McDonald's Australia Ltd v Watson

[2013] VSC 502

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMON LAW DIVISION
PRACTICE COURT

S CI 2013 03630

McDonald's Australia Limited (ACN 008 496 928)	Plaintiff
v
Janine Watson and Others	Defendants

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JUDGE:	KYROU J
WHERE HELD:	Melbourne
DATES OF HEARING:	18 July, 27 August 2013.  Further submissions filed by the plaintiff on 13 September 2013.
DATE OF JUDGMENT:	20 September 2013
CASE MAY BE CITED AS:	McDonald’s Australia Ltd v Watson
MEDIUM NEUTRAL CITATION:	[2013] VSC 502

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PRACTICE AND PROCEDURE — Representative proceeding — Preconditions for making representative order — Discretionary considerations — Jurisdiction of Court to grant an injunction against unnamed persons — Overarching purpose — Civil Procedure Act 2010 ss 7, 8, 9 — Supreme Court (General Civil Procedure) Rules 2005 O 18.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr F Parry SC with Mr C E Shaw	Norton Rose Fulbright
For the Defendants	Dr K L Hanscombe SC with Ms K Bowshell	Maurice Blackburn

TABLE OF CONTENTS

Introduction and summary............................................................................................................... 1

Relevant statutory provisions.......................................................................................................... 7

Orders 9 and 18 of the Rules....................................................................................................... 7
Civil Procedure Act 2010............................................................................................................. 9

Relevant legal principles.................................................................................................................. 9

Representative proceedings........................................................................................................ 9

Purpose and preconditions for a representative order..................................................... 9
Identifiable group or class is not a precondition............................................................. 12
Management or control of the represented group is not a precondition..................... 14
Precondition: Common interest.......................................................................................... 14
Precondition: Numerous persons...................................................................................... 19
Discretionary: Willingness to act as a representative or to be represented................. 20
Effect of a claim for damages in tort................................................................................... 22
Identity of defences is not a precondition......................................................................... 22
Discretionary: Suitability of representative...................................................................... 23
Timing of common interest and whether the class can be amended............................ 25

Jurisdiction to grant an injunction against an unnamed person.......................................... 28

Whether the preconditions for a representative order are satisfied....................................... 29

Attributes of the protest group in the present case............................................................... 29
Preconditions for a representative order satisfied................................................................. 33

Suitability of the first defendant as representative................................................................... 34

Suitability of the seventh defendant as representative............................................................ 38

Order to give effect to this judgment............................................................................................ 40

HIS HONOUR:

Introduction and summary

1. This proceeding concerns the activities of a group of protesters who want to prevent the plaintiff from building a McDonald’s restaurant at its land at 1529, 1529A and 1531 Burwood Highway Tecoma (‘McDonald’s Land’).  The protest group has various names, including ‘No McDonald’s in the Dandenong Ranges’ and ‘Burger Off’.

1. Many residents of Tecoma, some of whom belong to the protest group, objected to the plaintiff’s application for a planning permit to build the McDonald’s restaurant and the local council rejected the application.  However, the plaintiff succeeded in an appeal to the Victorian Civil and Administrative Tribunal (‘VCAT’) and there has not been an appeal from VCAT’s decision.  Accordingly, the plaintiff has a legal right to build the restaurant on the McDonald’s Land.  

1. On 1 July 2013, the plaintiff commenced preparatory work for the demolition of the existing buildings on the McDonald’s Land.  For that purpose, it set up some plant and equipment on the McDonald’s Land and on the adjoining land at 1533 Burwood Highway Tecoma (‘Next Door Land’) pursuant to a licence from the owner of the Next Door Land.

1. From the outset, the protest group sought to thwart the demolition process by trespassing onto the McDonald’s Land and the Next Door Land (collectively ‘Land’) and by obstructing vehicles and workers entering the Land.  Some protesters climbed onto the roofs of buildings on the McDonald’s Land and refused to come down when requested to do so. 

1. The plaintiff commenced this proceeding by generally indorsed writ filed on 16 July 2013.  The writ named eight defendants, Janine Watson as first defendant, Karl Williams as second defendant, Mark Lawrence as third defendant, Shane Anderson as fourth defendant, Martha Breninger as fifth defendant, Judith Alexander as sixth defendant, Marcia Stewart as seventh defendant and Ava Freeland as eighth defendant.

1. The proceeding was commenced as a representative proceeding under O 18 of the Supreme Court (General Civil Procedure) Rules 2005 (‘Rules’). Paragraphs 3 and 4 of the indorsement of claim stated as follows:

3.The first defendant is sued as representative of all persons who have, since about 1 July 2013, without the consent of McDonald’s, entered into the McDonald’s Land, ascended the roof of the existing construction on the McDonald’s Land and have remained there from time to time since that time (the ‘Group A Representees’).

4.The seventh defendant is sued as representative of all persons who have, since about 1 July 2013 wrongfully interfered with McDonald’s use and enjoyment of the McDonald’s Land and the Next Door Land (together the ‘Land’) by impeding access to the Land to workers engaged to undertake the demolition of the existing construction on the McDonald’s Land or tasks associated with that demolition and to build the convenience restaurant or undertake tasks associated with that building (the ‘Group B Representees’).

1. The indorsement of claim sought the following orders: orders under r 18.03(1) of the Rules that the first and seventh defendants be appointed as representing the Group A Representees and the Group B Representees, respectively; an injunction against the defendants, the Group A Representees and the Group B Representees; damages; and costs.

1. The plaintiff filed a summons seeking representative orders under r 18.03(1) of the Rules and an interlocutory injunction. The plaintiff also filed extensive affidavit material in support of the summons, which described the activities of the defendants and the protest group.

1. The summons came before me for hearing in the Practice Court on 18 July 2013.  By that time only the first, second, third and seventh defendants had been served with the writ, the summons and the affidavits in support of the summons.  The first and third defendants were represented by junior counsel on a pro bono basis and the second and seventh defendants appeared in person.  The other defendants did not appear.

1. Given the speed with which the summons was heard, the defendants did not have an opportunity to file affidavits in response to the plaintiff’s affidavits. However, the defendants who appeared did not contend that the evidence before the Court did not warrant the granting of at least an interim injunction. Counsel for the first and third defendants questioned the appropriateness of a representative order under r 18.03(1) of the Rules, but did not make detailed submissions on this issue.

1. On 18 July 2013, I made an order (’18 July Order’), paras 1 and 2 of which were representative orders under r 18.03(1) of the Rules. Paragraphs 1 and 2 of the 18 July Order were in the following terms:

1.The First Defendant is appointed pursuant to Rule 18.03(1) of the Rules as representing all those persons who have, at any time between 1 and 17 July 2013, without the consent of the Plaintiff, entered into the land located at 1529, 1529A and 1531 Burwood Highway, Tecoma, being the land more particularly described in Certificate of Title Volume 11412 Folio 179 (‘McDonald's Land’) and ascended the roof of any building on the McDonald's Land (‘Group A Representees’).

2.The Seventh Defendant is appointed pursuant to Rule 18.03(1) of the Rules as representing all those people who have, at any time between 1 and 17 July 2013, wrongly interfered with McDonald’s use and enjoyment of the McDonald's Land or the land located at 1533 Burwood Highway, Tecoma more particularly described in Certificate of Title Volume 05466 Folio 146 being Lot 1 on Title Plan 753031A (‘Next Door Land’) by impeding access to the Land by workers and vehicles engaged to undertake work on the McDonald's Land associated with the demolition of the existing buildings and the construction of a convenience restaurant (‘Group B Representees’).

1. Paragraph 3 of the 18 July Order contained an interim injunction restraining the defendants, the Group A Representees and the Group B Representees — as those terms were defined in paras 1 and 2 of the 18 July Order — from trespassing on, or interfering with, the plaintiff’s use and enjoyment of the Land.  The injunction was expressed to operate until 4:00pm on 1 August 2013.

1. The interim injunction was extended by consent by orders made ‘on the papers’ on 29 July 2013 and 5 August 2013.  The latter order extended the interim injunction until 4:00pm on 27 August 2013. 

1. The plaintiff’s summons came before me again on 27 August 2013. By that time all the defendants were represented on a pro bono basis by solicitors and senior and junior counsel. The defendants did not contest the continuation of the injunction against them, but submitted that the representative orders should be vacated on the ground that the Court did not have jurisdiction to make them under O 18 of the Rules. The defendants also contended that this Court has jurisdiction to grant an injunction against unnamed individuals who are not defendants even if they are not the subject of a representative order.

1. The plaintiff submitted that the representative orders made on 18 July 2013 were within jurisdiction and sought to expand the classes of persons represented by including persons who had engaged in wrongful conduct between 18 July 2013 and 26 August 2013.  The plaintiff contended that the Court does not have jurisdiction to grant an injunction against unnamed individuals who are not defendants unless they are the subject of a representative order. 

1. The plaintiff and the first, seventh and eighth defendants filed affidavits in support of their respective contentions.

