Courts and Tribunals Legislation (Miscellaneous Amendments) Act 2000

i Courts and Tribunals Legislation (Miscellaneous Amendments) Act 2000 Act No. 78/2000 TABLE OF PROVISIONS Section Page PART 1—PRELIMINARY 1 1. Purpose 1 2. Commencement 2 PART 2—ADMINISTRATION AND PROBATE ACT 1958 3 3. Definition of Rules 3 4. Authentication of grants of probate and administration 3 PART 3—EVIDENCE ACT 1958 5 5. Directions concerning the person who is to record evidence 5 PART 4—GUARDIANSHIP AND ADMINISTRATION ACT 1986 6 6. Rehearings and reassessment of orders 6 7. New Division 1 of Part 6 inserted 6 Division 1—Rehearings 6 60A. Application for rehearing 6 60B. Parties and notice 7 60C. Rehearing 8 60D. Effect of first instance order pending rehearing 8 8. Reassessment of orders 8 9. New section 87 inserted 9 87. Rehearings and reassessments under Part 6 9 10. Miscellaneous amendments 10 11. Consequential amendment of Victorian Civil and Administrative Tribunal Act 1998 11 PART 5—JURIES ACT 2000 13 12. Extension of commencement date 13 -- 1 of 41 -- Section Page ii PART 6—SUPREME COURT ACT 1986 14 13. New Part 4A inserted 14 PART 4A—GROUP PROCEEDING 14 Division 1—Preliminary 14 33A. Definitions 14 33B. Application 15 Division 2—Commencement of Group Proceeding 15 33C. Commencement of proceeding 15 33D. Standing 16 33E. Consent of group member 17 33F. Persons under disability 18 33G. Representative proceeding not to be commenced in certain circumstances 18 33H. Originating process 18 33J. Right of group member to opt out 19 33K. Causes of action accruing after commencement 19 33KA. Court powers concerning group membership 20 33L. Fewer than seven group members 21 33M. Distribution costs excessive 21 33N. Proceeding not to continue under this Part 22 33P. Consequences of proceeding not continuing under this Part 23 33Q. Where not all questions common 23 33R. Individual questions 24 33S. Directions for further proceedings 24 33T. Adequacy of representation 24 33U. Stay of execution 25 33V. Settlement and discontinuance 25 33W. Settlement of individual claim 25 Division 3—Notices 26 33X. When notice to be given 26 33Y. Notices under section 33X 27 Division 4—Judgment, etc. 28 33Z. Judgment of the Court 28 33ZA. Constitution etc. of fund 29 33ZB. Effect of judgment 31 Division 5—Appeals 31 33ZC. Appeals 31 Division 6—Miscellaneous 33 -- 2 of 41 -- Section Page iii 33ZD. Costs 33 33ZE. Suspension of limitation periods 33 33ZF. General power of court to make orders 33 33ZG. Order may specify a date by which group members must take a step 34 33ZH. Order in event of decision or admission on liability 34 33ZJ. Reimbursement of plaintiff's costs 35 33ZK. Transitional provisions 35 14. Repeal of provisions relating to representative proceedings 36 15. New section 128A inserted 36 128A. Supreme Court—limitation of jurisdiction 36 16. New section 140 inserted 36 140. Transitional provision—Courts and Tribunals Legislation (Miscellaneous Amendments) Act 2000 36 ═══════════════ ENDNOTES 38 -- 3 of 41 -- 1 Courts and Tribunals Legislation (Miscellaneous Amendments) Act 2000† [Assented to 28 November 2000] The Parliament of Victoria enacts as follows: PART 1—PRELIMINARY 1. Purpose The purpose of this Act is— (a) to amend the Administration and Probate Act 1958 to allow grants of probate or administration to be authenticated in a prescribed manner; Victoria No. 78 of 2000 -- 4 of 41 -- Act No. 78/2000 Courts and Tribunals Legislation (Miscellaneous Amendments) Act 2000 2 (b) to amend the Evidence Act 1958 with respect to the recording and transcription of evidence; (c) to amend the Guardianship and Administration Act 1986 to provide for rehearings and reassessments of orders made under that Act and make minor amendments; (d) to extend the commencement date of the Juries Act 2000; (e) to amend the Supreme Court Act 1986 to make provision with respect to group proceedings. 2. Commencement (1) This Act (except section 13) comes into operation on the day on which it receives the Royal Assent. (2) Section 13 is deemed to have come into operation on 1 January 2000. _______________ s. 2 -- 5 of 41 -- Act No. 78/2000 Courts and Tribunals Legislation (Miscellaneous Amendments) Act 2000 3 PART 2—ADMINISTRATION AND PROBATE ACT 1958 3. Definition of Rules In section 3(1) of the Administration and Probate Act 1958 insert the following definition— ' "the Rules" means the Rules of Court made by the Judges of the Court whether made under powers conferred under this Act or otherwise;'. 