Kim v Wang (No 2)

[2023] FCAFC 122

FEDERAL COURT OF AUSTRALIA

Kim v Wang (No 2) [2023] FCAFC 122   

Appeal from:

Kim v Hodgson Faraday Pty Limited [2022] FCA 1190

File number:

NSD 972 of 2022

Judgment of:

MOSHINSKY, LEE AND JACKMAN JJ

Date of judgment:

3 August 2023

Catchwords:

PRACTICE AND PROCEDURE – remitter – residual claim for compensation by representative applicant and claim for relief remitted to trial Judge – balance of the proceedings remitted for case management – orders made

Legislation:

Federal Court of Australia Act 1976 (Cth) Pt IVA, s 33ZB

Federal Court Rules 2011 (Cth) r 2.43(1)

Cases cited:

Kim v Wang [2023] FCAFC 115

Division:

General Division

Registry:

New South Wales

National Practice Area:

Commercial and Corporations

Sub-area:

Regulator and Consumer Protection

Number of paragraphs:

7

Date of hearing:

Determined on the papers

Counsel for the Appellant:

Mr BW Walker SC with Mr JE Mack and Mr TL Bagley

Solicitor for the Appellant:

RESURGAM Law Corporation

Counsel for the Respondent:

Mr DR Pritchard SC with Mr AJ Macauley

Solicitor for the Respondent:

KPL Lawyers

ORDERS

NSD 972 of 2022

BETWEEN:

KWANGHO KIM

Appellant

AND:

YINGJIE WANG

Respondent

ORDER MADE BY:	MOSHINSKY, LEE AND JACKMAN JJ
DATE OF ORDER:	3 AUGUST 2023

THE COURT ORDERS THAT:

1.The individual claim for compensation by the representative applicant be remitted to a trial Judge to determine, in conformity with the judgment of the Full Court, any entitlement to statutory compensation or other relief.

2.The balance of the proceedings, including the conduct of any group member claims, be remitted to the trial Judge for further case management. 

3.Pursuant to rule 2.43(1) of the Federal Court Rules 2011 (Cth), all amounts paid into Court by or on behalf of Mr Kim as security for Mr Wang’s costs of the proceedings, and any interest accrued on those amounts, be paid to the solicitor for the appellant, RESURGAM Law Corporation.

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

REASONS FOR JUDGMENT

MOSHINSKY J:

1. On 25 July 2023, the Full Court published reasons for judgment in this appeal.  For the reasons I gave, I would have dismissed the appeal.  The majority were of the view that the appeal should be allowed.  In light of the majority view, the consequential orders proposed by Lee and Jackman JJ in their reasons dated today are appropriate.

I certify that the preceding one (1) numbered paragraph is a true copy of the Reasons for Judgment of the Honourable Justice Moshinsky.

Associate:

Dated: 3 August 2023

REASONS FOR JUDGMENT

LEE AND JACKMAN JJ:

1. These reasons assume familiarity with Kim v Wang [2023] FCAFC 115.

2. By Order 6 made on 25 July 2023, the Full Court invited submissions from the parties as to what orders should be made as to the resolution of individual claims of group members and what, if any, orders should be made as to the individual claim of the appellant.

3. Mr Wang submits that no further order is required in relation to the individual claim of Mr Kim because no monetary judgment was sought on appeal, nor did the notice of appeal seek a remitter.

4. Having determined the issue as to contravening conduct adversely to Mr Kim, the balance of the issues in Mr Kim’s claim were not addressed by the primary judge. This claim ought to now be resolved consistently with the orders of the Full Court and such a course was contemplated in the submissions made on appeal (notwithstanding the absence of proposed orders in the notice of appeal).  It follows any remaining issues necessary to resolve the claim of Mr Kim should be remitted to a new trial Judge. There is no necessity nor desirability for any limitation to be put on the terms of the remitter.

5. As to the claims of group members, Mr Wang suggests that because no aggregate damages were sought and orders pursuant to s 33ZB of the Federal Court of Australia Act 1976 (Cth) (FCA Act) have been made, individual claims by group members “can be brought by those individual group members in whatever future forum is appropriate”.

6. The terms and structure of Pt IVA of the FCA Act accommodate directions being made for the resolution of individual group member claims, following an initial trial, in the context of an extant class action. Any orders and directions relevant to the determination of the individual claims of the group members, including any issues as to declassing, should also be left to the new trial Judge.

I certify that the preceding six (6) numbered paragraphs is a true copy of the Reasons for Judgment of the Honourable Justices Lee and Jackman.

Associate:

Dated: 3 August 2023