1. On 27 August 2013 I made the following ruling:

The defendants have not contested the continuation of the injunction insofar as it applies to them personally.  I am satisfied on the material that all the requirements for the continuation of the injunction are met and I will make an order extending it.  The defendants have sought some amendments to the terms of the injunction, including clarification of the use of social media and excision of the footpath from the scope of the order.  I am not satisfied that any of these amendments are either necessary or appropriate.

The real contest between the parties relates to the status of the proceeding as a representative proceeding, and in particular the status of the 1st and 7th defendants as representatives of separate classes of persons as defined in my order of 18 July 2013. The defendants have submitted that there was no jurisdiction under Order 18 of the Rules to make that part of the order of 18 July 2013, and that even if there were jurisdiction, the scope of that part of the order was too wide and otherwise inappropriate.

The defendants do not dispute that the Court has power to grant an injunction against persons who are not named defendants and who cannot be identified, but they contend that this cannot be effected under Order 18 in the circumstances of this case.

The plaintiff on the other hand has submitted not only that the representative order was appropriate, but that it should be extended by broadening the class of persons represented.  The plaintiff also contended that I lack the power to grant an injunction against unidentified persons who are not parties without first appointing one of the defendants as their representative.

The parties' submissions have raised complex legal issues which I cannot resolve prior to the expiration of the injunction at 4 p.m. today.  I need time to consider these issues properly in the light of the statement of claim to be filed by the plaintiff, and any further written submissions the parties wish to make.  Accordingly I will make orders which extend the current injunction until 4 p.m. on 20 September 2013 and provide for certain steps to be taken in the meantime.  I will also grant to the plaintiff a separate injunction against persons who engaged in conduct constituting trespass or nuisance between 18 July 2013 and 26 August 2013.

1. On the same day, I made an order (’27 August Order’) which extended the injunction until 4:00pm on 20 September 2013.  In the 27 August Order, I also granted injunctions against members of two groups, namely, the ‘Trespass Group’ and ‘Nuisance Group’.  The 27 August Order defined those groups as follows:

4.In this Order, the ‘Trespass Group’ means all those persons who have, at any time between 18 July 2013 and 26 August 2013, without the consent of the Plaintiff, entered into the McDonald’s Land and ascended the roof of any building on the McDonald's Land.

5.In this Order, ‘Nuisance Group’ means all those people who have, at any time between 18 July 2013 and 26 August 2013, wrongly interfered with the plaintiff’s use and enjoyment of the Land by impeding access to the Land by workers and vehicles engaged to undertake work on the McDonald's Land associated with the demolition of the existing buildings and the construction of a convenience restaurant.

1. On 6 September 2013, the plaintiff filed a statement of claim in which it continued to seek an injunction and costs, but not damages.  The plaintiff also sought additional representative orders against individuals it described as ‘Second Group A Representees’ and ‘Second Group B Representees.’  Paragraphs 3 and 4 of the statement of claim describe the represented groups as follows:

3.The first defendant is sued in her own right and as a representative of all persons who have:

(a)at any time between 1 July and 16 July 2013, without the consent of McDonald’s, entered into the McDonald’s Land and ascended the rood of any building on the McDonald’s Land (the ‘First Group A Representees’); and

(b)further or alternatively at any time between 1 July 2013 and 26 August 2013, without the consent of McDonald’s, entered into the McDonald’s Land and ascended the roof of any building on the McDonald’s Land (the ‘Second Group A Representees’).

4.The seventh defendant is sued in [her] own right and as a representative of all persons who have:

(a)at any time between 1 July 2013 and 16 July 2013, wrongly interfered with McDonald’s use and enjoyment of the McDonald’s Land and the Next Door Land (together the ‘Land’) by impeding access to the Land by workers and vehicles engaged to undertake work on the McDonald’s Land associated with the demolition of the existing buildings and the construction of a convenience restaurant (the ‘First Group B Representees’); and

(b)further or alternatively at any time between 1 July 2013 and 26 August 2013, wrongly interfered with McDonald’s use and enjoyment of the Land by impeding access to and egress from the Land by workers and vehicles engaged to undertake work on the McDonald’s Land associated with the demolition of the existing buildings and the construction of a convenience restaurant (the ‘Second Group B Representees’).

1. In this judgment, I deal with the submissions made by the parties on 27 August 2013 about the Court’s jurisdiction to make a representative order and to grant injunctions against unnamed individuals, and the appropriateness of the representative orders I made on 18 July 2013.[1]

   [1]On 27 August 2013, I granted leave to the parties to file additional affidavits and submissions.  The plaintiff filed a further affidavit and additional submissions on 13 September 2013.  The defendants did not file any further affidavits or submissions.

1. As will be seen, I have concluded that:

(a)        the interim injunction should become an interlocutory injunction;

(b)        the representative orders should continue; and

(c)        the time period that defines the represented groups should be extended.

Relevant statutory provisions

Orders 9 and 18 of the Rules

1. Order 18 of the Rules, titled ‘Representative Proceeding’, provides as follows:

18.01   Application

This Order applies where numerous persons have the same interest in any proceeding …

18.02   Proceeding by or against representative

A proceeding may be commenced, and, unless the Court otherwise orders, continued, by or against any one or more persons having the same interest as representing some or all of them.

18.03   Order for representation by defendant

(1)At any stage of a proceeding under Rule 18.02 against one or more persons having the same interest, the Court may appoint any one or more of the defendants or the persons as representing whom the defendants are sued to represent some or all of those persons in the proceeding.

(2)Where the Court appoints a person who is not a defendant, the Court shall make an order under Rule 9.06 adding that person as a defendant.

18.04   Effect of judgment

(1)A judgment given or order made in a proceeding to which this Order applies shall bind the parties and all persons as representing whom the parties sue or are sued, as the case may be.

(2)The judgment or order shall not be enforced against a person not a party except by leave of the Court.

(3)An application for leave shall be made by summons served personally on the person against whom enforcement of the judgment or order is sought.

1. The court rules of other Australian jurisdictions contain provisions that are similar to O 18 of the Rules.

1. Rule 9.06 of the Rules permits the addition of parties to a proceeding. It provides as follows:

9.06     Addition, removal, substitution of party

At any stage of a proceeding the Court may order that—

(a)any person who is not a proper or necessary party, whether or not that person was one originally, cease to be a party;

(b)any of the following persons be added as a party, namely—

(i)a person who ought to have been joined as a party or whose presence before the Court is necessary to ensure that all questions in the proceeding are effectually and completely determined and adjudicated upon; or

(ii)a person between whom and any party to the proceeding there may exist a question arising out of, or relating to, or connected with, any claim in the proceeding which it is just and convenient to determine as between that person and that party as well as between the parties to the proceeding;

(c)a person to whom paragraph (b) applies be substituted for one to whom paragraph (a) applies.

Civil Procedure Act 2010

1. Section 7(1) of the Civil Procedure Act 2010 (‘CP Act’) provides that the overarching purpose of the CP Act and the rules of court in relation to civil proceedings ‘is to facilitate the just, efficient, timely and cost-effective resolution of the real issues in dispute.’

1. Section 8(1) of the CP Act provides that a court ‘must seek to give effect to the overarching purpose in the exercise of any of its powers, or in the interpretation of those powers, whether those powers … are part of the Court’s inherent jurisdiction, implied jurisdiction or statutory jurisdiction; or … arise from or are derived from … any procedural rules or practices of the court.’

1. Section 9(1) of the CP Act provides that, in making any order in a civil proceeding, a court shall further the overarching purpose by having regard to a number of objects, including the efficient conduct of the business of the court, the efficient use of judicial resources, minimising delays, and the timely determination of the civil proceeding.

Relevant legal principles

Representative proceedings

Purpose and preconditions for a representative order

1. The history of representative actions, which have their origin in the practice of the Courts of Chancery, was traced by Toohey and Gaudron JJ, in a joint judgment, and by McHugh J, in Carnie v Esanda Finance Corporation Ltd.[2]

   [2](1995) 182 CLR 398, 415–19, 427–9 (‘Carnie’).  See also Campbells Cash and Carry Pty Ltd v Fostif Pty Ltd (2006) 229 CLR 386, 418–19 [42]–[46] (‘Fostif’).

1. The purpose of O 18 of the Rules is to facilitate the administration of justice by enabling a party to obtain a binding determination in a single action — rather than in separate actions — on behalf of or against persons with the same interest in the action.[3]

   [3]Carnie (1995) 182 CLR 398, 404. See also BT Australasia Pty Ltd v New South Wales (Unreported, Federal Court of Australia, Sackville J, 24 December 1997) 44 (‘BT Australasia’).

