Quinn v Australasian Correctional Management P/L - [2004] SADC 165

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil: Appeal Against a Master's Decision)
QUINN v AUSTRALASIAN CORRECTIONAL MANAGEMENT P/L
Reasons for Decision of Her Honour Judge Kelly
24 November 2004
PROCEDURE - COURTS AND JUDGES GENERALLY - COURTS - RULES OF COURT
Rule 34.01 Class Action. Held plaintiff's Statement of Claim did not sufficiently define the group or disclose common questions of law or fact, balance of convenience favours defendant. Paragraph 9 of Statement of Claim struck out.
Harrison v Lidoform Pty Ltd (Federal Court of Australia, Hely J, 24 November 1998, unreported); Philip Morris v Nixon (2000) 170 ALR 487; Abrook & Ors v Passen (1995) 181 LSJS 85, referred to.

QUINN v AUSTRALASIAN CORRECTIONAL MANAGEMENT P/L
[2004] SADC 165

The appellant appealed from an order of a Master that the plaintiff’s action against it be maintained as a representative action.
That order was made by Master Norman on 14 May 2004 pursuant to Rule 34.01 and 34.04 of the District Court Rules.
The appellant relies on two main grounds of appeal, the first being that the Learned Magistrate erred in finding that the group on whose behalf the action was brought was sufficiently defined and that there were questions of law and fact common to the members of that group. In addition and in the alternative, even if the plaintiff was able to pass the threshold test in Rule 34.04, the Learned Master erred in the exercise of his discretion as to whether the action should be allowed to proceed as a representative action given the ways in which the claims of the potential plaintiffs differed and the implications in the light of the determination that it would be more efficient to proceed as a representative action.
The appeal to this Court is by way of a rehearing pursuant to s 43(2) of the District Court Act and Rule 97.01 of the District Court Rules. In determining the appeal this matter is to proceed by way of a rehearing and the Court is not bound to find an error in the reasoning of the Master or in the exercise of the Master’s discretion in reaching a decision.
The History of the Plaintiff’s claim
The plaintiff issued proceedings in the District Court on 20 May 2003 claiming damages against the defendant.
That claim arose out of her employment by a company known as Pacific Rim Employment Pty Ltd, a labour hire firm, by whom she was engaged to perform work for the defendant at the Woomera Detention Centre over a number of time periods between 23 February 2000 and 13 October 2000.
The plaintiff’s claim is based in negligence and breaches of statutory duty. The particulars of negligence alleged are set out in paragraph 13 of the Statement of Claim and the particulars of the breach of statutory duty are set out in paragraph 14 of the Statement of Claim. The plaintiff alleges that as a result of the negligence and/or breach of statutory duty she has suffered psychiatric injury, loss and damage.
The plaintiff’s application pursuant to Rule 34.02 that the action be allowed to proceed as a representative action originally came before the Master who at first declined to make the order sought and directed that the plaintiff file and serve an amended Statement of Claim in order to ensure that the pleadings defined with a reasonable degree of certainty the group in respect of which the proceedings are sought to be brought and to provide sufficient clarity to enable the defendant to know the case that it was called upon to answer.
The plaintiff did file an amended Statement of Claim and the Learned Master on 14 May 2004 made a formal order that the action be maintained as a representative action for the purposes of Rule 34.04 of the Rules.
The question which arises on appeal is first whether the threshold conditions identified in the Rule 34.01 and Rule 34.04 had been met by the plaintiff and in the event that the plaintiff has met the threshold test whether in the exercise of the Court’s discretion it is appropriate for the action to be maintained as a representative action.
For convenience Rule 34.01 and Rule 34.04 is set out as follows:
Representative Actions
34.01 (1)     Where numerous persons have common questions of fact or law requiring adjudication, one or more members of that group of persons may commence an action as representative parties on behalf of all or some of the group.
(2)     Without derogating from the general words of sub rule (1), in actions for the protection of property including actions by remaindermen or reversioners, and in actions in the nature of waste or a devastavit, one person may sue on behalf of himself and of all persons having the same interest……
34.04 An order that an action is to be maintained as a representative action shall:
(a)     define the group on whose behalf the action is brought;
(b)    define the nature of the claim or claims made on behalf of members of the group and specify the relief claimed;
(c)     define the questions of law or fact common to the claims of members of the group
and make such other orders and give such directions as the nature of the proceedings may require.
In his reasons published on 15 March 2004 the Master reviewed a number of cases relating to representative actions. There was much common ground between the parties as to the applicable principles and the approach to be taken on an application such as this. The plaintiff must “clearly articulate the basis of the claims of those whom the plaintiff” purports to represent: Harrison v Lidoform Pty Ltd (Federal Court of Australia, Hely J, 24 November 1998, unreported).
