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

i 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 -- 1 of 25 -- Rule Page ii 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 ═══════════════ NOTES 23 -- 2 of 25 -- 1 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 Supreme Court Act 1986 and all other enabling 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.". -- 3 of 25 -- S.R. No. 131/1999 Supreme Court (Chapter I Amendment No. 11) Rules 1999 2 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. r. 6 -- 4 of 25 -- S.R. No. 131/1999 Supreme Court (Chapter I Amendment No. 11) Rules 1999 3 (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 r. 6 -- 5 of 25 -- S.R. No. 131/1999 Supreme Court (Chapter I Amendment No. 11) Rules 1999 4 (iii) includes claims for damages that would require individual 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) involves separate acts or omissions of the defendant done or omitted to be done in relation to 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 r. 6 -- 6 of 25 -- S.R. No. 131/1999 Supreme Court (Chapter I Amendment No. 11) Rules 1999 5 (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 Commonwealth, a State or a Territory, 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 r. 6 -- 7 of 25 -- S.R. No. 131/1999 Supreme Court (Chapter I Amendment No. 11) Rules 1999 6 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 members to whom the proceeding relates; (b) specify the nature of the claims made on behalf of the group members and the 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 r. 6 -- 8 of 25 -- S.R. No. 131/1999 Supreme Court (Chapter I Amendment No. 11) Rules 1999 7 (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 r. 6 -- 9 of 25 -- S.R. No. 131/1999 Supreme Court (Chapter I Amendment No. 11) Rules 1999 8 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 r. 6 -- 10 of 25 -- S.R. No. 131/1999 Supreme Court (Chapter I Amendment No. 11) Rules 1999 9 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. r. 6 -- 11 of 25 -- S.R. No. 131/1999 Supreme Court (Chapter I Amendment No. 11) Rules 1999 10 (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. r. 6 -- 12 of 25 -- S.R. No. 131/1999 Supreme Court (Chapter I Amendment No. 11) Rules 1999 11 (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 r. 6 -- 13 of 25 -- S.R. No. 131/1999 Supreme Court (Chapter I Amendment No. 11) Rules 1999 12 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— r. 6 -- 14 of 25 -- S.R. No. 131/1999 Supreme Court (Chapter I Amendment No. 11) Rules 1999 13 (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. r. 6 -- 15 of 25 -- S.R. No. 131/1999 Supreme Court (Chapter I Amendment No. 11) Rules 1999 14 (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 r. 6 -- 16 of 25 -- S.R. No. 131/1999 Supreme Court (Chapter I Amendment No. 11) Rules 1999 15 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) make an award of damages for group members, sub-group members or individual group members, being damages consisting of specified r. 6 -- 17 of 25 -- S.R. No. 131/1999 Supreme Court (Chapter I Amendment No. 11) Rules 1999 16 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— r. 6 -- 18 of 25 -- S.R. No. 131/1999 Supreme Court (Chapter I Amendment No. 11) Rules 1999 17 (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 r. 6 -- 19 of 25 -- S.R. No. 131/1999 Supreme Court (Chapter I Amendment No. 11) Rules 1999 18 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 r. 6 -- 20 of 25 -- S.R. No. 131/1999 Supreme Court (Chapter I Amendment No. 11) Rules 1999 19 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. r. 6 -- 21 of 25 -- S.R. No. 131/1999 Supreme Court (Chapter I Amendment No. 11) Rules 1999 20 (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 r. 6 -- 22 of 25 -- S.R. No. 131/1999 Supreme Court (Chapter I Amendment No. 11) Rules 1999 21 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 r. 7 -- 23 of 25 -- S.R. No. 131/1999 Supreme Court (Chapter I Amendment No. 11) Rules 1999 22 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. ═══════════════ -- 24 of 25 -- S.R. No. 131/1999 Supreme Court (Chapter I Amendment No. 11) Rules 1999 23 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. Notes -- 25 of 25 --