1. In Campbells Cash and Carry Pty Ltd v Fostif Pty Ltd,[4] Gummow, Hayne and Crennan JJ, in a joint judgment, stated that a central objective of the representative procedure was the avoidance of multiplicity of proceedings and the efficient determination, once and for all, of controversies in which parties have the same interest.  What the procedure was intended to achieve was ‘a single judicial determination of common issues in a way that binds those who were interested in those issues.’[5]  The question of whether the requirements of the relevant rule are satisfied must be considered having regard to what the originating process or pleadings said about parties, what issues were raised in the proceeding and what relief was sought in the proceeding.[6]

   [4](2006) 229 CLR 386.

   [5]Fostif (2006) 229 CLR 386, 422 [55].

   [6]Fostif (2006) 229 CLR 386, 422 [55].

1. In Stacey Brothers Plumbing Pty Ltd v Waterco Ltd,[7] Kenny J stated that an important purpose of the representative procedure, whether the proceeding is a plaintiff representative proceeding or a defendant representative proceeding, is to avoid numerous proceedings where one proceeding could determine a common question in which numerous persons have the same interest.[8]

   [7][2009] FCA 438 (5 May 2009) (‘Stacey Brothers’).

   [8][2009] FCA 438 (5 May 2009) [30].

1. Over time, the rules permitting representative actions have been construed more broadly.  The only prerequisites are that there are numerous persons and that they have the same interest in the proceeding.[9]  All other issues go to the Court’s discretion to refuse to make a representative order rather than to its jurisdiction to make such an order.[10]

   [9]Carnie (1995) 182 CLR 398, 404.

   [10]Carnie (1995) 182 CLR 398, 405.

1. In Carnie, Mason CJ, Deane and Dawson JJ, in a joint judgment, stated that the absence of a detailed legislative prescription for the making of a representative order neither enables a court to refuse to give effect to the provisions of the relevant rule, nor to narrow the scope of the operation of the rule.[11]  Once the existence of numerous parties and the requisite commonality of interest are ascertained, the rule is brought into operation subject only to the exercise of the court’s power to order otherwise.[12]  Toohey and Gaudron JJ emphasised that the simplicity of the rule is one of its strengths, allowing it to be treated as a ‘flexible rule of convenience in the administration of justice’.[13]

   [11]Carnie (1995) 182 CLR 398, 404.

   [12]Carnie (1995) 182 CLR 398, 405.

   [13]Carnie (1995) 182 CLR 398, 422.

1. In Geelong Wool Combing Ltd v Textile, Clothing and Footwear Union of Australia,[14] Finkelstein J stated that the circumstances in which a representative order may be made are not settled.[15]  The matters to be taken into account in deciding whether to make a plaintiff representative order will not necessarily be the same as those for a defendant representative order.[16] 

   [14](2003) 130 FCR 447 (‘Geelong Wool’).

   [15]Geelong Wool (2003) 130 FCR 447, 451 [11].

   [16]Stacey Brothers [2009] FCA 438 (5 May 2009) [30], [34].

1. In Amos Removals & Storage Pty Ltd v Small,[17] which predated Carnie, the plaintiffs sought a representative order and interlocutory injunctions against 19 named defendants, such that they would represent the members of the Sydney Shipping Section of the Federated Clerks Union of Australia (‘Sydney Section’), comprising 800 members.  The 19 defendants were all the members of the committee of management of the Sydney Section.  Hunt J identified three requirements for the making of a representative order.  First, the persons to be represented form an identifiable group or class.  Secondly, the person selected as a representative of the group must be in management of the group or class and have control of its funds.  Thirdly, those selected to be represented must have a common interest or a community of interest with all the other members.

   [17][1981] 2 NSWLR 525 (‘Amos’).

1. I will discuss the three requirements identified in Amos in more detail below.  As will be seen, the first two are not preconditions to the Court’s jurisdiction to make a representative order.[18]

   [18]In Stacey Brothers [2009] FCA 438 (5 May 2009), Kenny J stated that the first two requirements in Amos should be understood as factors that were strongly indicative of a community of interest: at [37].

Identifiable group or class is not a precondition

1. The first requirement for the making of a representative order identified in Amos was that the persons to be represented by the defendants must form an identifiable group or class.[19]  On this issue, Amos is inconsistent with Carnie.

   [19]Amos [1981] 2 NSWLR 525, 529.

1. Carnie concerned a plaintiff representative proceeding.  The appellants, as well as all of the persons they sought to represent, had entered into a standard form credit arrangement with the respondent.  Each of them had subsequently signed a standardised variation agreement.  The appellants claimed that the method by which the respondent had calculated repayments under the variation agreements was in breach of the provisions of the Credit Act 1984 (NSW).

1. Toohey and Gaudron JJ stated that the onus is on the party seeking the representative order to identify the represented group with sufficient particularity, not to identify every member of the class.[20]  In that case the class was not open ended because it was limited to those persons who had credit sale or loan contracts with the respondent, which had been varied in such a way as to be inconsistent with the applicable legislation.  It was a situation in which the respondent knew or had the means of knowing better than anyone else the members of the class.[21]

   [20]Carnie (1995) 182 CLR 398, 422.

   [21]Carnie (1995) 182 CLR 398, 422.

1. In Fostif, Gummow, Hayne and Crennan JJ stated that the represented class in Carnie comprised numerous persons with the same interest even though it was not possible to say at the time the proceeding was issued who the appellants represented.[22]

   [22]Fostif (2006) 229 CLR 386, 423 [59].

1. In Maritime Union of Australia v Patrick Stevedores Operations Pty Ltd,[23] the Victorian Court of Appeal stated that it may be possible, in a given case in which a large number of persons threaten and intend to infringe a plaintiff’s rights, for a representative order to be made as a preliminary to the grant of an injunction.[24]

   [23][1998] 4 VR 143 (‘Patrick Stevedores’).

   [24]Patrick Stevedores [1998] 4 VR 143, 160.

1. In Minister for Industrial Development v Taubenfeld,[25] the proposed order would have applied to ‘all protestors in occupation’ of a particular site without specifying any temporal limitation.  The size and composition of the protest group changed from time to time.  Mackenzie J held that, for the purposes of defining the class in that case, the relevant time was when the proceeding was commenced and that ‘there [was] no evidence suggesting that there [was] any means of identifying whether any particular person was a member of the group at that time.’[26]  His Honour said that the need to establish those who are said to have the same interest in the outcome of the proceeding is ‘fundamental.’[27]  His Honour concluded that the plaintiff had failed not merely to establish the identity of someone who was known to be at the site at the relevant time, but had failed ‘to establish, by any identifying characteristic, that a particular person was a member of the group.’[28]

   [25][2003] 2 Qd R 655 (‘Taubenfeld’).

   [26]Taubenfeld [2003] 2 Qd R 655, 660 [24]–[25].

   [27]Taubenfeld [2003] 2 Qd R 655, 660 [26].

   [28]Taubenfeld [2003] 2 Qd R 655, 660 [25].

1. In my opinion, the existence of an identifiable group or class is not a precondition to the making of a defendant representative order.  Carnie has authoritatively held that there are only two preconditions: that the representative and the represented persons have the same interest in the proceeding; and that the represented persons are ‘numerous’.  All other matters are relevant to the Court’s discretion rather than to its jurisdiction.

Management or control of the represented group is not a precondition

1. The second requirement for the making of a representative order identified in Amos was that those who are selected as representatives must be shown to be in the management of the group or class and to have control of its funds.[29]  While Hunt J stated that this requirement was laid down by the authorities, he did not identify any authorities.  I note that no such requirement was mentioned in Carnie.

   [29]Amos [1981] 2 NSWLR 525, 530.

1. In Stacey Brothers, Kenny J stated that ‘management’ of a group is neither a sufficient nor a necessary requirement, although there must be something that binds the group together so as to give rise to a commonality of interest and render a representative proceeding appropriate.[30]  Her Honour noted that respondent representative orders have been made where there has been no management and control, although there has been ‘some other factor’ linking the group.  Such a factor might be knowledge within the group of the group’s members, coordinated action, and common purpose.[31]

   [30]Stacey Brothers [2009] FCA 438 (5 May 2009) [37].

   [31]Stacey Brothers [2009] FCA 438 (5 May 2009) [37].

1. In my opinion, neither management nor control of the represented group is a precondition to the making of a defendant representative order.  However, they are relevant considerations in determining whether a person is a suitable representative.  The suitability of a representative is discussed at [77] to [82] below.

Precondition: Common interest

1. The third requirement for the making of a representative order identified in Amos was that those selected as representatives must have a common interest with all the other members or that all members of the class must have a community of interest.[32] 

   [32]Amos [1981] 2 NSWLR 525, 530.

1. Although rr 18.01, 18.02 and 18.03(1) of the Rules refer to the ‘same interest’, this is treated as synonymous with ‘common interest’ or ‘community of interest’. In Fostif, Gummow, Hayne and Crennan JJ stated that it is not to be supposed that referring to ‘the same interest’ was intended to give the rule a narrower operation than the former Chancery practice when that practice was described by reference to ‘common interest’.[33]

   [33]Fostif (2006) 229 CLR 386, 419 [45].

