Supreme Court (Chapter I Amendment No. 11) Rules 1999 (Vic)

Supreme Court (Chapter I Amendment No. 11)

Rules 1999

S.R. No. 131/1999

TABLE OF PROVISIONS

Rule Page

1.	Object	1
2.	Authorising provisions	1
3.	Commencement	1
4.	Principal Rules	1
5.	Application of Order 18	1
6.	New Order 18A	2
ORDER 18A	2
GROUP PROCEEDING	2
18A.01 Definitions	2
18A.02 Application	2
18A.03 Commencement of proceeding	3
18A.04 Standing	4
18A.05 Consent of group member	5
18A.06 Persons under disability	5
18A.07 Originating process	6
18A.08 Directions	6
18A.09 Right of group member to opt out	6
18A.10 Causes of action accruing after commencement	7
18A.11 Fewer than seven group members	8
18A.12 Distribution costs excessive	8
18A.13 Proceeding not to continue under this Order	9
18A.14 Consequences of proceeding not continuing under this

Order 10

18A.15 Where not all questions common	10
18A.16 Individual questions	11
18A.17 Directions for further proceedings	11
18A.18 Adequacy of representation	11
18A.19 Stay of execution	12
18A.20 Settlement and discontinuance	12
18A.21 Settlement of individual claim	12
18A.22 When notice to be given	13
18A.23 Notices generally	14
18A.24 Order involving notice	15
18A.25 Judgment of the Court	15

i

Rule Page

18A.26 Constitution etc. of fund	16
18A.27 Effect of judgment	18
18A.28 Appeals	18
18A.29 Reimbursement of plaintiff's costs	20
18A.30 Costs	20

7.	New Forms 18AA and 18AB inserted	20
Form 18AA—Notice of consent to be a group member	20
Form 18AB—Notice of opting out by group member	21

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NOTES 23

ii

STATUTORY RULES 1999

S.R. No. 131/1999

Supreme Court Act 1986

Supreme Court (Chapter I Amendment No. 11)

Rules 1999

The Judges of the Supreme Court make the following Rules:

1. Object

The object of these Rules is to provide for group proceedings by a person representing other persons having claims arising out of the same, similar or related circumstances against the same defendant.

2. Authorising provisions

These Rules are made under section 25 of the powers.

3. Commencement

These Rules come into operation on 1 January

2000.

4. Principal Rules

In these Rules, Chapter I of the Rules of the

Supreme Court1 is called the Principal Rules.

5. Application of Order 18

In Rule 18.01 of the Principal Rules, after
paragraph (b) insert—

"(c) a proceeding commenced under Rule

18A.03.".

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6. New Order 18A

After Order 18 of the Principal Rules insert—

'ORDER 18A

GROUP PROCEEDING

18A.01 Definitions

In this Order, unless the context or subject-
matter otherwise requires—

"defendant" means a person against whom

relief is sought in a group proceeding;

"group member" means a member of a group of persons on whose behalf a group proceeding has been

commenced;

"group proceeding" means a proceeding commenced under Rule 18A.03;

"plaintiff" means a person who commences a group proceeding as a representative party or a person who is substituted

under Rule 18A.18(1) or 18A.21(3);

"sub-group member" means a person

included in a sub-group established
under Rule 18A.15;

"sub-group representative party" means a

person appointed to be a sub-group
representative party under Rule
18A.15.

18A.02 Application

(1) This Order applies to a cause of action

whether arising before or after 1 January
2000.

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(2) This Order does not apply to—

(a) a proceeding under sections 34 and 35 of the Act;

(b) a proceeding concerning—

(i)  the administration of the estate of a deceased person; or

(ii) property subject to a trust;

(c) a proceeding commenced under Order 18.