4. Authentication of grants of probate and administration (1) In section 12 of the Administration and Probate Act 1958, after sub-section (1) insert— "(1A) The registrar may make a grant of probate or administration, other than in the manner set out in sub-section (1), by authenticating the order for the grant in a manner prescribed by the Rules.". (2) In section 12(3) of the Administration and Probate Act 1958— (a) after "seal of the Court" (where first occurring) insert "or authenticated in a manner prescribed by the Rules"; (b) for "whether made by the Court or the registrar shall be issued by the registrar in the name and under the seal of the Court" substitute ", if made by the Court, shall be issued by the registrar in the name and under the seal of the Court and, if made by the registrar, shall be issued by the registrar in the name and under the seal of the Court or See: Act No. 6191 Reprint No. 9 as at 1 August 1998 and amending Act No. 15/2000. LawToday: www.dms. dpc.vic. gov.au s. 3 -- 6 of 41 -- Act No. 78/2000 Courts and Tribunals Legislation (Miscellaneous Amendments) Act 2000 4 authenticated in a manner prescribed by the Rules". _______________ s. 4 -- 7 of 41 -- Act No. 78/2000 Courts and Tribunals Legislation (Miscellaneous Amendments) Act 2000 5 PART 3—EVIDENCE ACT 1958 5. Directions concerning the person who is to record evidence (1) In section 130(3) of the Evidence Act 1958, for "Where" substitute "Subject to sub-section (3A), if". (2) After section 130(3) of the Evidence Act 1958 insert— "(3A) If the Secretary to the Department of Justice has entered into an agreement with a person for the provision by that person of recording and transcription services to the court concerned, the evidence must be recorded and transcribed by or on behalf of that person unless a party to the legal proceeding shows grounds to the satisfaction of the person acting judicially in the proceeding that another person should record and transcribe the evidence and the person acting judicially so directs.". _______________ See: Act No. 6246 Reprint No. 13 as at 1 September 1999 and amending Act Nos 21/1999 and 26/1999. LawToday: www.dms. dpc.vic. gov.au s. 5 -- 8 of 41 -- Act No. 78/2000 Courts and Tribunals Legislation (Miscellaneous Amendments) Act 2000 6 PART 4—GUARDIANSHIP AND ADMINISTRATION ACT 1986 6. Rehearings and reassessment of orders In the Guardianship and Administration Act 1986— (a) in section 16(1)(b), for "review" substitute "rehearing or reassessment"; (b) in section 26(1A), for "review" substitute "reassess"; (c) in section 34(1), for "reviewing" substitute "reassessing"; (d) in the Heading to Part 6, for "REVIEWS" substitute "REHEARINGS AND REASSESSMENT". 7. New Division 1 of Part 6 inserted After the Heading to Part 6 of the Guardianship and Administration Act 1986 insert— "Division 1—Rehearings 60A. Application for rehearing (1) If the Tribunal makes an order in respect of an application under this Act (other than an interim order or a temporary order), a party or a person entitled to notice of the application may apply to the Tribunal for a rehearing of the application. (2) A person entitled to notice of the application who was not, or did not become, a party may apply for a rehearing only if the Tribunal gives leave. (3) Sub-section (2) does not apply to the Public Advocate. See: Act No. 58/1986 Reprint No. 5 as at 1 January 2000. LawToday: www.dms. dpc.vic. gov.au s. 6 -- 9 of 41 -- Act No. 78/2000 Courts and Tribunals Legislation (Miscellaneous Amendments) Act 2000 7 (4) An application for a rehearing, or for leave to apply for a rehearing, must be made within 28 days after the day of the order. (5) If the Tribunal gives oral reasons for making an order and a party then requests written reasons under section 117 of the Victorian Civil and Administrative Tribunal Act 1998, the day on which the written reasons are given to the party is deemed to be the day of the order for the purposes of sub-section (4). (6) A person cannot apply for a rehearing of— (a) an application the order in respect of which was made by the Tribunal constituted by the President, whether with or without others; or (b) an application under section 42B for the consent of the Tribunal to the carrying out of a special procedure, being a procedure carried out for the purposes of medical research; or (c) an application under section 42I or 42N to the Tribunal relating to medical or dental treatment (except an application in respect of which an order is made under section 42N(6)(b) appointing a guardian generally); or (d) an application for a rehearing or for leave to apply for a rehearing. 