1. In Carnie, Mason CJ, Deane and Dawson JJ suggested that the term ‘same interest’ may extend to a significant common interest in the resolution of any question of law or fact arising in the relevant proceeding.[34]  McHugh J, with whom Brennan J agreed on this point, stated that ‘same interest’ means that the representative and the represented group must have a community of interest in the determination of any substantial question of law or fact that arises in the proceeding.[35]  Toohey and Gaudron JJ concluded that persons can have the same interest in a proceeding where there is a significant question common to them and they stand to be equally affected by any relief sought in the proceeding.[36]

   [34]Carnie (1995) 182 CLR 398, 404.

   [35]Carnie (1995) 182 CLR 398, 427, 408.

   [36]Carnie (1995) 182 CLR 398, 421.

1. Mason CJ, Deane and Dawson JJ held that persons can have the same interest even though they have separate causes of action in contract or tort.[37]  Toohey and Gaudron JJ, and McHugh J, stated that the fact that claims arise under separate contracts does not mean that the requirement for the same interest is defeated.[38]  Brennan J stated that having ‘the same interest’ in a proceeding does not equate to the same cause of action, or an entitlement to share in the same relief.[39]  His Honour also stated that if the court is not satisfied that the interests of the absent but represented persons are being properly advanced, the court should exclude the represented persons from the action.[40] 

   [37]Carnie (1995) 182 CLR 398, 404.

   [38]Carnie (1995) 182 CLR 398, 420–1, 430.

   [39]Carnie (1995) 182 CLR 398, 408.

   [40]Carnie (1995) 182 CLR 398, 408.

1. The High Court found that the appellants did share the same interest as the group they sought to represent, as each had an interest in testing their variation agreements against the Credit Act 1984 (NSW) to see if the respondent’s method of calculating the amount owing was correct. While the amounts payable in each case may have been different, the Court found that each person had the same interest in the proceeding.

1. In Fostif, which also concerned a plaintiff representative proceeding, a litigation funder had sought to bring several separate representative actions on behalf of a number of tobacco retailers.  Substantially identical summonses were issued in all of the proceedings.  The claim brought by Fostif Pty Ltd was treated as being typical of the claims.  Its summons referred to ‘represented retailers’, however no person was named as a ‘represented retailer’.  Rather, the summons provided for ‘opt-in’ procedures by which persons might later consent to becoming a plaintiff.

1. The High Court held by majority (Gummow, Hayne, Callinan, Heydon and Crennan JJ, Gleeson CJ and Kirby J dissenting) that at the time the proceeding was instituted there were not numerous persons having the same interest in the proceeding. 

1. Gummow, Hayne and Crennan JJ stated that it was not a bar to instituting a representative proceeding that some or even all of the persons to be represented knew nothing of the proceedings.  This may become relevant if an action is continued as a representative proceeding but would not preclude the institution of such a proceeding.[41]  Their Honours stated that the question of whether there is a class of persons sufficiently identified that together could be seen to be ‘numerous persons [having] the same interest’ in the proceeding is not to be asked or answered in the abstract.  It is a question that must be asked and answered with respect to the particular proceeding.[42]

   [41]Fostif (2006) 229 CLR 386, 421 [53].

   [42]Fostif (2006) 229 CLR 386, 421 [54].

1. Gummow, Hayne and Crennan JJ concluded that, at the time the proceeding was instituted, no claim was made on behalf of any person other than Fostif Pty Ltd.  Any consequences for the rights of other tobacco retailers depended on them choosing to opt in to the proceeding.  As such, deciding Fostif Pty Ltd’s claim would decide no issue between any of those other retailers and the defendant, unless or until those others chose to participate in the proceeding.[43]  No other person had an interest in those proceedings because no order made or judgment given in the proceedings would bind that other person.[44]  At best, the decision would affect other retailers in the sense that it would have precedential value.  Accordingly, there was no other person, let alone numerous other persons, whom Fostif Pty Ltd represented at the time the proceeding was commenced.[45]

   [43]Fostif (2006) 229 CLR 386, 422 [57].

   [44]Fostif (2006) 229 CLR 386, 422 [58].

   [45]Fostif (2006) 229 CLR 386, 422 [58].

1. Gummow, Hayne and Crennan JJ distinguished Carnie.  They held that, in that case, the appellants sought declarations which would benefit the represented persons.[46]  Also, in Carnie, it may have been difficult to list all of the persons whom the plaintiffs represented at the time of instituting the proceeding.  Further, some who met the criteria at that time may later have sought to be excluded from representation.  On that basis, it was not possible to say at the time the proceeding was issued who the plaintiffs represented, but it was nevertheless clear that there were numerous persons who were represented.[47] 

   [46]Fostif (2006) 229 CLR 386, 423 [58].

   [47]Fostif (2006) 229 CLR 386, 423 [59].

1. Callinan and Heydon JJ, in a joint judgment, agreed that the requirements for a representative action had not been satisfied and that Carnie was distinguishable.[48] 

   [48]Fostif (2006) 229 CLR 386, 470 [216].

1. Gleeson CJ dissented, considering it was not possible to distinguish Fostif from Carnie.[49]Kirby J also dissented, finding that the majority had interpreted the relevant rule too narrowly and inconsistently with Carnie.[50]His Honour stressed that in order to make a rule permitting representative actions effective to achieve its purpose, the rule is to be interpreted in a ‘beneficial and facultative way’.[51]  

   [49]Fostif (2006) 229 CLR 386, 409 [9].

   [50]Fostif (2006) 229 CLR 386, 459 [171]–[172].

   [51]Fostif (2006) 229 CLR 386, 453 [152].

1. In Stacey Brothers, Kenny J found that the interest which must be common to the represented group is an interest in the proceeding, to be judged ‘by reference to the effect of the matters at issue on the rights and obligations of the representing respondent and the represented persons.’[52]  It is permissible for some members of the group to have additional, separate interests, so long as all members share a common interest.  The key question in the context of a defendant representative proceeding is whether there can be a single determination of a common issue of fact or law in a way that binds those interested, to justify some relief the applicant seeks against them.[53]

   [52]Stacey Brothers [2009] FCA 438 (5 May 2009) [25].

   [53]Stacey Brothers [2009] FCA 438 (5 May 2009) [30].

1. In Geelong Wool, Finkelstein J refused an application for a defendant representative order because the nature of the cause of action pleaded and the relief sought (pecuniary penalties) required consideration of each defendant’s position individually.  The applicant brought the proceeding against the respondent union and a number of employees of the applicant who had been engaged in a picket, and sought an order that the union represent all other employees who had at any time been present at the picket line.  Finkelstein J stated:

To succeed in the action the applicant must establish that each respondent has engaged in unlawful (and therefore coercive) conduct with the intention of forcing the applicant to agree to a certified agreement in the form which the respondents seek.  …  This will involve an examination of the individual conduct of each respondent, as well as an enquiry as to the reason for that conduct.  Then, if the applicant shows that a contravention has occurred, there is the question of relief.  The amount of penalty to be imposed on each unsuccessful respondent will require separate consideration.[54]

[54]Geelong Wool (2003) 130 FCR 447, 452 [12].

1. His Honour held that the putative group did not have a community of interest and that the fact that each member of the group had an interest in successfully defending the proceeding was not a sufficient basis for making a representative order.[55]

   [55]Geelong Wool (2003) 130 FCR 447, 452 [12].

Precondition: Numerous persons

1. Rule 18.01 of the Rules requires that there be ‘numerous persons’ with the same interest in the proceeding. The rule does not suggest any minimum number of persons which would satisfy the requirement that they be ‘numerous’.

1. In Cauvin v Philip Morris Ltd,[56] the proceeding was brought against seven defendants in their own right and as representing 11 overseas companies.  Bell J stated that the mechanism provided by the relevant rule allowed for the representation of numerous plaintiffs or defendants so as to avoid the practical inconvenience that may flow from having numerous parties to the proceeding.[57]  Her Honour held that the total number of overseas companies that the plaintiff sought to have the defendants represent was not numerous and that there was no reason why they could not be conveniently joined to the proceeding if the plaintiff wished to do so.[58]

   [56][2003] NSWSC 631 (1 August 2003) (‘Cauvin’).

   [57]Cauvin [2003] NSWSC 631 (1 August 2003) [36].

   [58]Cauvin [2003] NSWSC 631 (1 August 2003) [36].

1. In my opinion, the question of how many persons must have the same interest in order to satisfy the ‘numerous persons’ requirement in O 18 of the Rules depends on the circumstances of each case. Where the identity of the persons to be represented is known, as was the case in Cauvin, the size of the class may need to be larger than when their identity is not known.  This is because in the former case, the administration of justice could be served by adding the persons as named parties.  On the other hand, in the latter case, a representative proceeding may be the only means by which relief could be obtained against members of the class.[59]

   [59]See [98]–[100] below.

Discretionary: Willingness to act as a representative or to be represented

1. In Commonwealth v Doyle,[60] Brooking J made an order naming the three defendants as representatives even though they objected to assuming that role and even though the third defendant was a minor and was sued by her litigation guardian.

