Kikuyu v Hazzard

[2022] FCA 310

FEDERAL COURT OF AUSTRALIA

Kikuyu v Hazzard [2022] FCA 310

File number:	NSD 1303 of 2021
Judgment of:	LEE J
Date of judgment:	25 March 2022
Date of publication of reasons:	30 March 2022
Catchwords:	PRACTICE AND PROCEDURE – representative proceedings pursuant to Pt IVA of Federal Court of Australia Act 1976 (Cth) (Act) – de-classing order – s 33N of the Act – whether all the relief sought can be obtained by means of a proceeding other than a representative proceeding – where only declaratory relief sought – whether in interests of justice to de-class the proceeding – application allowed
Legislation:	Federal Court of Australia Act 1976 (Cth) Pt IVA; ss 39N(1), 33N(1)(a), 33N(1)(b), 33N(1)(c), 33N(1)(d)
Division:	General Division
Registry:	New South Wales
National Practice Area:	Administrative and Constitutional Law and Human Rights
Number of paragraphs:	8
Date of hearing:	25 March 2022
Counsel for the Applicant:	Mr L P Cavell
Solicitor for the Applicant:	Maatouks Law Group
Counsel for the Respondents:	Mr T Prince with Mr H Cooper
Solicitor for the Respondents:	Crown Solicitor’s Office (NSW)

ORDERS

NSD 1303 of 2021

BETWEEN:

LORETTA KIKUYU

Applicant

AND:

BRADLEY RONALD HAZZARD, MINISTER FOR HEALTH NSW

First Respondent

ELIZABETH KOFF, SECRETARY FOR NSW HEALTH

Second Respondent

ORDER MADE BY:	LEE J
DATE OF ORDER:	25 MARCH 2022

THE COURT ORDERS THAT:

1.Pursuant to s 33N(1) of the Federal Court of Australia Act 1976 (Cth), the proceeding no longer continue as a representative proceeding under Pt IVA.

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT
(Delivered ex tempore, revised from the transcript)

LEE J:

1. By interlocutory application filed on 15 March 2022, the respondents seek a number of orders, including an order pursuant to s 33N(1) of the Federal Court of Australia Act 1976 (Cth) (Act) that this proceeding no longer continue as a representative proceeding under Pt IVA. 

2. Section 33N of the Act provides:

   33NOrder that proceeding not continue as representative proceeding where costs excessive etc.

   (1)  The Court may, on application by the respondent or of its own motion, order that a proceeding no longer continue under this Part where 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 representative 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 representative proceeding under this Part; or

   (c)  the representative 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 representative proceeding.

   (2)  If the Court dismisses an application under this section, the Court may order that no further application under this section be made by the respondent except with the leave of the Court.

   (3)  Leave for the purposes of subsection (2) may be granted subject to such conditions as to costs as the Court considers just.

3. Relevantly, it was contended that this class action would not provide an efficient and effective means of dealing with the claims of group members (s 33N(1)(c)), and that this was a case where all the relief sought could be obtained by means of a proceeding other than the representative proceeding: s 33N(1)(b).

4. Section 33N of the Act requires two steps. The first is to ascertain the existence of one of the matters referred to in ss 33N(1)(a)–(d). Once one of those matters has been identified (including the catch-all in s 33N(1)(d)), then Court must, secondly, reach a level of satisfaction that it is the interests of justice to make an order on the basis of the factor identified that the proceeding no longer continue as a class action. No opposition is advanced by the applicant to the de-classing of the proceeding. However, I still need to be satisfied it is appropriate to make an order. In my view, is only necessary for me to satisfy myself that s 33N(1)(b) is engaged and then deal with the question of whether or not I have reached the level of satisfaction that it is in the interests of justice to make a de-classing order.

5. The amended originating application filed by the applicant on 28 February 2022 seeks the following relief:

   1.A declaration that each of the Orders is invalid.

   2.A declaration that the Determination is invalid.

   3.Costs.

   4.Such other orders as the Court deems fit.

6. As pleaded in the amended statement of claim, the “Orders” are defined as being certain public health orders made by the New South Wales Minister for Health affecting the applicant and group members, and the “Determination” is defined as being a determination made by the “Secretary of the New South Wales Department of Health”.

7. No claim for any form of damages or relief bespoke to individual group members is claimed. The matter can be characterised as an application for declaratory relief which will be either be made or refused. Although the fact that only declaratory relief is claimed is not necessarily a basis to establish that a class action would not be appropriate, there does not seem to me, in this case, to be any utility in such relief being claimed on behalf of persons other than the representative applicant. This, no doubt, has informed the decision made by the representative applicant not to oppose the orders sought.

8. In the circumstances, I am satisfied that all the relief sought can be obtained by means of an ordinary inter partes proceeding and I am further satisfied that because of this matter, it is in the interests of justice to de-class the proceeding.

I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Lee.

Associate:

Dated:       30 March 2022