Civil Trials Bench Book — Procedure generally

Part 7 of the UCPR applies to all courts except that Div 2, dealing with representative actions, and Div 6, dealing with relators, does not apply to the Small Claims Division of the Local Court.

Part 10 of the CPA concerning representative proceedings in the Supreme Court commenced operation on 4 March 2011.

A natural person may commence and carry on proceedings in any court, either by a solicitor acting on his or her behalf or in person: r 7.1. Where proceedings are commenced by a natural person on behalf of another person pursuant to a power of attorney, the court may order that the proceedings be carried on, on behalf of that other person, by a solicitor: r 7.1(1A). A solicitor on the record must hold an unrestricted practising certificate: r 7.1(6).

As to a litigant in person see “Unrepresented litigants and lay advisers” at [1-0800].

A company within the meaning of the Corporations Act 2001 (Cth) may commence and carry on proceedings in any court by a solicitor or by a director of the company and may commence and, unless the court orders otherwise, carry on proceedings in a Local Court by a duly authorised officer or employee of the company: r 7.2.

Rule 7.2 is qualified by the provision in r 7.3 that, in the case of the Supreme Court, commencement by a director is only authorised if the director is also a plaintiff in the proceedings.

A corporation, other than a company within the meaning of the Corporations Act 2001 (Cth), may commence and carry on proceedings in any court by a solicitor. In any court, other than a Local Court, by a duly authorised officer of the corporation; and may commence and, unless the court orders otherwise, carry on proceedings in a Local Court by a duly authorised officer or employee of the corporation: r 7.1(4).

See r 7.1(5) as to provisions applicable in the Local Court permitting specified proceedings to be commenced, and unless the court otherwise orders, carried on by specified persons.

A person who commences or carries on proceedings in the Supreme Court or District Court as the director of a company within the meaning of the Corporations Act 2001 (Cth) or as the authorised officer of a corporation not being such a company, must file with the originating process, notice of appearance or defence, an affidavit of his or her authority to act in that capacity, together with a copy of the instrument evidencing that authority: r 7.2(1).

The requirements of the respective affidavits are set out in r 7.2(1) and (3). A significant feature of those requirements is that the director or officer acknowledge that he or she may be liable to pay some or all of the costs of the proceedings: r 7.2(2)(iv), (3)(iv).

A subpoena may not be issued, except by leave of the court, unless the party at whose request the subpoena is issued is represented by a solicitor in the proceedings: r 7.3(1). Leave may be given generally or in relation to a particular subpoena or subpoenas: r 7.3(2). A subpoena may not be issued in relation to proceedings in the Small Claims Division of the Local Court except by the leave of the court: r 7.3(3).

General

Following amendments to the CPA in 2011, a new regime which echoed the provisions of Pt IVA of the Federal Court of Australia Act 1976 (Cth) was enacted. (See Supreme Court Practice Note, No SC Gen 17, concerning representative proceedings, commenced 31 July 2017). Part 58 of the UCPR was inserted to make provision for opt out notice requirements together with Form 115, which may be downloaded from the Supreme Court website.

Part 10 permits the commencement of proceedings by a representative party and does not provide for the appointment of a representative party for defendants or respondents. However, the Supreme Court has jurisdiction to make such representative orders: Ahmed v Choudbury [2012] NSWSC 1452 and Burwood Council v Ralan Burwood Pty Ltd (No 2) [2014] NSWCA 179.

Claims under industrial awards

While an application “under” Pt 2 of Ch 7 of the Industrial Relations Act 1996 cannot be commenced or maintained on behalf of group members, proceedings under Pt 10 of the CPA can be commenced and maintained seeking relief in respect of any statutory debt that arises in favour of group members in respect of their award entitlements: Fakhouri v The Secretary for the NSW Ministry of Health [2022] NSWSC 233 at [1], [51].

Commencement of representative proceedings

Proceedings can be commenced in the Supreme Court by seven or more people who have claims against the same person or persons. The claims must arise out of the same, similar or related circumstances and the claims must give rise to “ … a substantial common question of law or fact …”: s 157(1). There is no basis to construe this phrase narrowly. A question can be common even if different evidence is adduced in respect of each aspect of the claim: Nguyen v Rickhuss [2023] NSWCA 249 at [27].

The person who commences the proceedings, known as the representative party, must have standing to commence representative proceedings on behalf of other persons. It is sufficient if the representative party has standing to commence proceedings on his or her own behalf: s 158(1).

A person may commence proceedings against more than one defendant. This can occur irrespective of whether or not the representative plaintiff, or each group member, has a claim against every defendant in the proceedings: s 158(2). This provision overcomes a contrary view expressed in Philip Morris (Australia) Ltd v Nixon [2000] FCA 229, in relation to Pt IVA.