   [60](Unreported, Supreme Court of Victoria, Brooking J, 4 October 1983).

1. In Taubenfeld, the named defendant representative objected to representing the group on the basis that she had no authority to represent the interests of the group and did not know what matters they would wish to raise in their defence.  Ms Taubenfeld submitted further that she could not adequately represent their diverse interests and objectives.[61]  Mackenzie J did not need to decide this issue, as his Honour found that the applicant had not identified with sufficient particularity the members of the group to be represented.[62] 

   [61]Taubenfeld [2003] 2 Qd R 655, 657 [10].

   [62]Taubenfeld [2003] 2 Qd R 655, 660 [24].

1. In my opinion, in the case of a defendant representative proceeding, the Court’s jurisdiction to make a representative order does not depend on the willingness of the named defendant representative to assume that role.  As it is likely that most defendants would prefer not to be appointed as a representative, to treat willingness to be appointed as a precondition to the exercise of the power would deprive it of much of its utility.

1. In BT Australasia Pty Ltd v New South Wales,[63] Sackville J suggested that before an application for a representative order is granted to a plaintiff, an appropriate effort should be made by the plaintiff to ascertain whether the persons to be represented consider it appropriate to be joined in the proceeding through a representative order, and whether they accept that their interests are the same as those of the representative and the other represented persons.[64]  A similar approach had been adopted by Young J when the High Court remitted the proceeding in Carnie to the Supreme Court of New South Wales.[65]

   [63](Unreported, Federal Court of Australia, Sackville J, 24 December 1997).

   [64]BT Australasia (Unreported, Federal Court of Australia, Sackville J, 24 December 1997) 47.

   [65]See Carnie v Esanda Finance Corporation Ltd (1996) 38 NSWLR 465, 473.

1. However, in Fostif, Gummow, Hayne and Crennan JJ accepted that the rule relating to representative proceedings did not require the separate identification of, and consent from, those who were said to constitute the numerous persons.[66] 

   [66]Fostif (2006) 229 CLR 386, 421 [54].

1. In Carnie, Mason CJ, Deane and Dawson JJ treated the consent of those represented as a matter going to the Court’s discretion rather than its jurisdiction.[67]  McHugh J noted that plaintiffs have been permitted to represent persons whether or not the represented persons consented or even knew of the proceeding.[68]

   [67]Carnie (1995) 182 CLR 398, 405.

   [68]Carnie (1995) 182 CLR 398, 429.

1. Once again, I am of the opinion that the unwillingness of persons to be represented cannot affect the Court’s jurisdiction to make a representative order.  In some cases — of which the present case is one — the identity of some of the represented persons will not be known to the plaintiff.

Effect of a claim for damages in tort

1. In Amos, Hunt J stated that in an action for tort, the application of the rules for representative orders requires that every person to be represented and against whom judgment may be entered must be under ‘precisely the same liability in respect of the claim for which the action is brought.’[69]  However, in Carnie, Mason CJ, Deane and Dawson JJ stated that it has been recognised that persons ‘having separate causes of action in contract or tort may have “the same interest” in proceedings to enforce those causes of action.’[70] 

   [69]Amos [1981] 2 NSWLR 525, 529.

   [70]Carnie (1995) 182 CLR 398, 404.

1. In my opinion, it is easier to establish a commonality of interest in an action in tort against a represented group where the remedy is confined to injunctive relief.

Identity of defences is not a precondition

1. In Taubenfeld, Mackenzie J observed in the context of a defendant representative proceeding that even where there is some form of structure in an unincorporated body, the difficulty in establishing the necessary identity of interest of all persons against whom an order is sought and of eliminating the possibility of different defences is apparent.[71]

   [71]Taubenfeld [2003] 2 Qd R 655, 659 [21].

1. In Stacey Brothers, Kenny J stated that in the context of a defendant representative proceeding, the nature of defences may be especially significant.[72]  Her Honour stated that a proceeding will generally not disclose persons in the same interest where defendants are entitled to raise different defences, although this is not an absolute rule.  Whether the fact that different defences may be taken will defeat a finding of commonality of interest depends on the nature of the case, the centrality of any common questions of law and fact, and, having regard to the proceeding as a whole, the reality, importance and likely scope of the different defences.[73]

   [72]Stacey Brothers [2009] FCA 438 (5 May 2009) [39].

   [73]Stacey Brothers [2009] FCA 438 (5 May 2009) [39].

1. In my opinion, the importance of identity of defences is diminished where a plaintiff only seeks an injunction to prevent trespass and nuisance relating to his or her land and does not seek damages.

Discretionary: Suitability of representative

1. The suitability of the person selected to be the representative is a matter relevant to the Court’s exercise of its discretion whether to grant a representative order rather than to the Court’s jurisdiction to do so.

1. In Commonwealth v Doyle, the plaintiff owned a house which was occupied by a group of squatters.  The squatters had posted a sign outside the property indicating that they were associated with the ‘Squatters Union’.  The plaintiff sought a representative order against three persons.  The first, Ms Doyle, had not slept at the house, and claimed to be no more than an innocent bystander who had acted as a conduit between the plaintiff and the group of squatters.  Brooking J granted the application to appoint Ms Doyle as a representative of the group of squatters.  The evidence showed that she had some association with the Squatters Union, and worked at an organisation whose telephone number was given on the sign.

1. Brooking J considered it significant that Ms Doyle was at the property at the time when officers of the plaintiff arrived, and told them that she was associated with the Squatters Union and that she could be contacted at the number included on the sign.  An agreement for the supply of electricity to the property was signed by Ms Doyle, as was an undertaking to meet charges for that electricity.  Brooking J found that on the evidence, Ms Doyle had ‘shown herself to be acting in concert’ with those who had occupied the plaintiff’s property, and was a prominent party to an agreement to commit the tort of trespass.[74]  While Ms Doyle had trespassed on the property, this fact was not critical.

   [74]Commonwealth v Doyle (Unreported, Supreme Court of Victoria, Brooking J, 4 October 1983) 8.

1. The second and third representatives had not done anything in particular to distinguish themselves from the group of trespassers as a whole.  However, Brooking J was satisfied that the evidence of organised trespass was overwhelming.  The role of the second and third representatives as trespassers was established by evidence including television interviews.  In his Honour’s opinion, an agreement to trespass was on foot, and notwithstanding that they had since ceased to live at the property, the second and third representatives were still parties to that agreement.[75]  His Honour found that they were suitable representatives even though the third representative was a minor and was sued by her litigation guardian.[76]

   [75]Commonwealth v Doyle (Unreported, Supreme Court of Victoria, Brooking J, 4 October 1983) 8–9.

   [76]Commonwealth v Doyle (Unreported, Supreme Court of Victoria, Brooking J, 4 October 1983) 4, 10.

1. The representative order that was made in Commonwealth v Doyle was in the following terms:

I order that the defendants do for the purposes of this action represent all persons who were on 4^th September, 1983 or are now or have at any time since 4^th September, 1983 [been] occupiers of the house and land known as Bona Vista and situated at 59 Kensington Road South Yarra, or any part of the said house and land.[77]

[77]Commonwealth v Doyle (Unreported, Supreme Court of Victoria, Brooking J, 4 October 1983) 12.

1. The proceeding ultimately reached the High Court on appeal and by way of judicial review.  In the light of the manner in which the matter proceeded to the High Court, it was not necessary for that Court to consider the representative order.[78]

   [78]Doyle v Commonwealth (1985) 156 CLR 510, 515.

Timing of common interest and whether the class can be amended

1. In Taubenfeld, Mackenzie J held that the class which was said to have the same interest in the subject matter of the proceeding crystallised as those persons who were occupiers of the relevant land at the time the proceeding was commenced.[79]  His Honour stated that only persons who were protesters in occupation of the land at that time would be bound by the Court’s order if the proceeding were a representative proceeding.  Other persons who subsequently entered the land may have been trespassers, but they would not be subject to any order made in the proceeding.[80]

   [79]Taubenfeld [2003] 2 Qd R 655, 660 [24].

   [80]Taubenfeld [2003] 2 Qd R 655, 660 [27].

1. This position was also adopted in Stacey Brothers, where Kenny J held that the requirement that the represented parties have the ‘same interest’ in the proceeding must be satisfied at the time the proceeding is commenced.[81]

   [81]Stacey Brothers [2009] FCA 438 (5 May 2009) [25].

1. In Fostif, Callinan and Heydon JJ emphasised that the critical time to assess whether there are numerous persons having the same interest in a proceeding is the time at which the proceeding is commenced and that it is not enough that it might exist at some future time.[82]

   [82]Fostif (2006) 229 CLR 386, 470 [215]. See also 421 [51] per Gummow, Hayne and Crennan JJ.