60B. Parties and notice (1) A party to the proceeding on an application under this Act is a party to a rehearing of the application under this Division, in addition to any other parties. s. 7 -- 10 of 41 -- Act No. 78/2000 Courts and Tribunals Legislation (Miscellaneous Amendments) Act 2000 8 (2) A person who was entitled to notice of the making of an application under this Act is entitled to notice of an application for a rehearing of the application under this Division. 60C. Rehearing (1) On an application under section 60A, the Tribunal must rehear the matter and, for that purpose, the Tribunal has all the functions and powers that the Tribunal had with respect to the matter at first instance. (2) In determining a rehearing, the Tribunal may— (a) affirm the order of the Tribunal at first instance; or (b) vary the order of the Tribunal at first instance; or (c) set aside the order of the Tribunal at first instance and make another order in substitution for it. 60D. Effect of first instance order pending rehearing (1) Subject to sub-section (2), the making of an application for a rehearing does not affect the operation of any order to which the application relates or prevent the taking of action to enforce the order. (2) The Tribunal may make an order staying the operation of an order pending the determination of the rehearing of the application to which the order relates.". 8. Reassessment of orders In the Guardianship and Administration Act 1986— s. 7 s. 8 -- 11 of 41 -- Act No. 78/2000 Courts and Tribunals Legislation (Miscellaneous Amendments) Act 2000 9 (a) before section 61 insert— "Division 2—Reassessment of Orders"; (b) in sections 61, 62 and 63, for "review" (wherever occurring) substitute "reassessment"; (c) in section 63F(1)— (i) for "reviewed" substitute "reassessed"; (ii) for "Part 6" substitute "Division 2 of Part 6"; (d) in section 63F(2), for "Part 6" substitute "Division 2 of Part 6". 9. New section 87 inserted After section 86 of the Guardianship and Administration Act 1986 insert— "87. Rehearings and reassessments under Part 6 (1) Division 1 of Part 6 (rehearings) applies to any application to the Tribunal that is made after the commencement of section 7 of the Courts and Tribunals Legislation (Miscellaneous Amendments) Act 2000. (2) Division 2 of Part 6 (reassessments) applies to an order of the Tribunal whether made before or after the commencement of section 8 of the Courts and Tribunals Legislation (Miscellaneous Amendments) Act 2000. (3) A review under section 61 as in force immediately before the commencement of section 8 of the Courts and Tribunals Legislation (Miscellaneous Amendments) Act 2000 that was pending immediately -- 12 of 41 -- Act No. 78/2000 Courts and Tribunals Legislation (Miscellaneous Amendments) Act 2000 10 before that commencement may be completed under Division 2 of Part 6 as if it were a reassessment.". 10. Miscellaneous amendments (1) In section 42D of the Guardianship and Administration Act 1986, for "14 days" substitute "30 days". (2) In Schedule 4 to the Guardianship and Administration Act 1986— (a) in Form 1— (i) in clause 2, for "permanent and long term disability" substitute "disability"; (ii) for— ".................................................... (Signature of appointor)" substitute— "........................................ (Signature of appointor) ............... (date)"; (iii) for— ".................................................... (Signature of proposed guardian)" substitute— ".................................................. (Signature of proposed guardian) ............... (date)"; (iv) for— "...................................................................... (Signature of witness authorised to witness the signing of statutory declarations) ....................................................................... s. 10 -- 13 of 41 -- Act No. 78/2000 Courts and Tribunals Legislation (Miscellaneous Amendments) Act 2000 11 (Signature of other witness)" substitute— "........................................................ (Signature of witness authorised to witness the signing of statutory declarations) ........... (date) ......................................................... (Signature of other witness) ........... (date)"; (b) in Form 2— (i) for— ".................................................... (Signature of appointor)" substitute— "................................................ (Signature of appointor) ........... (date)"; (ii) for— "........................................................................ (Signature of witness authorised to witness the signing of statutory declarations) ......................................................................... (Signature of other witness)" substitute— "........................................................ (Signature of witness authorised to witness the signing of statutory declarations) ........... (date) ......................................................... (Signature of other witness) ........... (date)". 11. Consequential amendment of Victorian Civil and Administrative Tribunal Act 1998 (1) In the Victorian Civil and Administrative Tribunal Act 1998— s. 10 s. 11 -- 14 of 41 -- Act No. 78/2000 Courts and Tribunals Legislation (Miscellaneous Amendments) Act 2000 12 (a) in section 3, in the definition of "proceeding", at the end of paragraph (c) insert— "; or (d) a rehearing or reassessment under Part 6 of the Guardianship and Administration Act 1986—"; (b) in section 42(2), for "section 61" substitute "Part 6". (2) In Schedule 1 to the Victorian Civil and Administrative Tribunal Act 1998, after clause 31(2) insert— "(3) The Tribunal is to be constituted for the purposes of a rehearing under Division 1 of Part 6 of the Guardianship and Administration Act 1986 by— (a) a senior member, if the order at first instance was made by the Tribunal constituted by an ordinary member; (b) a presidential member, if the order at first instance was made by the Tribunal constituted by a senior member; (c) a judicial member, if the order at first instance was made by the Tribunal constituted by a Deputy President; (d) a Vice-President, if the order at first instance was made by the Tribunal constituted by more than one member (except where one or more of the members was a Vice President); (e) the President, if the order at first instance was made by the Tribunal constituted by a Vice President (whether with or without others).". _______________ -- 15 of 41 -- Act No. 78/2000 Courts and Tribunals Legislation (Miscellaneous Amendments) Act 2000 13 PART 5—JURIES ACT 2000 12. Extension of commencement date In section 2(3) of the Juries Act 2000, for "1 January 2001" substitute "1 August 2001". _______________ s. 12 -- 16 of 41 -- Act No. 78/2000 Courts and Tribunals Legislation (Miscellaneous Amendments) Act 2000 14 PART 6—SUPREME COURT ACT 1986 13. New Part 4A inserted After Part 4 of the Supreme Court Act 1986 insert— 'PART 4A—GROUP PROCEEDING Division 1—Preliminary 33A. Definitions In this Part— "Chapter I of the Rules" means the Supreme Court (General Civil Procedure) Rules 1996; "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 this Part; "handicapped person" means a person who is incapable by reason of injury, disease, senility, illness or physical or mental infirmity of managing his or her affairs in relation to the proceeding; "person under disability" means a minor or handicapped person; "plaintiff" means a person who commences a group proceeding as a representative party or a person who is substituted under section 33T(1) or 33W(3); s. 13 See: Act No. 110/1986 Reprint No. 3 as at 1 August 1998 and amending Act No 10/1999. LawToday: www.dms. dpc.vic. gov.au -- 17 of 41 -- Act No. 78/2000 Courts and Tribunals Legislation (Miscellaneous Amendments) Act 2000 15 "sub-group member" means a person included in a sub-group established under section 33Q; "sub-group representative party" means a person appointed to be a sub-group representative party under section 33Q. 33B. Application (1) This Part applies to a cause of action whether arising before or on or after 1 January 2000. (2) This Part does not apply to— (a) a proceeding under sections 34 and 35 of the Act; or (b) a proceeding concerning— (i) the administration of the estate of a deceased person; or (ii) property subject to a trust; or (c) a proceeding commenced under Order 18 of Chapter I of the Rules. Division 2—Commencement of Group Proceeding 33C. Commencement of proceeding (1) Subject to this Part, if— (a) seven or more persons have claims against the same person; and (b) the claims of all those persons are in respect of, or arise out of, the same, similar or related circumstances; and s. 13 -- 18 of 41 -- Act No. 78/2000 Courts and Tribunals Legislation (Miscellaneous Amendments) Act 2000 16 (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 (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. 