18A.03 Commencement of proceeding

(1) Subject to this Order, where—

(a)	seven or more persons have claims against the same person;
(b)	the claims of all those persons are in respect of, or arise out of, the same, similar or related circumstances; and
(c)	the claims of all those persons give rise to a substantial common question of law or fact—

a proceeding may be commenced by one or more of those persons as representing some or all of them.

(2) A group proceeding may be commenced—

(a) whether or not the relief sought—

(i) is, or includes, equitable relief; or

(ii)  consists of, or includes, damages; or

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(iii)

includes claims for damages that assessment; or

(iv)  is the same for each person represented; and

(b) whether or not the proceeding—

(i)	is concerned with separate contracts or transactions between the defendant and individual group members; or
(ii)	omissions of the defendant done

involves separate acts or individual group members.

(3) When a person has commenced a proceeding

under this Order, the proceeding shall be
taken to have been commenced and, subject
to any order of the Court, shall be continued
by the plaintiff for and on behalf of all group
members for the time being.

18A.04 Standing

(1) A person referred to in Rule 18A.03(1)(a)

who has a sufficient interest to commence a proceeding on his or her own behalf against another person has a sufficient interest to
commence a group proceeding against that
other person on behalf of other persons
referred to in that paragraph.

(2) Where a person has commenced a group

proceeding, that person retains a sufficient
interest—

(a) to continue the proceeding; and

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S.R. No. 131/1999 r. 6

(b) to bring an appeal from a judgment in the proceeding—

even though he or she ceases to have a claim

against the defendant.

18A.05 Consent of group member

(1) Subject to paragraph (2), the consent of a person to be a group member is not required.

(2) None of the following persons is a group

member unless the person gives written

consent in Form 18AA to being so—

(a)	the Commonwealth, a State or a Territory;
(b)	a Minister of the Commonwealth, a State or a Territory;
(c)	a body corporate established for a public purpose by a law of the Commonwealth, a State or a Territory, other than an incorporated company or association;
(d)	any judge, magistrate or other judicial officer of the Commonwealth, a State or a Territory; or
(e)

any other officer of the in his or her capacity as an officer.

18A.06 Persons under disability

(1) In this Rule, "person under disability" has the same meaning as in Rule 15.01.

(2) It is not necessary for a person under

disability to have a litigation guardian merely in order to be a group member.

(3) A group member who is a person under

disability may only take a step in the group

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proceeding, or conduct part of the

proceeding, by his or her litigation guardian.

18A.07 Originating process

(1) A group proceeding shall be commenced by

writ indorsed in accordance with Rule
5.04(2)(b).

(2) The indorsement on the writ shall, in

addition to any other matters required to be

included—

(a)

describe or otherwise identify the group relates;

(b)

specify the nature of the claims made relief claimed; and

(c) specify the questions of law or fact common to the claims of the group members.

(3) In describing or otherwise identifying group

members for the purposes of paragraph (2), it
is not necessary to name, or specify the
number of, the group members.

18A.08 Directions

(1) A summons for directions shall be served on the defendant with the writ.

(2) The summons shall be for hearing before a Judge and shall specify a day for hearing which is not less than 30 days after the day on which the writ and the summons are served and not more than 90 days after the day on which the writ was filed.

18A.09 Right of group member to opt out
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(1) The Court shall fix a date before which a

group member may opt out of a group
proceeding.

(2) A group member may opt out of the group

proceeding by written notice in Form 18AB
before the date so fixed.

(3) The Court, on the application of a group

member, the plaintiff or the defendant, may
extend the period within which a group
member may opt out of the group
proceeding.

(4) Except with the leave of the Court, the trial of a group proceeding shall not commence earlier than the date before which a group member may opt out of the proceeding.

(5) The Court, on the application of a person who has opted out of a group proceeding, may reinstate that person as a group member

on such terms as the Court thinks fit.

18A.10 Causes of action accruing after

commencement

(1) The Court may at any stage of a group proceeding, on application made by the plaintiff, give leave to amend the writ

commencing the group proceeding so as to
alter the description of the group.