1. In SZ v Minister for Immigration and Multicultural Affairs,[83] the applicant in a plaintiff representative proceeding applied for an order that he or she be at liberty to expand the class of represented persons by ‘amending, from time to time, the schedule of represented persons … and … filing the amended schedule under affidavit’.[84]  Lehane J refused the application, holding that O 6 r 13 of the Federal Court Rules did not allow an amendment that would expand the group of persons on whose behalf the applicant had commenced a proceeding.  His Honour stated:

The class of persons having the same interest in the proceeding includes, no doubt, a considerable number of persons who are not on either of the present lists of represented persons.  To commence a proceeding as representing specified persons who, in common with numerous others, have the same interest in the proceeding is not, unless one strains the language well beyond its ordinary meaning, to commence it as representing all those who have that same interest or ‘all except one or more of them’.  That both supports my view that FCR O 6 r 13 does not contemplate the expansion of a class of represented persons and also suggests that, if an order having that effect were possible, an order which simply added specified persons to the class could not be made.  It is not in any event appropriate, in my view, to make an order the effect of which would be that the class might be added to automatically from time to time simply by the filing of a list together with an affidavit identifying the additional parties as persons having the same interest in the proceeding as the existing represented parties.[85]

[83](2000) 172 ALR 172 (‘SZ’).

[84]See SZ (2000) 172 ALR 172, 175 [9].

[85]SZ (2000) 172 ALR 172, 179 [20].

1. In Stacey Brothers, Kenny J stated that Lehane J’s reasoning was also applicable to a defendant representative proceeding and that there was no reason to doubt his Honour’s reasoning.[86]  Her Honour did not set out Lehane J’s reasoning and did not explain why she agreed with it.

   [86][2009] FCA 438 (5 May 2009) [52].

1. In my opinion, the requirement that the represented persons have a common interest as at the time the proceeding is commenced does not mean that the represented class must remain fixed for the duration of the proceeding. 

1. A proceeding contains claims based on events that have occurred as at the date the proceeding is commenced.  That is because the cause of action upon which the proceeding relies must have accrued by that date.  That does not mean, however, that the claim must remain fixed as at that date.  By an amendment to the plaintiff’s pleading, the claim can extend to cover events occurring after the proceeding was commenced. 

1. Likewise, although a proceeding alleges causes of action against the defendants named in the proceeding when it was commenced, that does not mean that the parties are fixed for the duration of the proceeding. Under r 9.06 of the Rules, the Court may add a defendant in the circumstances set out in that rule. A defendant may be added based on facts already pleaded as at the commencement of the proceeding or on facts added to a proceeding by an amendment to the statement of claim.

1. A representative proceeding is a mechanism by which unnamed persons can be made parties to the proceeding and be bound by orders made in that proceeding.  If there is no commonality of interest between the named and unnamed defendants as at the date the proceeding is commenced, it cannot continue as a representative proceeding. 

1. However, if this precondition is met and a representative order is made under r 18.03(1) of the Rules, the individuals who are the subject of the representative order need not remain constant. Provided the common interest remains, the period of time over which it can apply may be extended by an amendment to the pleadings and by a corresponding amendment to the representative order.

1. Accordingly, where additional unnamed individuals engage in the conduct that defines the represented group after the commencement of the proceeding, the plaintiff can apply for leave to amend the statement of claim to include the post-commencement conduct and may also apply for an order amending the representative order to include unnamed individuals engaging in that post-commencement conduct.

1. There is nothing in O 18 of the Rules that is inconsistent with my conclusion at [93] above. In Carnie, Mason CJ, Deane and Dawson JJ appeared to accept that it is possible for alterations to be made to the description of the represented group.[87]  Toohey and Gaudron JJ also held that the Court ‘retains the power to reshape the proceedings at a later stage’.[88]

   [87]Carnie (1995) 182 CLR 398, 405.

   [88]Carnie (1995) 182 CLR 398, 422.

1. With respect, I disagree with Lehane J’s reasoning in SZ.  That reasoning is unduly narrow and was influenced by the fact that the applicant in that case sought an order that would have enabled him or her to unilaterally expand the represented class on an ongoing basis. 

1. In deciding this issue, I have been very mindful of my obligation under s 8(1) of the CP Act to interpret this Court’s powers under the Rules so as it give effect to the overarching purpose. My conclusion at [93] above gives effect to that purpose. This is because my conclusion enables the Court to provide effective relief to a plaintiff against the coordinated activities of a protest group — the identity of some of whose members is not known — in respect of conduct at the commencement of the proceeding and in the course of the proceeding.

1. If O 18 of the Rules were to be read as permitting only a representative order which is fixed in time as at the commencement of the proceeding, a plaintiff faced with waves of protest activity by new unnamed protesters acting in concert with previous protesters would have to commence separate representative proceedings every time the new unnamed protesters engaged in the conduct that is the subject of the proceeding.[89]  Such an interpretation would result in a multiplicity of proceedings, increased delays and higher costs, all of which would run counter to the overarching purpose.

   [89]It was suggested in argument that new proceedings would not be required because the plaintiff could seek leave to add a new defendant and apply for an order appointing him or her as the representative of the new unnamed protesters. Under r 9.11(3)(a) of the Rules, the proceeding against the new defendant would commence upon the amendment of the filed originating process. However, in the situation I have described, the plaintiff would not know the identity of any of the new protesters and thus would not be able to name any new defendant.

Jurisdiction to grant an injunction against an unnamed person

1. The question of whether the Court can grant an injunction against an unnamed person in the absence of a representative order arose in Patrick Stevedores.[90]  In that case, the primary judge granted an interlocutory injunction against the named defendants and four classes of person ‘none of whom was a defendant, or named as a respondent to an application, or given any notice of the application for an injunction, or made the subject of a representative order.’[91]  The Court of Appeal held that the injunction was so wide that it was ‘directed to the world at large’.  As an injunction cannot be directed to the world at large but must be directed to an identified person or persons, the injunction was, to that extent, beyond power.[92] 

   [90]Patrick Stevedores [1998] 4 VR 143.

   [91]Patrick Stevedores [1998] 4 VR 143, 157.

   [92]Patrick Stevedores [1998] 4 VR 143, 159, 162.

1. The Court of Appeal discussed the general rule that the Court has no jurisdiction to grant an injunction against a person who has not been made, and who is not required by order or undertaking to be made, a party to a proceeding brought by the plaintiff.[93]  The Court explained the basis of some cases which appeared to be inconsistent with the general rule.  As I have already mentioned, the Court went on to state that it may be possible, in a given case in which a large number of persons threaten and intend to infringe a plaintiff’s rights, for a representative order to be made as a preliminary to the grant of an injunction.[94] 

   [93]Patrick Stevedores [1998] 4 VR 143, 158.

   [94]Patrick Stevedores [1998] 4 VR 143, 160.

1. In my opinion, Patrick Stevedores is not inconsistent with the proposition that, where an identifiable person whose name is unknown is committing a tort such as trespass or nuisance, the Court has jurisdiction to grant an injunction against him or her if a representative proceeding is either unavailable or impracticable and if, due to urgent circumstances or otherwise, granting the injunction is necessary to uphold the rule of law.  Such an injunction would be directed to an identifiable but unnamed person rather than to the world at large.

Whether the preconditions for a representative order are satisfied

Attributes of the protest group in the present case

1. In order to determine whether the preconditions for the making of a representative order have been satisfied in the present case, it is necessary to summarise the plaintiff’s evidence — which has not been contested by the defendants — about the attributes of the protest group and its activities.

1. A well organised protest group opposed to the construction of a McDonald’s restaurant at Tecoma has been in existence since well before the commencement of this proceeding.  The group may not have a fixed or constant membership, but a large number of individuals — including the defendants — regularly participate in its protest activities.  The group has a spokesperson, Mr Garry Muratore.  The plaintiff’s counsel informed me on 27 August 2013 that Mr Muratore has not been named as a defendant because of the absence of evidence that he has committed any tort in relation to the Land.

1. The activities of the protest group are coordinated and strategic.  Members of the group, including the defendants, have acted in concert in undertaking various activities aimed at preventing the plaintiff from building the McDonald’s restaurant.  Some of the activities of the group have been aggressive and have deliberately violated the plaintiff’s legal rights in relation to the Land.

1. Members of the protest group communicate among themselves through social media (including Twitter, Facebook and internet forums), email, telephone calls, SMS messaging, group gatherings, letter writing, posters, brochures, pennant flags, banners, t-shirts and other campaign material.  They have used slogans such as ‘Democracy? 9 out of 10 Say No to McDonald’s in Tecoma’, ‘We Said NO’, ‘Burger Off’, ‘Save Tecoma’, ‘No Maccas’, ‘No Maccas in the Hills’, ‘McDonald’s Not Wanted’ and ‘McDonald’s vs. Tecoma’.  A CD titled ‘Resistance is Fertile — No McDonald’s in Tecoma’ containing 16 songs has been released. 

1. Members of the protest group use multiple Twitter accounts and ‘hashtags’, including ‘#McOccupation’, ‘@save_tecoma’ and ‘@fakeronmcdonald’.

