation. There was some force in these criticisms and the plaintiff ought also carefully to review the pleading in the light of those submissions. Accepting that a proper basis for the pleading has been certified and that the material allegations satisfy the statutory requirements, these issues may be enlivened by an appropriate application in due course, rather than providing grounds to refuse the proposed amendment. Plainly, Graincorp’s conduct of its business is not a matter within the knowledge of the plaintiff and its pleading focusses on the consequences for the plaintiff of the operation of the business. More precision is likely to follow on after discovery and briefing of experts. In proceedings of this sort, this is not uncommon.
Section 33N
Graincorp submitted that I should determine pursuant to s 33N(1)(c) and (d) of the Supreme Court Act that it would be inefficient and inappropriate for the proceeding to continue as a group proceeding.[15] It would therefore be futile to grant leave to amend. This submission was not put as an application to declass the proceeding, but as a relevant consideration on the application for leave to amend. Its submission was based on the following propositions.
[15]The applicable principles relevant to s 33N were conveniently collected by J Forrest J in AS v Minister for Immigration and Border Protection [2017] VSC 137, [61]-[67].
There is a lack of commonality in the questions of fact and law to be determined by the court given the individual nature of the claims in nuisance and for breach of the general environmental duty under the Environment Protection Act. I do not accept this submission. It is not necessary for the representative plaintiff’s claim to determine all, or for that matter even a substantial number, of the identified common issues. As already noted, the identifiable common issues in the proposed pleading relate principally, in the nuisance claim, to the cause of the substantial interference to the use and enjoyment of the affected land of group members, or, from the perspective of the environmental duty claim, to the circumstances of breach by Graincorp of the general environmental duty alleged under s 25. It may be accepted that individual elements of the claims of group members, such as the assessment of loss and damage and, perhaps, aspects of causation, will not be common but rather fall for consideration on their individual circumstances. It is a submission that falls well short of demonstrating that the benefits of a group proceeding would be entirely illusory in the present circumstances, or that a group proceeding may be inefficient or inappropriate.
It does not follow that the need for the resolution of individual claims, following the determination of the common questions, results in an outcome that would not be substantially different to a process of requiring each affected person to pursue an individual claim. This is a common feature of mass tort class actions.
Next, Graincorp submitted, somewhat imperiously, that the plaintiff’s proposed legal representatives lacked the capacity to efficiently and properly administer a group proceeding, pointing to the lack of evidence of a kind that might be placed before the court if there were multiple group proceedings and a dispute as to which firm of solicitors ought to have carriage. It is irrelevant to suggest that there is no evidence before the court about such matters because the issue of the capabilities of the plaintiff’s solicitors is irrelevant to the s 33N questions. On the other hand, there is clear evidence that the basic policy objectives of Part 4A – facilitating access to justice – will come into play, as some group members lack the financial means to litigate any claim against Graincorp. Further, it is difficult to understand why Graincorp would not prefer to deal with all of these claims in one proceeding having regard to its own exposure to costs and expenses in defending these claims.
I am not persuaded by reference to s 33N considerations to exercise a discretion not to permit the amendments.
Conclusion
I have not been persuaded that the group proceeding will not provide an efficient and effective means of dealing with the claims of group members or that it is inappropriate that the claims be pursued by means of a group proceeding. In particular, the group proceeding is an efficient and appropriate method of dealing with the factual and legal allegations that focus on the conduct of Graincorp as opposed to the consequences for group members. I am persuaded that it is in the interests of justice to allow the claims of group members to be advanced through amendment of this proceeding to commence it as a group proceeding. If any group member considers that this approach is not in their interests, there will be an opportunity during the opt-out process for that group member’s position to be appropriately taken into account.
I will order the title of the proceeding be amended by deleting Samantha Lee Sharpe and Katie Rose Green as the second and third plaintiffs, respectively, and I grant leave to the remaining plaintiff, Kevin Carling Green, to amend the writ accordingly. I will otherwise grant the relief sought by the first plaintiff in his summons filed 21 February 2023. ---
SCHEDULE OF PARTIES
S ECI 2021 04524
| KEVIN CARLING GREEN | First Plaintiff |
| SAMANTHA LEE SHARPE | Second Plaintiff |
| KATIE ROSE GREEN | Third Plaintiff |
| and | |
| GRAINCORP OILSEEDS PTY LTD (ACN 006 772 578) | Defendant |
17
0