(2) The description of the group may be altered so as to include a person—

(a)	whose cause of action accrued after the commencement of the group proceeding but before such date as the Court fixes when giving leave; and
(b)	who would have been included in the group, or, with the consent of the person would have been included in the

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group, if the cause of action had accrued before the commencement of the proceeding.

(3) The date mentioned in paragraph (2)(a) may

be the date on which leave is given or another date before or after that date.

(4) Where the Court gives leave under

paragraph (1), it may also make any other
orders it thinks just, including an order
relating to the giving of notice to persons
who, as a result of the amendment, will be
included in the group and the date before
which such persons may opt out of the

proceeding.

18A.11 Fewer than seven group members

If, at any stage of a group proceeding, it appears likely to the Court that there are fewer than seven group members, the Court

may order, on such conditions (if any) as it

thinks fit—

(a)	that the proceeding continue under this Order; or
(b)	that the proceeding no longer continue under this Order.

18A.12 Distribution costs excessive

Where—

(a)	the relief claimed in a group proceeding is or includes payment of money to group members (otherwise than in respect of costs); and
(b)	on application by the defendant, the Court concludes that it is likely that, if judgment were to be given in favour of the plaintiff, the cost to the defendant of

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S.	R. No. 131/1999
identifying the group members and distributing to them the amounts ordered to be paid to them would be excessive having regard to the likely total of those amounts—

the Court may, by order—

(c)	direct that the proceeding no longer continue under this Order; or
(d)	stay the proceeding so far as it relates to relief of the kind mentioned in paragraph (a).

18A.13 Proceeding not to continue under this

Order

(1) The Court may, on application by the

defendant, order that a proceeding no longer
continue under this Order where it is
satisfied that it is in the interests of justice to

do so because—

(a)	the costs that would be incurred if the proceeding were to continue as a group proceeding are likely to exceed the costs that would be incurred if each group member conducted a separate proceeding; or
(b)	all the relief sought can be obtained by means of a proceeding other than a group proceeding; or
(c)	the group proceeding will not provide an efficient and effective means of dealing with the claims of group members; or
(d)	it is otherwise inappropriate that the claims be pursued by means of a group proceeding.

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(2) If the Court dismisses an application under

this Rule, the Court may order that no further
application under this Rule be made by the
defendant except with the leave of the Court.

(3) Leave for the purposes of paragraph (2) may

be granted subject to such conditions as to
costs as the Court thinks fit.

18A.14 Consequences of proceeding not continuing

under this Order

Where the Court makes an order under Rule 18A.11, 18A.12 or 18A.13 that a proceeding no longer continue under this Order—

(a)	the proceeding may be continued as a proceeding by the plaintiff on his or her own behalf against the defendant; and
(b)	on the application of a person who was a group member, the Court may order that the person be joined as a plaintiff in the proceeding.

18A.15 Where not all questions common

(1) If it appears to the Court that determination of the question or questions common to all group members will not finally determine the

claims of all group members, the Court may
give directions in relation to the

determination of the remaining questions.

(2) In the case of questions common to the

claims of some only of the group members,
the directions given by the Court may
include directions establishing a sub-group
consisting of those group members and
appointing a person who consents to the
appointment to be the sub-group
representative party on behalf of the sub-
group members.

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S.R. No. 131/1999 r. 6

(3) Where the Court appoints a person other

than the plaintiff to be a sub-group
representative party, that person, and not the
plaintiff, is liable for costs associated with
the determination of the question or
questions common to the sub-group
members.

18A.16 Individual questions

(1) In giving directions under Rule 18A.15, the

Court may permit an individual group
member to take part in the proceeding for the
purpose of determining a question that
relates only to the claim of that member.

(2) In such a case, the individual group member,

and not the plaintiff, is liable for costs
associated with the determination of the
question.