1. Members of the protest group use multiple Facebook pages, including ‘No Maccas in the Hills’, ‘NO McDonald’s in the Dandenong Ranges’, ‘Get Mactivated’, ‘Boycottmcdonaldstecoma’ and ‘No McDonald’s in Tecoma’. 

1. Members of the protest group use multiple internet forums, including the websites ‘ and ‘  The website has published background information on the proposed McDonald’s restaurant, the overall aims of the protest group and regular posts on what is occurring on the Land.

1. In May 2013, the protest group developed an SMS contact list as a means of informing persons on the list when people were needed to attend the Land to engage in protest activity.

1. One of the email addresses used by the protest group is ‘[email protected]’. 

1. The protest group has communicated its views about the McDonald’s restaurant to the public through the mechanisms described at [104] above. The group has also issued media releases from time to time. Members of the group have appeared on television and radio programmes to discuss the group’s aims and activities and have been quoted in newspaper articles about those aims and activities.

1. Through the above mechanisms, the protest group is able to organise protest activity at the McDonald’s Land at short notice.  It is able to quickly mobilise hundreds of people to its cause.

1. There is no doubt that all members of the protest group have a common objective, namely, to prevent the plaintiff from building the McDonald’s restaurant.

1. After I granted the injunction on 18 July 2013, with one possible exception, the defendants have tended to avoid engaging in conduct which could be construed as trespass or nuisance in breach of the injunction.  Mr Muratore has emphasised in media interviews that, since the injunction was granted, the defendants have not been involved in blocking vehicle access to the Land.  However, new protesters, who prior to 18 July 2013 had not committed acts of trespass or nuisance (and who were not Group A Representees or Group B Representees), committed such acts.

1. For example, an unidentified woman — who appears not to have been at the Land previously and who called herself ‘Roof Girl’ — ascended the roof of a building on the McDonald’s Land on 28 July 2013 and stayed there until 31 July 2013.  Her photograph appeared in some newspaper reports and her image was broadcast on Channel 10 News on 29 July 2013.  Another unidentified woman ascended the roof on 30 July 2013 and did not leave the roof until she was removed by the police using a ‘cherry picker’ on 6 August 2013.  She had not been on the roof prior to 18 July 2013.

1. Similar examples exist of new unidentified protesters seeking to obstruct vehicles and workers entering the Land after 18 July 2013.  On 30 July 2013, around 100 protesters blocked access to the Land.  In an article published in the Herald Sun on that day, Mr Muratore was quoted as saying that there was a 100-strong blockade and that the protesters would have to be physically removed in order to gain access to the Land.  He said that the protest group would continue to protest to halt the construction of the McDonald’s restaurant.  In an interview on the Channel Seven ‘Sunrise’ programme, Mr Muratore stated that protesters were blockading the Land, that ‘We’ll make sure that no trucks get in’, that ‘We’ll go as far as it takes’ and that ‘They’ll have to pick us up and move us’.

1. In an affidavit sworn on 13 September 2013, one of the plaintiff’s solicitors set out details of actions taken by protesters on 28 July 2013, 3 September 2013 and 11 September 2013 to prevent vehicles from entering the Land.  The affidavit describes the appearance of some of the protesters and exhibits photographs of some of them.  In the case of three of the protesters, the affidavit indicates what their names might be and the basis of each tentative identification.

1. It can be safely inferred that the deployment of new protesters in the manner  described above has been part of a deliberate strategy by the leaders of the protest group and that the defendants are aware of the strategy.  The obvious aim is to continue the conduct prohibited by the injunction through the medium of persons other than those bound by the injunction.

Preconditions for a representative order satisfied

1. The following common questions of fact and law arose at the commencement of this proceeding in relation to the defendants and the two classes of represented persons: whether the defendants and the represented persons committed the torts alleged against them; whether an injunction should be granted to restrain their conduct; and the scope of any such injunction.  The determination of these questions did not depend on the individual motives or subjective intentions of the defendants and the represented persons.  As the plaintiff has not pursued a claim in damages, the Court will not need to examine the nature of any financial loss suffered by the plaintiff as a result of any individual’s conduct.

1. Accordingly, the persons who engaged in the impugned conduct at the time this proceeding was commenced, and who fall within the classes to be represented by the first and seventh defendants, have the same interest in the proceeding as the first and seventh defendants.  That interest was to prevent the making of an injunction and, if an injunction were to be granted, to limit its ambit and thus maximise the scope of protest action that could be lawfully pursued.  Any injunction would potentially affect the defendants and the represented persons equally.

1. The persons to be represented as at the commencement of this proceeding were numerous for the purposes of O 18 of the Rules. The defendants have not submitted otherwise.

1. In the light of the discussion at [98] to [100] above on the limits to the Court’s jurisdiction to grant an injunction against unnamed persons in the absence of a representative order, the discretionary considerations have not persuaded me — either individually or collectively — that a representative order should not be made.  On the contrary, as a matter of discretion, this is precisely the type of situation that calls for the exercise of the discretion in favour of making such an order.  That is because, in the absence of a representative order, the plaintiff would be left without a remedy against unnamed protestors who are flagrantly interfering with its legal rights as part of an ongoing coordinated campaign.  The Court should not fetter its capacity to make orders that further the administration of justice and uphold the rule of law.

1. Having concluded that a representative order should be made in relation to persons having a common interest with the defendants as at the commencement of the proceeding, the next question is whether the represented classes should be expanded to include additional persons who shared the common interest in this proceeding in the period covered by the statement of claim, namely, from 1 July 2013 until 26 August 2013.  For the reasons set out at [88] to [97] and [102] to [117] above, I am firmly of the opinion that the additional persons should be included.

1. I will now consider the suitability of the first and seventh defendants to be appointed as representatives of the two classes of represented persons.

Suitability of the first defendant as representative

1. Set out below is a summary of the evidence about the first defendant’s involvement with the protest group. 

1. On 3 and 12 July 2013, the first defendant sat on the roof of a building on the McDonald’s Land without the plaintiff’s consent and refused to come down when directed by the plaintiff to do so.

1. On 3 July 2013, after the first defendant climbed off the roof, she was restrained from regaining access to the roof.  There was a ‘small tussle’ between the first defendant and two security guards.  One of the security guards has alleged that she was assaulted by the first defendant, whereas the first defendant has alleged that she was assaulted by the security guards.

1. A posting on the website for 3 July 2013 stated that it was the first defendant’s birthday and that ‘she would love others to join her on her roof top protest … as a special present.’ 

1. A posting on the website for 4 July 2013 referred to the incident described at [126] above.

1. The first defendant has made a number of posts on the Facebook page ‘No Maccas in the Hills’. In one post, she said ‘[i]f anybody has any spare carpet or rugs for the rooftop please bring it on down (to go up) cheers’. In another post, she thanked those who had expressed concern about an incident (possibly the incident described at [126] above) and stated: ‘All is well — we remain committed to our non-violent protest with our strong & brilliant community … onward & upward!!! until tomorrow, over & out.’

1. Security guards at the McDonald’s Land have taken various photographs of the first defendant in and around the McDonald’s Land, including photographs of her on the roof of a building on the McDonald’s Land.

1. A number of newspaper articles refer to the first defendant’s involvement in protest activities and contain photographs of her.  Some of the photographs show her on the roofs of buildings on the McDonald’s Land.  An online article published by The Age on 1 July 2013 described the first defendant as a ‘protest stalwart’.  Her photograph was published in an article in The Age on 5 July 2013 and in an online article in the same newspaper on 8 July 2013 and she was quoted in both articles in relation to the incident described at [126] above.

1. On 4 July 2013, the first defendant was interviewed on ABC Radio about the incident described at [126] above. She said that she would continue to protest in the campaign and suggested that the campaign would be fortified as a result of the incident.

1. In her affidavit, the first defendant acknowledged that she has been involved in the protests against the McDonald’s restaurant and that she has been present at protest gatherings.  She did not deny that she spent some time on the roof of a building on the McDonald’s Land.  She acknowledged that she occasionally used social media but denied that she did so to induce anyone to interfere with the plaintiff’s enjoyment of the McDonald’s Land.

1. In relation to her appointment as representative of the Group A Representees, the first defendant has deposed as follows:

7.… I do not know who the people referred to as ‘Group A representees’ are, whether I know any of them or how to contact them.  I do not want to represent them.

8.I have not attempted to control or regulate the behaviour of the Group A representees.

9.I do not have the ability to control or regulate the behaviour of the Group A representees.

10.I do not know the reasons or purposes for which the Group A representees engaged in any conduct or behaviour at the site.

11.I have not organized, co-ordinated or incited conduct that any of the Group A representees may or may not have carried out at the site.

12.I am not aware of the Defences that each of the Group A representees would make in response to the behaviour that is alleged against them.