33D. Standing (1) A person referred to in paragraph (a) of section 33C(1) who has a sufficient interest to commence a proceeding on the person's own behalf against another person has a sufficient interest to commence a group proceeding against that other person on s. 13 -- 19 of 41 -- Act No. 78/2000 Courts and Tribunals Legislation (Miscellaneous Amendments) Act 2000 17 behalf of other persons referred to in that paragraph. (2) If a person has commenced a group proceeding, that person retains a sufficient interest— (a) to continue the proceeding; and (b) to bring an appeal from a judgment in the proceeding— even though the person ceases to have a claim against the defendant. 33E. Consent of group member (1) Subject to sub-section (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 consent in writing to being so— (a) the Commonwealth, a State or a Territory; or (b) a Minister of the Commonwealth, a State or a Territory; or (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; or (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. s. 13 -- 20 of 41 -- Act No. 78/2000 Courts and Tribunals Legislation (Miscellaneous Amendments) Act 2000 18 33F. Persons under disability (1) It is not necessary for a person under disability to have a litigation guardian merely in order to be a group member. (2) A group member who is a person under disability may only take a step in the group proceeding, or conduct part of the proceeding, by the group member's litigation guardian. 33G. Representative proceeding not to be commenced in certain circumstances A representative proceeding may not be commenced if the proceeding would be concerned only with claims in respect of which the Court has jurisdiction solely by virtue of the Jurisdiction of Courts (Cross- vesting) Act 1987 or a corresponding law of the Commonwealth or another State or a Territory. 33H. Originating process (1) A group proceeding must be commenced by writ. (2) The indorsement on the writ must, in addition to any other matters required by the Rules to be included— (a) describe or otherwise identify the group members to whom the proceeding relates; and (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. s. 13 -- 21 of 41 -- Act No. 78/2000 Courts and Tribunals Legislation (Miscellaneous Amendments) Act 2000 19 (3) In describing or otherwise identifying group members for the purposes of sub-section (2), it is not necessary to name, or specify the number of, the group members. 33J. Right of group member to opt out (1) The Court must 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 notice in writing 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 must not commence earlier than the date before which a group member may opt out of the proceeding. (5) Unless the Court otherwise orders, a person who has opted out of a group proceeding must be taken never to have been a group member. (6) 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. 33K. 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. s. 13 -- 22 of 41 -- Act No. 78/2000 Courts and Tribunals Legislation (Miscellaneous Amendments) Act 2000 20 (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 group, if the cause of action had accrued before the commencement of the proceeding. (3) The date mentioned in sub-section (2)(a) may be the date on which leave is given or another date before or after that date. (4) If the Court gives leave under sub-section (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. 33KA. Court powers concerning group membership (1) On the application of a party to a group proceeding or of its own motion, the Court may at any time, whether before or after judgment, order— (a) that a person cease to be a group member; (b) that a person not become a group member. (2) The Court may make an order under sub- section (1) if of the opinion that— s. 13 -- 23 of 41 -- Act No. 78/2000 Courts and Tribunals Legislation (Miscellaneous Amendments) Act 2000 21 (a) the person does not have sufficient connection with Australia to justify inclusion as a group member; or (b) for any other reason it is just or expedient that the person should not be or should not become a group member. (3) If the Court orders that a person cease to be a group member, then, if the Court so orders, the person must be taken never to have been a group member. 