I agree that without a clear articulation of such claims it is not possible to determine whether or not representative proceedings would provide an efficient and effective means of dealing with the claims of all the group members.
It is clear from Rule 34.04(c) that the plaintiff must identify “the questions of law or fact, to the claims of members of the group”. As the Master said, at paragraph 36 of his reasons:
“the common issues must be “real”, and of “weight and substance” – Wong v Silkfield Pty Ltd (1999) 199 CLR 255 at 267; and in each case the Court had to make a threshold judgment whether the similarities or relationships between the circumstances of the group members’ claims were sufficient to merit grouping for a representative proceeding – Philip Morris (Australia) Ltd v Nixon …….(2000) 170 ALR 487”
A representative order may only be made if the order complies with the requirements of Rule 34.04. Even then, a discretion resides with the Court to grant or refuse the order; Abrook & Ors v Passen (1995) 181 LSJS 85.
It seems to me that the application on this appeal is to be decided by reference to the requirement that there be common questions of fact or law which require adjudication relating to the claim made on behalf of members of the relevant group.
It must be said at the outset that perusal of the Amended Statement of Claim reveals an extensive set of allegations of breach of duty, statutory or otherwise, arising from the dealings between the plaintiff and the defendant during the course of her employment with the defendant. Most of those allegations are personal to the plaintiff. When met with the contention of the defendant’s counsel that there were no substantial common issues, the plaintiff’s counsel spoke to what has been described as a chart and which is referred to at paragraph 66 of the Masters reasons published on 15 March 2004. In my view, the “chart”, far from supporting the contention that there are substantial questions of fact and law common to all of the potential claims, only serves to emphasise the potentially disparate nature of the claims sought to be pursued in a representative action. I say potentially disparate because it is not possible by reference to the pleadings, let alone the chart, to determine whether or not there are substantial common issues.
The Master dealt with the applicable principles in his reasons at paragraph 49. Reference was made to Wong v Silkfield, supra. Although that was a decision of the High Court which dealt with the Federal Court Rules,. I consider that the requirement that there be a substantial common issue of law or fact applies to Rule 34. In referring to this requirement the Master said, at paragraph 53:
“this was interpreted not as “large” or “of special significance” or would “have a major impact on the …….litigation”, but rather, was directed to issues which were “real or of substance”.”
One way to test whether or not, in all of the circumstances, a representative order ought to be made, is to ask whether or not the making of such an order would impose an unduly difficult task on the trial judge if the trial judge were to deal with the various claims by means of a representative action. Such a test embraces the questions of whether or not the nature of the claims is sufficiently articulated and whether or not there is a sufficient or substantial common question of law or fact which may be conveniently dealt with in a representative action.
In my view, the Amended Statement of Claim fails adequately to articulate the factual substratum common to the claims of the plaintiff and those whom she seeks to include within the representative action. Whilst her own claim is pleaded in great detail, her pleading fails adequately to articulate the nature and extent of the various claims of the group of persons referred to in paragraph 9 of the Amended Statement of Claim. That flaw has not been remedied by the chart handed up by counsel. Indeed, in my view, it is impermissible to rely upon a chart which purports to identify the matters common to the various claims where the factual substratum of each of the claims is not set out in the pleadings other than in the most general of terms.
For these reasons I consider that the Masters orders should be set aside. I have given some consideration as to whether or not a further opportunity to amend should be given to the plaintiff to enable a further application to be made for a representative order in the light of an amended pleading. I do not think such a course is warranted because, like the Federal Court in Philip Morris v Nixon, supra, I am not satisfied that the Statement of Claim is capable of being amended so as to come within the requirements of Rule 34.
In my view, if a representative order were to be made in this case, it would impose upon the trial judge an unduly difficult task to the extent that any convenience of dealing with the various claims of the plaintiff and potential plaintiffs is clearly outweighed. This may be put in another way, namely, that the lack of a common substratum to the various claims would make it very difficult, if not impossible, to adequately deal with all of the claims at the one time.
For these reasons I am not satisfied that the plaintiff has made out a case for the action to proceed as a representative action pursuant to Rule 34.04. In my view the plaintiff has not satisfied the threshold test in Rule 34 and I therefore order that paragraph 9 of the Statement of Claim be struck out.