18A.17 Directions for further proceedings

Where a question cannot properly or conveniently be dealt with under Rule 18A.15 or 18A.16, the Court may give directions for the commencement and conduct of another proceeding, whether or not a group proceeding.

18A.18 Adequacy of representation

(1) If, on an application by a group member, it appears to the Court that the plaintiff is not able adequately to represent the interests of the group members, the Court may substitute

another group member as plaintiff and may
make such other orders as it thinks fit.

(2) If, on an application by a sub-group member,

it appears to the Court that the sub-group
representative party is not able adequately to
represent the interests of the sub-group

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members, the Court may substitute another
person as sub-group representative party and

may make such other orders as it thinks fit.

18A.19 Stay of execution

Where a defendant commences a proceeding in the Court against a group member, the Court may order a stay of execution in respect of any relief awarded to the group member in the group proceeding until the other proceeding is determined.

18A.20 Settlement and discontinuance

(1) A group proceeding may not be settled or

discontinued without the approval of the
Court.

(2) If the Court gives such approval, it may

make such orders as it thinks fit with respect
to the distribution of any money, including
interest, paid under a settlement or paid into

court.

18A.21 Settlement of individual claim

(1) The plaintiff may, with the leave of the

Court, settle his or her individual claim in whole or in part at any stage of the group proceeding.

(2) The Court may order that a person who has settled his or her individual claim in whole or in part cease to be plaintiff.

(3) Where an order is sought under paragraph (2), the Court may, on the application of a group member, make an order substituting as

plaintiff a group member who consents to
that substitution.

(4) An order shall not be made under paragraph (2) unless the Court is satisfied that—

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(a)	notice of application for the order has been given to group members in accordance with Rule 18A.22(1);
(b)	such notice was given in sufficient time for an application to be made for an order under paragraph (3); and
(c)	an order under paragraph (3) will be made.

(5) The Court may make an order under

paragraph (2) or (3) on such terms and
conditions, as to costs or otherwise, as the

Court thinks fit.

18A.22 When notice to be given

(1) Notice shall be given to group members of the following matters in relation to a group proceeding—

(a)	the commencement of the proceeding and the right of the group members to opt out of the proceeding before a
specified date, being the date fixed under Rule 18A.09(1);
(b)	an application by the defendant for the dismissal of the proceeding on the ground of want of prosecution;
(c)	an application by the plaintiff seeking leave under Rule 18A.21.

(2) The Court may dispense with compliance

with any or all of the requirements of
paragraph (1) where the relief sought in a
proceeding does not include any claim for
damages.

(3) If the Court so orders, notice shall be given

to group members of any offer to
compromise the proceeding.

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(4) Unless the Court is satisfied that it is just to

do so, an application for approval under Rule 18A.20 shall not be determined unless notice has been given to group members.

(5) The Court may, at any stage, order that notice of any matter be given to a group member or group members.

(6) Notice under this Rule shall be given as soon

as practicable after the happening of the
event to which the notice relates.

18A.23 Notices generally

(1) The form and content of a notice under Rule 18A.22 shall be as approved by the Court.

(2) The Court shall, by order, specify—

(a) who is to give the notice; and

(b) the manner in which the notice is to be given—

and the order may include provision—

(c) directing a party to provide information relevant to the giving of the notice; and

(d) relating to the costs of notice.

(3) An order under paragraph (2) may require

that notice be given by means of press
advertisement, radio or television broadcast,
or by any other means.

(4) The Court shall not order that notice be given personally to each group member unless it is satisfied that it is reasonably practicable, and not unduly expensive, to do

so.

(5) A notice that concerns a matter for which the

Court's leave is required shall specify the period within which a group member or

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S.R. No. 131/1999 r. 6

other person may apply to the Court, or take
some other step, in relation to the matter.

(6) A notice that includes or concerns conditions shall specify the conditions and the period, if any, for compliance.

