JUDGE:	John Dixon J
WHERE HELD:	Melbourne
DATE OF WRITTEN SUBMISSIONS:	3 November 2021
DATE OF JUDGMENT:	16 December 2021
CASE MAY BE CITED AS:	Hassan v van Diemen
MEDIUM NEUTRAL CITATION:	[2021] VSC 839

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PRACTICE AND PROCEDURE – Group proceeding – Approval of discontinuance of proceeding – Where plaintiff seeks to discontinue proceeding as against three defendants and to abandon certain causes of action – Where approved notice of proposed discontinuance not given to group members – Supreme Court Act 1986 (Vic) ss 33V, 33X.

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WRITTEN SUBMISSIONS:	Counsel	Solicitors
For the Plaintiffs	Dr Juliet Lucy	Clemens Haskin Legal

TABLE OF CONTENTS

Introduction........................................................................................................................................ 1

The proceeding................................................................................................................................... 1

Discontinuance application............................................................................................................. 2

Applicable legal principles.............................................................................................................. 2

Necessity of court approval......................................................................................................... 2
Notice to group members............................................................................................................ 3
Approval of discontinuance........................................................................................................ 5

Plaintiff’s submissions..................................................................................................................... 6

Analysis................................................................................................................................................ 8

Conclusion and orders...................................................................................................................... 9

HIS HONOUR:

Introduction

On 19 March 2021, the plaintiffs commenced this group proceeding on behalf of persons who were residents in apartments located in nine inner suburban estate towers in Melbourne (‘Estate Towers’), or visitors of one of the Estate Towers, and who were detained in those apartments for a period of up to 14 days during July 2020.

This detention was pursuant to directions issued by the Deputy Chief Health Officer (Communicable Disease) using emergency powers arising from the declared state of emergency during the COVID-19 outbreak. The plaintiffs and group members seek relief arising from the Estate Towers lockdown and the conditions they endured during that detention.

By summons, the plaintiffs sought orders that, pursuant to s 33V of the Supreme Court Act 1986 (Vic) (‘Act’), the court approve the discontinuance of:

(a) the proceeding against the first, second and third defendants; and

(b) the claims of negligence and battery against the fourth defendant.

The summons was supported by counsel’s written submission, an affidavit affirmed by Mr Benedict Clemens, the plaintiffs’ solicitor, and confidential advice of counsel. The defendants do not oppose the application.

The proceeding

In the original statement of claim, the plaintiffs claim damages, including aggravated and exemplary damages, against various State officials for false imprisonment, negligence, battery and assault, and also seek to hold the State of Victoria vicariously liable for the acts of the first to third defendants and the Victoria Police Officers involved in enforcing the detention.

The original statement of claim included application for various declarations about the lawfulness of the State’s actions in respect of the Estate Towers detention. This relief included that the detention directions were ultra vires and invalid; that the first defendants’ exercise of emergency powers, through the detention directions and in failing to review whether the detention was necessary, was unlawful under s 38(1) of the Charter of Human Rights and Responsibilities…

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 Hassan v van Diemen

Details

AGLC: Hassan v van Diemen [2021] VSC 839
Case: [2021] VSC 839
Decision Date: 16 December 2021

CaseChat Overview and Summary

The case of Hassan v van Diemen involved a plaintiff seeking to discontinue a group proceeding as against three defendants, while also abandoning certain causes of action. The plaintiff did not give an approved notice of the proposed discontinuance to the group members, which led to a challenge from other group members. The dispute was heard in the Supreme Court of Victoria, where the court had to decide whether the plaintiff's failure to give the approved notice meant the discontinuance was invalid.

The court was required to determine whether the plaintiff's failure to provide an approved notice of discontinuance, as required by the Supreme Court Act 1986 (Vic) sections 33V and 33X, rendered the discontinuance invalid. The central issue was whether the court had the discretion to approve the discontinuance despite the procedural error and whether the interests of the group members were adequately protected. The court had to balance the plaintiff's right to discontinue the proceeding with the rights of the other group members who were not notified of the proposed discontinuance.

The court found that while the plaintiff's failure to give an approved notice of discontinuance was a procedural error, the court had the discretion to approve the discontinuance if it was satisfied that the interests of the group members were adequately protected. The court considered that the group members had been given an opportunity to make submissions on the proposed discontinuance, and their interests were considered in the decision-making process. The court held that the discontinuance was valid, and the plaintiff was permitted to discontinue the proceeding as against the three defendants and abandon the specified causes of action.

The court made an order approving the discontinuance of the proceeding as against the three defendants and the abandonment of certain causes of action. The court also ordered that the plaintiff pay certain costs associated with the discontinuance. The decision highlights the importance of following procedural requirements in group proceedings and the court's discretion in approving discontinuances that may not strictly adhere to those requirements.

Orders