1. Having regard to the principles summarised at [28] to [97] above and the first defendant’s involvement with the protest group, as summarised at [125] to [134] above, I have no doubt that she has a common interest in this proceeding with other members of the protest group who have engaged in the conduct described in para 1 of the 18 July Order[95] between 1 July 2013 and 26 August 2013 and that she has acted in concert with at least some of them.  I also have no doubt that the first defendant is suitable to be appointed as a representative of those persons.  Notwithstanding that the first defendant does not wish to assume the role of representative and may not know all those persons, the evidence establishes that she:

   [95]See [11] above.

(a)       is a member of the protest group;

(b)      regularly participates in the activities of the protest group; and

(c)       has access to, and utilises, the communication mechanisms used by the protest group to coordinate its activities.

1. In my opinion, O 18 of the Rules does not impose any obligations on a representative in relation to the represented persons. It assumes that, as the representative and the represented persons have the same interest in the proceeding, the representative will always act to protect his or her interests in the same manner as the interests of the represented persons. The Court, however, can impose specific obligations on a representative on a case by case basis where the Court believes that particular steps should be taken to protect the interests of the represented persons.

1. While it is not necessary for me to decide this issue at this stage, I am satisfied that the first defendant is capable of undertaking steps that are calculated to bring to the attention of represented persons orders made by the Court and other important developments in this proceeding. 

Suitability of the seventh defendant as representative

1. Set out below is a summary of the evidence about the seventh defendant’s involvement with the protest group. 

1. On 4 July 2013, the seventh defendant jumped on the back of a truck as it was reversing onto the Land to deliver Portaloos and she refused to leave.  The truck remained stationary until the seventh defendant was removed by police.

1. Postings on the website for 4 and 6 July 2013 referred to the incident described at [139] above.

1. In her affidavit, the seventh defendant acknowledged that she has been involved in the protests against the McDonald’s restaurant and that she has been present at protest gatherings.  She stated that she does not own a mobile telephone, laptop or computer and does not use social media.  However, she acknowledged that she engages in other activities such as ‘letter writing, attending public meetings and rallies, promoting events with posters in [her] shop window and selling campaign material.’

1. In relation to her appointment as representative of the Group B Representees, the seventh defendant has deposed as follows:

6.… I do not know who the people referred to as the ‘Group B representees’ are, whether I know them or how to contact them.  I do not want to represent them.

7.I have not attempted to control or regulate the behaviour of the Group B representees.

8.I do not have the ability to control or regulate the behaviour of the Group B representees.

9.I have not organized, co-ordinated or incited conduct that any of the Group B representees may or may not have carried out at the site.

10.I am not aware of the Defences that each of the Group B representees would make in response to the behaviour that is alleged against them.

1. In my opinion, it can be safely inferred that the seventh defendant knows other members of the protest group, including each of the other defendants and the group’s spokesperson Mr Muratore.

1. Having regard to the principles summarised at [28] to [97] above and the seventh defendant’s involvement with the protest group, as summarised at [139] to [142] above, I am satisfied that she has a common interest in this proceeding with other members of the protest group who have engaged in the conduct described in para 2 of the 18 July Order[96] between 1 July 2013 and 26 August 2013 and that she has acted in concert with at least some of them.  I am also satisfied that the seventh defendant is suitable to be appointed as a representative of those persons.  Notwithstanding that the seventh defendant does not wish to assume the role of representative and may not know all those persons, the evidence establishes that she:

   [96]See [11] above.

(a)       is a member of the protest group;

(b)      participates in the activities of the protest group;

(c)       has access to, and utilises, non-electronic communication mechanisms used by the protest group to coordinate its activities; and

(d)      has access to individuals who utilise the electronic communication mechanisms used by the protest group to coordinate its activities.

1. While I need not decide at this stage whether the seventh defendant is capable of undertaking steps that are calculated to bring to the attention of represented individuals orders made by the Court and other important developments in this proceeding, I am satisfied that she has the capacity to do so.

1. Although the seventh defendant’s involvement in the protest group is less extensive than the first defendant’s involvement, she is no less active than the second and third defendants were in Commonwealth v Doyle.[97]

Order to give effect to this judgment

[97]See [80] above.

1. As the interim injunction expires at 4:00pm today, it is necessary for me to extend the injunction.  The defendants have not suggested that there is any basis for not converting the interim injunction into an interlocutory injunction.  Accordingly, I will grant an interlocutory injunction.  It is also necessary for me to extend the period covered by the representative orders as set out in this judgment and to give directions for the future conduct of the proceeding.

1. Subject to any further submissions from the parties, I will make an order to the effect of the draft order set out in the Appendix.

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APPENDIX
DRAFT ORDER

1. The First Defendant is appointed pursuant to Rule 18.03(1) of the Rules as representing all those persons who have, at any time between 1 July 2013 and 26 August 2013, without the consent of the Plaintiff, entered into the land located at 1529, 1529A and 1531 Burwood Highway, Tecoma, being the land more particularly described in Certificate of Title Volume 11412 Folio 179 (‘McDonald's Land’) and ascended the roof of any building on the McDonald's Land (‘Group A Representees’).

1. The Seventh Defendant is appointed pursuant to Rule 18.03(1) of the Rules as representing all those people who have, at any time between 1 July 2013 and 26 August 2013, wrongly interfered with the Plaintiff’s use and enjoyment of the McDonald's Land or the land located at 1533 Burwood Highway, Tecoma more particularly described in Certificate of Title Volume 05466 Folio 146 being Lot 1 on Title Plan 753031A (‘Next Door Land’) by impeding access to the Land[98] by workers and vehicles engaged to undertake work on the McDonald's Land associated with the demolition of the existing buildings and the construction of a convenience restaurant (‘Group B Representees’).

   [98]The order will define ‘Land’ to mean the McDonald’s Land and the Next Door Land.

1. Until the hearing and determination of this proceeding or further order, the Defendants, the Group A Representees and the Group B Representees and each of them must not:

(a)       enter into or remain on any part of:

(i)       the Land, which is marked in red and blue on the attached plan; and

(ii)      the area of the footpath in front of the Land and for a distance of 3.4 metres to the west of the Land and 3.75 metres to the south of the Land along the Burwood Highway, which is marked in green on the attached plan; and

(iii)     the land marked in hatched blue on the attached plan, being easements that allow the Plaintiff access to the Land, which extend 3.4 metres to the west of the Land and 8.45 metres to the south from the northwest corner of the Land;

(b)      enter into or remain on any part of the area of the Burwood Highway in front of and to the west of the Land that is marked in purple on the attached plan for the purpose of doing any of the things that are prohibited by any one of sub-paragraphs (a) and (c) to (j) of this order;

(c)       in any way physically interfere with the Land;

(d)      in any way physically interfere with the plaintiff’s right to possession of the Land;

(e)       in any way abuse, threaten, harass, intimidate or physically harm any person:

(i)       entering, leaving, or about to enter or leave, or who has entered or left the Land; or

(ii)      who is at the Land;

(f)       throw any article into the Land or attempt to do so;

(g)      damage or interfere with any fence, gate, lock or posts of the Land, or attempt to do so;

(h)      damage or interfere with any vehicle or the contents or load of any vehicle, entering or leaving or about to enter or leave, or which has entered or left the Land or attempt to so damage or interfere;

(i)       in any way prevent, hinder or interfere with free access to or egress from the Land by any person;

(j)        do anything for the purpose of causing, inducing, procuring or advising any person to do any of the things that are prohibited by any one of sub-paragraphs (a) to (i) of this order.

1. The Defendants file and serve any defence to the statement of claim by 4:00pm 7 October 2013.

1. The Plaintiff file and serve any reply to the defence by 4:00pm on 21 October 2013.

1. The proceeding be referred to a mediator to be agreed between the parties or in default of agreement to be appointed by the Court, such mediation to take place before 12 November 2013.

1. The solicitor for the Plaintiff must, after consultation with the solicitor for the Defendants, deliver to the mediator a copy of this order, all pleadings (including requests for and further particulars) and a copy of any other relevant information, and take all steps necessary to ensure that the mediation commences as soon as practicable.

1. The mediator not later than 19 November 2013 report back to the Court whether the mediation has finished.

1. Subject to further order, at first instance, the Plaintiff pay the costs of the mediation.

1. The proceeding is referred to Associate Justice Daly for further directions on a date that is convenient to her Honour.  The Plaintiff’s solicitor must liaise with the solicitor for the Defendants and her Honour’s Associate for the fixing of a directions hearing.

1. There be liberty to apply.

1. Costs are reserved.

1. The Plaintiff affix an authenticated original of this order in a prominent place near each and every entrance to the Land within 24 hours of the Plaintiff receiving that authenticated original of the order.

1. At the time of affixing the authenticated originals of this order, the Plaintiff remove from the Land the authenticated originals of the order made by Justice Kyrou on 27 August 2013 (‘previous order’) and any other order previously made in this proceeding.  Upon compliance with paragraph 13 of this order, paragraph 7 of the previous order shall be vacated.