(7) The failure of a group member to receive or

respond to a notice does not affect a step
taken, an order made, or a judgment given,
in a proceeding.

18A.24 Order involving notice

An application for an order involving notice shall be supported by an affidavit setting out to the best of the applicant's information,

knowledge and belief—

(a)	the identity or description of the group members; and
(b)	the whereabouts of the group members; and
(c)	the means by which a notice ordered by the Court is most likely to come to the attention of the group members.

18A.25 Judgment of the Court

(1) The Court may, in determining a matter in a group proceeding—

(a) determine a question of law; (b) determine a question of fact; (c) make a declaration of liability;

(d) grant any equitable relief;

(e) members, sub-group members or

make an award of damages for group damages consisting of specified

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amounts or amounts worked out in such manner as the Court specifies;

(f) award damages in an aggregate amount without specifying amounts awarded in respect of individual group members;

(g) make such other order as is just.

(2) In making an order for an award of damages,

the Court shall make provision for the
payment or distribution of the money to the
group members entitled.

(3) Subject to Rule 18A.20, the Court shall not make an award of damages under paragraph (1)(f) unless a reasonably accurate

assessment can be made of the total amount
to which group members will be entitled

under the judgment.

(4) Where the Court has made an award of

damages, the Court may give directions in

relation to—

(a)	the manner in which a group member or sub-group member is to establish his or her entitlement to share in the damages; and
(b)	the manner in which any dispute regarding the entitlement of a group member or sub-group member to share in the damages is to be determined.

18A.26 Constitution etc. of fund

(1) Without limiting the operation of Rule 18A.25(2), in making provision for the distribution of money to group members, the

Court may provide for—
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(a) the constitution and administration of a fund consisting of the money to be distributed; and

(b) either—

(i)  the payment by the defendant of a fixed sum of money into the fund; or

(ii)  the payment by the defendant into the fund of such instalments, on such terms, as the Court directs to meet the claims of group members; and

(c) entitlements to interest earned on the money in the fund.

(2) The costs of administering a fund are to be

borne by the fund or the defendant, or by
both, as the Court directs.

(3) Where the Court orders the constitution of a

fund mentioned in paragraph (1), the order
shall—

(a)	require notice to be given to group members in such manner as is specified in the order;
(b)	specify the manner in which a group member is to make a claim for payment out of the fund and establish his or her entitlement to the payment;
(c)	specify a day (which is six months or more after the day on which the order is made) on or before which the group members are to make a claim for payment out of the fund; and
(d)	make provision in relation to the day before which the fund is to be

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distributed to group members who have established an entitlement to be paid out of the fund.

(4) The Court may, if it is just, allow a group

member to make a claim after the day fixed
under paragraph (3)(c) if the fund has not
already been fully distributed.

(5) On application by the defendant after the day

fixed under paragraph (3)(d), the Court may
make such orders as it thinks fit for the
payment from the fund to the defendant of
the money remaining in the fund.

18A.27 Effect of judgment

A judgment given in a group proceeding—

(a)	shall describe or otherwise identify the group members who will be affected by it; and
(b)	binds all persons who are such group members at the time the judgment is given.

18A.28 Appeals

(1) On an appeal by the plaintiff on behalf of

group members and in respect of the
judgment to the extent that it relates to
questions common to the claims of group
members, the parties to the appeal are the
plaintiff, as the representative of the group
members, and the defendant.

(2) On an appeal by a sub-group representative

party on behalf of sub-group members in
respect of the judgment to the extent that it
relates to questions common to the claims of
sub-group members, the parties to the appeal
are the sub-group representative party, as the

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S.R. No. 131/1999 r. 6

representative of the sub-group members,
and the defendant.

(3) On an appeal by the defendant in a group

proceeding, other than an appeal referred to
in paragraph (4), the parties to the appeal
are—

(a)	in the case of an appeal in respect of the judgment generally—the defendant and the plaintiff as the representative of the group members; and
(b)	in the case of an appeal in respect of the judgment to the extent that it relates to questions common to the claims of sub- group members—the defendant and the sub-group representative party as the representative of the sub-group members.