33L. Fewer than seven group members If, at any stage of a group proceeding, it appears likely to the Court that there are fewer than 7 group members, the Court may order, on such conditions (if any) as it thinks fit— (a) that the proceeding continue under this Part; or (b) that the proceeding no longer continue under this Part. 33M. Distribution costs excessive If— (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 identifying the group members and distributing to them the amounts ordered to be paid to them would be s. 13 -- 24 of 41 -- Act No. 78/2000 Courts and Tribunals Legislation (Miscellaneous Amendments) Act 2000 22 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 Part; or (d) stay the proceeding so far as it relates to relief of the kind mentioned in paragraph (a). 33N. Proceeding not to continue under this Part (1) The Court may, on application by the defendant, order that a proceeding no longer continue under this Part if 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. (2) If the Court dismisses an application under this section, the Court may order that no further application under this section be s. 13 -- 25 of 41 -- Act No. 78/2000 Courts and Tribunals Legislation (Miscellaneous Amendments) Act 2000 23 made by the defendant except with the leave of the Court. (3) Leave for the purposes of sub-section (2) may be granted subject to such conditions as to costs as the Court thinks fit. 33P. Consequences of proceeding not continuing under this Part If the Court makes an order under section 33L, 33M or 33N that a proceeding no longer continue under this Part— (a) the proceeding may be continued as a proceeding by the plaintiff on the plaintiff's 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. 33Q. 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. s. 13 -- 26 of 41 -- Act No. 78/2000 Courts and Tribunals Legislation (Miscellaneous Amendments) Act 2000 24 (3) If 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. 33R. Individual questions (1) In giving directions under section 33Q, 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. 33S. Directions for further proceedings If a question cannot properly or conveniently be dealt with under section 33Q or 33R, the Court may give directions for the commencement and conduct of another proceeding, whether or not a group proceeding. 33T. 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 s. 13 -- 27 of 41 -- Act No. 78/2000 Courts and Tribunals Legislation (Miscellaneous Amendments) Act 2000 25 members, the Court may substitute another person as sub-group representative party and may make such other orders as it thinks fit. 33U. Stay of execution If 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. 33V. 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. 33W. Settlement of individual claim (1) The plaintiff may, with the leave of the Court, settle the plaintiff's 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 the person's individual claim in whole or in part cease to be plaintiff. (3) If an order is sought under sub-section (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. s. 13 -- 28 of 41 -- Act No. 78/2000 Courts and Tribunals Legislation (Miscellaneous Amendments) Act 2000 26 (4) An order must not be made under sub- section (2) unless the Court is satisfied that— (a) notice of application for the order has been given to group members in accordance with section 33X(1); and (b) such notice was given in sufficient time for an application to be made for an order under sub-section (3); and (c) an order under sub-section (3) has been or will be made. (5) The Court may make an order under sub- section (2) or (3) on such terms and conditions, as to costs or otherwise, as the Court thinks fit. Division 3—Notices 33X. When notice to be given (1) Notice must 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 section 33J(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 section 33W. (2) The Court may dispense with compliance with any or all of the requirements of sub- section (1) if the relief sought in a s. 13 -- 29 of 41 -- Act No. 78/2000 Courts and Tribunals Legislation (Miscellaneous Amendments) Act 2000 27 proceeding does not include any claim for damages. (3) If the Court so orders, notice must be given to group members of any offer to compromise the proceeding. (4) Unless the Court is satisfied that it is just to do so, an application for approval under section 33V must 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 section must be given as soon as practicable after the happening of the event to which the notice relates. 