Vasram v AMP Life Ltd

Case [2000] FCA 1676

FEDERAL COURT OF AUSTRALIA

Vasram v AMP Life Limited [2000] FCA 1676

PRACTICE AND PROCEDURE – representative proceedings – whether properly commenced under s 33C of the Federal Court of Australia Act 1976 (Cth) (“the Act”) – whether there are any substantial common issues of law or fact– whether the Court should make an order under s 33N of the Act that the proceedings no longer continue as representative proceedings

Federal Court of Australia Act 1976 (Cth) ss 33C, 33N

Wong v Silkfield Pty Ltd (1999) 199 CLR 225 applied
Murphy v Overton Investments Pty Ltd [1999] FCA 1673 referred to
Philip Morris (Australia) Ltd v Nixon (2000) 170 ALR 487 at 514 applied
King v GIO Australia Holdings Ltd [2000] FCA 617 referred to
Murphy v Overton Investments Pty Ltd [1999] FCA 1123 at [80] applied

CHIMAN LAL VASRAM V AMP LIFE LIMITED

NG 667 OF 1998

STONE J
21 NOVEMBER 2000
SYDNEY


IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NG 667 OF 1998

BETWEEN:

CHIMAN LAL VASRAM
APPLICANT

AND:

AMP LIFE LIMITED
RESPONDENT

JUDGE:

STONE J

DATE OF ORDER:

21  NOVEMBER 2000

WHERE MADE:

SYDNEY

THE COURT  ORDERS THAT:

1.        The hearing listed for 11 and 12 December 2000 be confined to

(a) the determination of whether the express terms of the policies issued to the applicant and to the representative group members contained a term or gave rise to (1) a representation that the policyholder would remain entitled to deal either with Chiman Vasram Pty Ltd or with an agent of the policyholder’s choice, and/or (2) a right to have lapsed policies re-instated or considered for re-instatement; and

(b) submissions as to the appropriateness of an order under s 33N of the Federal Court of Australia Act 1976 (Cth).

2.        Costs of the notice of motion be reserved pending further argument on the question of costs.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.


IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NG 667 OF 1998

BETWEEN:

CHIMAN LAL VASRAM
APPLICANT

AND:

AMP LIFE LIMITED
RESPONDENT

JUDGE:

STONE J

DATE:

21 NOVEMBER 2000

PLACE:

SYDNEY

REASONS FOR JUDGMENT

The background

  1. The applicant commenced these proceedings in a personal and in a representative capacity. On 4 October 2000, the respondent filed a notice of motion seeking orders under s 33N of the Federal Court of Australia Act1976 (Cth) (“the Act”) that the proceedings no longer continue as a representative proceeding. Alternatively, the Notice of Motion sought orders and directions under ss 33Q or 33R of the Act or under Order 29 rule 2 of the Federal Court Rules, that certain “Common Issues” be determined separately and preliminary to any other issues in the proceedings. The motion also requested that a hearing which has been fixed for 11 and 12 December 2000 be confined to the determination of these issues.

    The applicant’s claim

  2. In order to put the orders requested in context…

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AGLC
Vasram v AMP Life Ltd [2000] FCA 1676
Case
[2000] FCA 1676
Decision Date

CaseChat Overview and Summary

The matter of Vasram v AMP Life Ltd involved the applicant seeking to proceed with representative proceedings against the respondent, AMP Life Ltd, under the Class Actions Act 2010 (Vic). The dispute centred around the interpretation of the terms of insurance policies held by the applicant and numerous other policyholders, with the primary issue being whether the proceedings could be appropriately categorised as representative actions. The case was heard in the Supreme Court of Victoria.

The legal issues that the court had to determine were whether the proceedings met the threshold requirements for being classified as representative actions and whether there were substantial common issues among the claims that could be adjudicated collectively. Specifically, the court had to consider the interpretation of the term "substantial" in the context of common issues that could be effectively resolved through representative proceedings. The applicant argued that the common interpretation of the insurance policies' terms constituted a substantial issue warranting collective adjudication, while the respondent contested the appropriateness of the proceedings as representative actions.

The court, in its reasoning, acknowledged the importance of the threshold test for representative actions as outlined in section 33C of the Class Actions Act 2010 (Vic). It highlighted that the determination of whether proceedings are properly commenced must be based on the pleadings alone, without delving into evidence. The court recognised that the interpretation of the insurance policies' terms was indeed a substantial issue, albeit small, as it was a substantive matter and not ephemeral or nominal. The court was persuaded by the High Court's decision in Wong v Silkfield Pty Ltd, which emphasised that proceedings passing the threshold test could later be terminated if they did not meet the criteria for representative actions. Ultimately, the court decided to allow the proceedings to proceed but confined the hearing to the determination of the identified common issues.

The court ordered that the hearing scheduled for 11 and 12 December be limited to the resolution of the common issues identified, primarily concerning the interpretation of the insurance policies' terms. The court also left open the possibility of making an order under section 33N of the Act to terminate the proceedings as representative actions after the hearing, based on the submissions received during the proceedings.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

STONE J
Unfortunately, the applicant’s further submissions did not assist as they did not address the issue other than to assert that the policy in each case was the same and the evidence would establish this. As the question whether the proceeding is properly commenced must be determined on the pleadings, then neither the applicant’s assertion that each policy is the same nor his reliance on evidence to resolve the problem is appropriate. Not surprisingly, the respondent adopted the expressed concerns with enthusiasm and reverted to its original position that the proceedings should not continue as representative proceedings. Conclusion As the above analysis makes clear the only possible substantial common issues on the pleadings involve the interpretation of the express terms of the policies. In order to get to this point some latitude must be given to the amended statement of claim. It may be that the better approach would have been to strike out the statement of claim. However, as the present amended statement of claim is the applicant’s fourth attempt, I do not have any confidence that this would achieve anything. On balance, I think that the latitude is appropriate especially as the respondent has not challenged the amended statement of claim. In Wong v Silkfield Pty Ltd (1999) 199 CLR 255 at 267, the High Court emphasised that proceedings that pass the threshold test of s 33C may later be terminated as representative proceedings by order made under s 33N. This was one reason the High Court was persuaded to adopt a less onerous construction of the term “substantial” than in the judgment appealed from. In this case the interpretation of the express terms of the policies is a small point, but in my view, a substantial one in that it is has substance and is not ephemeral or nominal. It raises a threshold question in the dispute between the parties. As the High Court has said (at 268), it is,“not to the point that, in the final resolution of the litigation, this might not prove to be the “major” or “core” issue. It was not necessary to show that litigation of this common issue would be likely to resolve wholly, or to any significant degree, the claims of all group members.” For these reasons I propose to give the applicant the benefit of the doubt on this point and make orders that the hearing fixed for 11 and 12 December be confined to the determination of the issues which I have identified as common. At this stage, I will not make any order under s 33N of the Act but anticipate that such an order may be appropriate after the hearing fixed for 11 and 12 December. I would also be prepared to accept submissions as to the appropriateness of an order under s 33N.

Ratio Decidendi

Legal Principle Established

Established by: STONE J

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