Tuck v Australian Football League
[2024] VSC 126
•20 March 2024
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
GROUP PROCEEDINGS LIST
S ECI 2023 01055
| KATHERINE TUCK & Ors (according to the Schedule) | Plaintiffs |
| v | |
| AUSTRALIAN FOOTBALL LEAGUE (ACN 004 155 211) & Ors (according to the Schedule) | Defendants |
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JUDGE: | Keogh J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 14 March 2024 |
DATE OF RULING: | 20 March 2024 |
CASE MAY BE CITED AS: | Tuck v Australian Football League |
MEDIUM NEUTRAL CITATION: | [2024] VSC 126 |
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GROUP PROCEEDING — Application to discontinue proceeding — Application to dispense with requirement to notify group members — Supreme Court Act 1986 (Vic) ss 33V, 33X — Crawford v Australia and New Zealand Banking Group Ltd [2022] VSC 297 — Hassan v Van Diemen [2021] VSC 839 — Where same cause of action pursued for group members in related proceeding — Expense and inconvenience of notice — Discontinuance approved — Notification requirement dispensed with.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiffs | P Hamilton | Griffins Lawyers |
| For the First Defendant | B Ihle KC with R Singleton | |
| For the Second to Fifth Defendants | B Jellis |
HIS HONOUR:
This group proceeding was commenced by filing a writ and statement of claim on 17 March 2023. The plaintiffs now apply to discontinue the proceeding and for an order dispensing with the requirement under s 33X(4) of the Supreme Court Act 1986 (Vic) (‘SCA’) that notice be given to group members of the discontinuance application.
Discontinuance of the proceeding requires approval of the Court.[1] The question of approval is to be approached from the perspective of how the discontinuance would affect the interests of group members.[2]
[1]Supreme Court Act 1986 (Vic) s 33V (‘SCA’).
[2]Laine v Thiess Pty Ltd [2016] VSC 689, [14].
The application is supported by affidavits sworn by Gregory Michael Griffin, solicitor for the plaintiffs, sworn 18 September 2023 and 6 March 2024.
Background
This proceeding relates to alleged concussion and brain injuries suffered by former and current players in the Australian Football League (‘AFL’) on or after 23 December 1997. The claim is brought on behalf of players (including the estates of deceased players) who have suffered head knocks leading to symptoms consistent with concussion and resulting in brain damage (‘players’), and persons in close relationships with players who have suffered mental harm from the mental decline or death of those players (‘relationship claimants’). The claim made for relationship claimants includes, where applicable, loss of dependency damages.
The three plaintiffs named in the proceeding are: Katherine Tuck, who is the wife of Shane Tuck (‘Tuck’) and the personal representative of his deceased estate; Jay Schulz (‘Schulz’); and Darren Jarman (‘Jarman’).
Tuck played for the Richmond football club. Schulz played for the Richmond and Port Adelaide football clubs. Jarman played for the Hawthorn and Adelaide football clubs.
The named defendants are the AFL and the Richmond, Port Adelaide, Hawthorn and Adelaide clubs.
There are 57 persons registered with the plaintiffs’ lawyers as prima facie group members, including the three plaintiffs.
The writ and statement of claim in this proceeding have not been served on the defendants. However, counsel representing the defendants appeared at the application.
The proceeding Rooke v Australian Football League (S ECI 2023 00969) (‘Rooke proceeding’) was commenced in this court on 14 March 2023 by the filing of a writ and general indorsement. The Rooke proceeding concerns the same subject matter as this proceeding. For that reason, orders were made on 14 June 2023 in both proceedings directed to determination of a multiplicity contest. However, before that contest came on for hearing, the plaintiffs in this proceeding applied to discontinue.
The Rooke proceeding covers the period from 1 January 1985 to 14 March 2023. In the general indorsement that was originally filed, group members were limited to AFL players. However, in the statement of claim filed on 6 December 2023, the definition of group members was expanded to cover dependency claims in respect of deceased players, and secondary victims who were in a close relationship with an injured player and who suffered mental harm because of the concussive head injuries suffered by that player. This means that all group members in this proceeding are captured by the group member definition in the Rooke proceeding.
The AFL is the sole defendant to the Rooke proceeding.
On 23 February 2024, Griffins Lawyers wrote to all 57 of its registered group members advising them of the discontinuance application, noting that it was to be heard on 14 March 2024, and that they qualified as group members in the Rooke proceeding. Griffin said that none of the 17 registered group members who contacted him in response to the letter expressed any concern with or opposition to the discontinuance application. Further, no group member expressed any concern to Griffin about the fact that individual AFL clubs were not defendants to the Rooke proceeding.
Griffin noted the definition of group members in this proceeding involves an open class. He said it would be extremely difficult and enormously costly to precisely determine all persons comprising the class of group members.