33Y. Notices under section 33X (1) The form and content of a notice under section 33X must be approved by the Court. (2) The Court must, 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 sub-section (2) may require that notice be given by means of press advertisement, radio or television broadcast, or by any other means. (4) The Court must not order that notice be given personally to each group member s. 13 -- 30 of 41 -- Act No. 78/2000 Courts and Tribunals Legislation (Miscellaneous Amendments) Act 2000 28 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 must specify the period within which a group member or 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 must 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. Division 4—Judgment, etc. 33Z. 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 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; s. 13 -- 31 of 41 -- Act No. 78/2000 Courts and Tribunals Legislation (Miscellaneous Amendments) Act 2000 29 (g) make such other order as is just, including, but not restricted to, an order for monetary relief other than for damages and an order for non- pecuniary damages. (2) In making an order for an award of damages, or monetary relief the Court must make provision for the payment or distribution of the money to the group members entitled. (3) Subject to section 33V, the Court must not make an award of damages under sub- section (1)(f) or monetary relief under sub- section (1)(g) unless a reasonably accurate assessment can be made of the total amount to which group members will be entitled under the judgment. (4) If 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 the member's 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. 33ZA. Constitution etc. of fund (1) Without limiting the operation of section 33Z(2), in making provision for the distribution of money to group members, the Court may provide for— (a) the constitution and administration of a fund consisting of the money to be distributed; and s. 13 -- 32 of 41 -- Act No. 78/2000 Courts and Tribunals Legislation (Miscellaneous Amendments) Act 2000 30 (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) If the Court orders the constitution of a fund mentioned in sub-section (1), the order must— (a) require notice to be given to group members in such manner as is specified in the order; and (b) specify the manner in which a group member is to make a claim for payment out of the fund and establish the group member's entitlement to the payment; and (c) specify a day (which is 6 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 distributed to group members who have established an entitlement to be paid out of the fund. s. 13 -- 33 of 41 -- Act No. 78/2000 Courts and Tribunals Legislation (Miscellaneous Amendments) Act 2000 31 (4) The Court may, if it is just, allow a group member to make a claim after the day fixed under sub-section (3)(c) if the fund has not already been fully distributed. (5) On application by the defendant after the day fixed under sub-section (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. 33ZB. Effect of judgment A judgment given in a group proceeding— (a) must describe or otherwise identify the group members who will be affected by it; and (b) subject to section 33KA, binds all persons who are such group members at the time the judgment is given. Division 5—Appeals 33ZC. 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 s. 13 -- 34 of 41 -- Act No. 78/2000 Courts and Tribunals Legislation (Miscellaneous Amendments) Act 2000 32 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 sub-section (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) If 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) Section 33J does not apply to an appeal. s. 13 -- 35 of 41 -- Act No. 78/2000 Courts and Tribunals Legislation (Miscellaneous Amendments) Act 2000 33 (8) The notice of appeal must 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. Division 6—Miscellaneous 33ZD. Costs In a group proceeding, the Court— (a) may order the plaintiff or the defendant to pay costs; (b) except as authorised by section 33Q or 33R, may not order a group member or a sub-group member to pay costs. 33ZE. Suspension of limitation periods (1) Upon the commencement of a group proceeding, the running of any limitation period that applies to the claim of a group member to which the proceeding relates is suspended. (2) The limitation period does not begin to run again unless either the member opts out of the proceeding under section 33J or the proceeding, and any appeals arising from the proceeding, are determined without finally disposing of the group member's claim. 