(4) The parties to an appeal in respect of the

determination of a question that relates only
to a claim of an individual group member are
that group member and the defendant.

(5) If the plaintiff or the sub-group

representative party does not commence an
appeal within the time provided, another
member of the group or sub-group may,
within a further 21 days, commence an
appeal as representing the group members or
sub-group members, as the case may be.

(6) Where an appeal is brought from a judgment

of the Trial Division in a group proceeding,
the Court of Appeal may direct that notice of
the appeal be given to such person or
persons, and in such manner, as that court
thinks fit.

(7) Rule 18A.09 does not apply to an appeal.

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(8) The notice of appeal shall describe or

otherwise identify the group members or
sub-group members, as the case may be, but
need not specify the names or number of

those members.

18A.29 Reimbursement of plaintiff's costs

(1) Where the Court has made an award of

damages in a group proceeding, the plaintiff
or a sub-group representative party, or a
person who has been a plaintiff or such a
party, may apply to the Court for an order

under this Rule.

(2) If, on an application under this Rule, the

Court is satisfied that the costs reasonably incurred in relation to the group proceeding by the person making the application are likely to exceed the costs recoverable by the person from the defendant, the Court may order that an amount equal to the whole or a part of the excess be paid to that person out of the damages awarded.

18A.30 Costs

In a group proceeding, the Court—

(a)	may order the plaintiff or the defendant to pay costs;
(b)	except as authorised by Rule 18A.15 or 18A.16, may not order a group member or a sub-group member to pay costs.'.

7. New Forms 18AA and 18AB inserted

After Form 15B to the Principal Rules insert—

"FORM 18AA
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S.R. No. 131/1999 r. 7

RULE 18A.05(2)

NOTICE OF CONSENT TO BE A GROUP MEMBER

[heading as in originating process]

To: The Plaintiff and the Defendant

TAKE NOTICE THAT [insert name of person], a person referred to in Rule

18A.05(2), consents to be a group member in this proceeding.

Dated: [e.g. 15 June, 19 ]
[Signed]
Signature of person consenting or his or her solicitor
Address of person consenting:

Position of person consenting:

—————————

FORM 18AB

RULE 18A.09(2)

NOTICE OF OPTING OUT BY GROUP MEMBER

[heading as in originating process]

To:	The Prothonotary
The Plaintiff
The Defendant

I, [name], a group member in the above group proceeding, give notice under

Rule 18A.09 that I am opting out of this proceeding.

Dated: [e.g. 15 June, 19 ]

[Signed]

Signature of group member or his or her solicitor:

Address of group member:	".
Dated: 9 December 1999

Supreme Court (Chapter I Amendment No. 11) Rules 1999

S.R. No. 131/1999

J. H. PHILLIPS, C.J.
ROBERT BROOKING, J.A.
W. F. ORMISTON, J.A.
STEPHEN CHARLES, J.A.
PETER BUCHANAN, J.A.
ALEX CHERNOV, J.A.
G. HAMPEL, J.
F. H. R. VINCENT, J.
BERNARD G. TEAGUE, J.
ALLAN W. McDONALD, J.
T. H. SMITH, J.
DAVID ASHLEY, J.
JOHN J. HEDIGAN, J.
JOHN COLDREY, J.
DAVID BYRNE, J.
D. L. HARPER, J.
H. R. HANSEN, J.
ROSEMARY BALMFORD, J.

E. W. GILLARD, J.

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Supreme Court (Chapter I Amendment No. 11) Rules 1999

S.R. No. 131/1999 Notes

NOTES

1 Rule 4: S.R. No. 19/1996. Reprint No. 1 as at 1 September 1998. Further

amended by S.R. Nos 121/1998, 150/1998 and 96/1999.