Griffin said both this proceeding and the Rooke proceeding had received significant media interest and publicity, including by major national media organisations. He said on 27 February 2024, the online version of the Herald Sun newspaper published an article on its website about the proposed discontinuance of this proceeding entitled ‘AFL Concussion Crisis: Darren Jarman, J Schulz and Shane Tuck’s widow rolled into mega suit as Greg Griffin discontinues case’. The article included the following:
And while the Rooke-led lawsuit covers all players fighting the AFL for their treatment of players with concussion, a quarter of AFL clubs will now dodge direct lawsuits”.
Griffin said a version of the online article was subsequently published in the Herald Sun newspaper on 28 February 2024 under a revised headline ‘Changes as class actions merge; trio of players join Rooke’.
Principles
The principles applicable to an application to discontinue under s 33V of the SCA were stated by Nichols J in Crawford v Australia and New Zealand Banking Group Ltd,[3] adopting what was said by John Dixon J in Hassan v Van Diemen:[4]
[3][2022] VSC 297 (citations omitted).
[4][2021] VSC 839 [21].
4.The principles governing an application of this kind are reasonably well-established, having been detailed by, amongst others, Rares J in Wotton v State of Queensland, Perram J in Mercedes Holdings Pty Ltd v Waters and Annastasiou J in Babscay Pty Ltd v Pitcher Partners. Having considered those and other authorities, in Hassan v Van Diemen, John Dixon J summarised the position in the following terms:
(a) A representative proceeding cannot be discontinued without the approval of the court. Any order that is made must have regard to the interests of the present parties and group members who may be affected by the terms of any grant of leave to discontinue. The order must not have a substantive impact on group members or affect their rights. The court must guard against any injustice that could be done to persons who are not represented in these proceedings and whose rights may be adversely affected by their outcome. The court has an important responsibility of safeguarding the interests of group members as a whole. It must carefully scrutinise the way in which any order is formulated.
(b) Some courts have found that, in approving a discontinuance against certain defendants, the test is the same as a settlement or compromise of a claim, in that the court must assess whether the discontinuance is a fair and reasonable one, in the interests of the group members as a whole, not just the applicant and respondent. The applicant bears the onus to establish this.
(c) Other courts have held that the test is whether the discontinuance will not adversely impact the legal or financial position of any group members, and will not be unfair, unreasonable or adverse to the interests of group members.
(d) In cases of unilateral discontinuance at an early stage of the proceeding and well in advance of the expiry of limitation periods after discontinuance, I prefer this latter approach. The legal effect of a unilateral discontinuance is different to a settlement because in this case, the applicant is free to commence a new proceeding against the same respondent and no res judicata or issue estoppel arises.
(e) An approval for discontinuance of a claim may be brought on the basis that, after further investigation, the plaintiff comes to the conclusion that the cause of action bears slim or no prospect of success, there is a want of economic viability, and there is no res judicata or impending expiry of a limitations period.
It may be an overriding consideration that the same cause of action is being pursued for the same group members in a second proceeding.[5]
[5]Re CIMIC Group Ltd [2019] VSC 48, [36].
An application to discontinue must not be approved unless notice has been given to group members, ‘unless the court is satisfied that it is just to do so’.[6] Notice of the application to discontinue has not been given to group members in accordance with the statutory provision. In Turner v Bayer Australia Ltd,[7] John Dixon J considered the factors relevant to an application to dispense with notice:
The discretion of the court to dispense with the notice requirement for a s 33V application needs to take into account the consequences for a group member of being bound by an adverse determination, should the application succeed, of which they have not had prior notice. Factors relevant to the discretion include:
(a) whether there was any real prospect that a group member, acting rationally, would oppose the orders sought;
(b) whether the expense and inconvenience of requiring the notice to be provided to group members would be disproportionate to any benefit that would arise;
(c) whether provision of notice will create a risk of confusion or uncertainty on behalf of group members; and
(d) the court’s statutory obligation, enshrined by s 8 of the Civil Procedure Act 2010 (Vic), to seek to give effect to the overarching purpose to facilitate the just, efficient, timely, and cost effective resolution of the real issues in dispute in the proceeding.
[6]SCA (n 1) s 33X(4).
[7][2021] VSC 241, [29] (citations omitted).
Analysis
The AFL, in its defence in the Rooke proceeding, admits that it owed a duty of care to players ‘to avoid exposing them to unnecessary risk of long-term and/or permanent personal injury or death as a result of head injury or concussion injury during matches and training’. However, the AFL denies the content of the duty alleged by Rooke and that the duty owed was non-delegable. Rooke pleads as to the content of the duty:
Further and in addition to the preceding paragraph, during the period, the AFL had an obligation to provide the AFL players with a safe system of work during matches and training, analogous to the duty owed by an employer to an employee.
The AFL responds to that pleading as follows:
It denies paragraph 26, and says further that any relevant “system of work” was the responsibility of the AFL players’ employers as referred to in sub-paragraph 7(c) above, including the Plaintiff’s Employer as referred to in paragraph 9 above.
In the Rooke proceeding the AFL pleads that the clubs, as the players’ employers, were responsible for the health and wellbeing of the players during matches and training, and that qualified medical and allied health professionals were engaged by the clubs to provide medical assessment, advice and treatment of injuries to players during matches and training. Further, in responding to allegations specific to Rooke’s own claim, the AFL pleads that it was not reasonably practicable for it to provide medical monitoring, assessment and management of all players during matches and training.The AFL pleads that this was the responsibility of clubs as the relevant employers, and the medical and allied health professionals employed by those clubs.