33ZF. General power of court to make orders In any proceeding (including an appeal) conducted under this Part the Court may, of its own motion or on application by a party, make any order the Court thinks appropriate or necessary to ensure that justice is done in the proceeding. s. 13 -- 36 of 41 -- Act No. 78/2000 Courts and Tribunals Legislation (Miscellaneous Amendments) Act 2000 34 33ZG. Order may specify a date by which group members must take a step Without limiting the operation of section 33ZF, an order made under that section may— (a) set out a step that group members or a specified class of group members must take to be entitled to— (i) any relief under section 33Z; or (ii) any payment out of a fund constituted under section 33ZA; or (iii) obtain any other benefit arising out of the proceeding— irrespective of whether the Court has made a decision on liability or there has been an admission by the defendant on liability; (b) specify a date after which, if the step referred to in paragraph (a) has not been taken by a group member to whom the order applies, the group member is not entitled to any relief or payment or to obtain any other benefit referred to in that paragraph. 33ZH. Order in event of decision or admission on liability (1) Without limiting the operation of sections 33ZF and 33ZG, if the Court has made a decision on liability or there has been an admission by the defendant on liability, an order made under section 33ZF may require notice of that decision or admission to be s. 13 -- 37 of 41 -- Act No. 78/2000 Courts and Tribunals Legislation (Miscellaneous Amendments) Act 2000 35 given to group members or a specified class of group members. (2) Subject to sub-section (3), the form and content of the notice must be approved by the Court. (3) If the Court has made an order of a kind referred to in section 33ZG, the notice must set out the effect of the order. (4) An order under section 33ZF may require that a notice referred to in this section be given by means of press advertisement, radio or television broadcast, or by any other means. 33ZJ. Reimbursement of plaintiff's costs (1) If 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 section. (2) If, on an application under this section, 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. 33ZK. Transitional provisions A proceeding commenced under Rule 18A.03 of Chapter I of the Rules on or after 1 January 2000 and before the passing of the Courts and Tribunals Legislation (Miscellaneous Amendments) Act 2000 s. 13 -- 38 of 41 -- Act No. 78/2000 Courts and Tribunals Legislation (Miscellaneous Amendments) Act 2000 36 must be taken for all purposes to have been commenced under this Part on the day on which it was commenced under that Rule.'. 14. Repeal of provisions relating to representative proceedings Sections 34 and 35 of the Supreme Court Act 1986 are repealed. 15. New section 128A inserted After section 128 of the Supreme Court Act 1986 insert— "128A. Supreme Court—limitation of jurisdiction It is the intention of section 33ZD(b) of this Act and section 14 of the Courts and Tribunals Legislation (Miscellaneous Amendments) Act 2000 to alter or vary section 85 of the Constitution Act 1975.". 16. New section 140 inserted After section 139A of the Supreme Court Act 1986 insert— "140. Transitional provision—Courts and Tribunals Legislation (Miscellaneous Amendments) Act 2000 Without limiting section 14 of the Interpretation of Legislation Act 1984, the repeal of sections 34 and 35 of this Act by section 14 of the Courts and Tribunals Legislation (Miscellaneous Amendments) Act 2000 has no effect on a proceeding under those sections commenced before that repeal and not yet finally determined immediately before that repeal and any such proceeding may be continued in all respects as if those sections had not been repealed.". ═══════════════ s. 14 -- 39 of 41 -- Act No. 78/2000 Courts and Tribunals Legislation (Miscellaneous Amendments) Act 2000 37 s. 16 -- 40 of 41 -- Act No. 78/2000 Courts and Tribunals Legislation (Miscellaneous Amendments) Act 2000 38 ENDNOTES † Minister's second reading speech— Legislative Council: 4 October 2000 Legislative Assembly: 31 October 2000 The long title for the Bill for this Act was "to amend the Administration and Probate Act 1958, the Evidence Act 1958, the Guardianship and Administration Act 1986, the Juries Act 2000 and the Supreme Court Act 1986 and for other purposes." Constitution Act 1975: Section 85(5) statement: Legislative Council: 4 October 2000 Legislative Assembly: 31 October 2000 Absolute majorities: Legislative Council: 26 October 2000 Legislative Assembly: 21 November 2000 Endnotes -- 41 of 41 --