The potential claims by many AFL players who are group members in this proceeding against the clubs for whom they played, may well be barred by the operation of applicable limitations statutes. Whether the claims are statute barred, and if so whether an extension of time may be available, would depend on the application of the relevant limitations provisions to the circumstances of each individual case. The continued effluxion of time may be relevant to the question of prejudice and whether time should be extended for a player to make a claim against the club. On the other hand, the publicity surrounding the issue of concussion injuries in the AFL, the two group proceedings, and other individual AFL player concussion claims being pursued in proceedings in this court may mean that clubs are sufficiently on notice of claims of this nature such that the continued effluxion of time is not a significant issue in terms of prejudice.
There is the further possibility that in some cases the failure by a player to commence proceedings against a club may, because of the particular provisions that apply, bar the player’s claim in circumstances where an extension of time is unavailable. I have not been addressed on these issues.
There are three potential consequences arising from the above matters. First, the potential exists for players to achieve different outcomes against the AFL and AFL clubs to the extent of any differences in the nature and content of the duties they owed.
Second, differences may also arise because of the application of limitations provisions.
Third, this proceeding suspended the limitation period against all named defendants when it was commenced. The limitation period against the AFL is equally suspended by the Rooke proceeding. The effect of discontinuing against the four clubs named as defendants in this proceeding appears to be that the limitation period again begins to run in respect of those clubs. The limitation period for the other 14 AFL clubs has not been suspended by either proceeding.
For the following reasons, I conclude that despite the above matters, the application to discontinue this proceeding should be approved and that the requirement for notice to be given to group members prior to approval should be dispensed with.
First, this proceeding is in the earliest possible stage, having been issued but not served. The defendants do not oppose the application to discontinue.
Second, apart from the position of the AFL clubs named as defendants, the subject matter of this proceeding is entirely within the Rooke proceeding. A significantly longer time period is covered by the Rooke proceeding. There is no material difference in the definition of group members, the injuries alleged or the claims being advanced.
Third, notice of the application to discontinue has been given to the registered group members in this proceeding, and more broadly by the Herald Sun articles. The notice included that the group members in this proceeding are within the definition of group members in the Rooke proceeding and that, unlike in this proceeding, the Rooke proceeding claim is made against the AFL as sole defendant.
Fourth, the duty and limitation issues to which I have referred and the forensic choice about how to proceed are nuanced and complex. A notice about these matters is very likely to cause confusion and uncertainty among group members. It is difficult to conceive of a notice that could effectively communicate the issues to group members in a way that assisted them to take steps to further protect their interests.
Fifth, the claim in the Rooke proceeding covers the whole of the concussion brain injuries sustained by players, the resulting injuries to relationship claimants, and the loss and damage that flows from those injuries. As far as group members in that proceeding are concerned it is not to the point that AFL clubs may bear concurrent responsibility for those injuries. It is difficult to judge how real the potential for different outcomes between the AFL and AFL clubs is. Ultimately the forensic choice as to how to proceed on behalf of group members is a matter for the plaintiff in the Rooke proceeding and his legal advisers. As a consequence of discontinuance of this proceeding and the defence pleaded by the AFL in the Rooke proceeding, the plaintiff and his advisers in that proceeding may need to give further consideration to whether the AFL clubs, or at least a representative club, should be joined as a defendant. The issue is best left to them.
Sixth, I accept Griffin’s evidence that the expense and inconvenience associated with providing a notice to group members would be disproportionate to any benefit that would arise.
Seventh, I accept the plaintiff’s proposal that discontinuance not take effect until 30 days after the application is approved. That will allow the plaintiffs’ solicitors to communicate the duty and limitation issues addressed above to registered group members. It will also allow the plaintiff in the Rooke proceeding and his advisers to give further consideration to these issues.
Conclusion
The requirement to give notice of the application by the plaintiffs to discontinue the proceeding is dispensed with. The application to discontinue is approved. Orders will be made in accordance with these reasons.
S C H E D U L E O F P A R T I E S
S ECI 2023 01055
| KATHERINE TUCK | First Plaintiff |
| - and - | |
| JAY SCHULZ | Second Plaintiff |
| - and - | |
| DARREN JARMAN | Third Plaintiff |
| - and - | |
| AUSTRALIAN FOOTBALL LEAGUE (ACN 004 155 211) | First Defendant |
| - and - | |
| RICHMOND FOOTBALL CLUB LTD (ACN 005 563 011) | Second Defendant |
| - and - | |
| PORT ADELAIDE FOOTBALL CLUB LTD (ACN 068 839 547) | Third Defendant |
| - and - | |
| HAWTHORN FOOTBALL CLUB LTD (ACN 005 068 851) | Fourth Defendant |
| - and - | |
| ADELAIDE FOOTBALL CLUB LTD (ACN 008 101 568) | Fifth Defendant |
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