Consent of a person to be a group member is not required unless he or she is a Minister or an officer of the Commonwealth, a State or a Territory. An incorporated company or association does not require to give consent, however, consent is required if the proposed group member is the Commonwealth, a State, Territory or a body corporate established for a public purpose by a Commonwealth, State or Territory law: s 159.

The originating process must describe or otherwise identify the group members, specify the nature of the claims and the relief claimed, and the question of law or facts common to the claims. It is not necessary to name or specify the number of the group members: s 161.

It is not inappropriate for representative proceedings to be brought on behalf of a limited group which does not include all possible claimants: s 166(2). As to the framing of group definitions, see Petrusevski v Bulldogs Rugby League Ltd [2003] FCA 61, per Sackville J at [19]-[23].

Specification of one or more substantial common questions of fact or law in the originating process is important. These common questions provide the backbone of the proceedings and “careful compliance” is “of the greatest importance”, per Lindgren J in Bright v Femcare Ltd [2002] FCAFC 243 at [14].

Group members are given the option to opt out of representative proceedings in the Court: s 162. Part 58 of the UCPR provides that the opt out notice must be filed and served on the representative party in the approved form (see Form 115). The form specifies that the potential group member understands that he or she forgoes the right to share in any relief obtained by the representative party in the representative proceedings and will not be entitled to receive any further notification about the conduct or disposition of the proceedings, and, to the extent he or she has a claim against the defendant/s, any limitation period suspended by the commencement of the representative proceedings has recommenced to run.

Within 14 days after the opt out date, that is the date fixed by the court before which a group member may opt out, the representative party must provide to the other parties a list of the persons who have opted out: UCPR r 58.2(2).

If, at any stage of the proceedings, it appears likely to the court that there are fewer than seven group members, the court may, on such conditions as it thinks fit, order that the proceedings continue under Pt 10 or order that they no longer do so: s 164.

The court may, on application by the defendant or of its own motion, order that proceedings no longer continue under Pt 10 if it is satisfied that it is in the interests of justice to do so upon one or more of the grounds set out in the section: s 166(1). As to the ground of “inappropriateness”, see Multiplex Funds Management Ltd v P Dawson Nominees Pty Ltd (2007) 164 FCR 275: s 166(2).

If the court orders proceedings not to continue under Pt 10, they may continue as proceedings by a representative party on its own behalf. The court may order that a group member be joined as an applicant in those proceedings: s 167(1).

Where it appears to the court that determination of the question or questions common to all group members will not finally determine the claims of a group member, the court may give direction in relation to the determination of the remaining questions: s 168(1). A sub-group may be established and a sub-group representative party appointed: s 168(2). The court may permit an individual group member to appear in the proceedings for the purpose of determining a question that relates only to that member’s claims: s 169(1).

Case management of representative proceedings

The representative proceedings are case managed by a judge of the Division in which they are commenced. (See [2-0000]ff as to case management.)

The management of representative proceedings is discussed in Merck Sharp and Dohme (Aust) Pty Ltd v Peterson [2009] FCAFC 26 at [4]–[10] and in Bright v Femcare Ltd [2002] FCAFC 243 at [160].

In circumstances where an initial hearing will not determine all claims of all group members, it is appropriate to identify, in advance of the hearing, for reasons, at least, of procedural fairness, the questions which appear to be common from a consideration of the pleadings, and, where relevant, evidence which it is intended to adduce. This procedure involves making what are known as “Merck Orders”: Merck at [4]–[10]; Dillon v RBS Group (Australia) Pty Ltd [2017] FCA 896 at [66] and Richmond Valley Council v JLT Risk Solutions Pty Ltd [2021] NSWSC 383.

When formulating questions by way of Merck Orders, it is not necessary for those questions to fall within the constraint of a “substantial common question of fact or law” as that phrase is used in s 157(1)(c) of the CPA: Moussa v Camden Council (No 5) [2023] NSWSC 1135 at [55]–[57]; see also Scenic Tours Pty Ltd v Moore [2018] NSWCA 238 at [409].

Finklestein J, in Bright v Femcare, above, observed at [160]:

See also Giles v Commonwealth of Australia [2014] NSWSC 83 and Wigmans v AMP Ltd [2021] HCA 7 at [116].

Settlement/discontinuation of proceedings

Representative proceedings may not be settled or discontinued without leave of the court: s 173(1). The court may make orders as to the distribution of settlement moneys: s 173(2). The court’s approval under s 173 is a discretionary decision, and therefore can only be disturbed if a House v The King error^[1] is established: Augusta Pool 1 UK Ltd v Williamson (2023) 111 NSWLR 378 at [2], [9]–[10], [76]. As to settlement offers to group members, see Courtney v Medtel Pty Ltd [2002] FCA 957, per Sackville J at [64]. For a detailed discussion concerning the fairness and reasonableness of an overall settlement sum, see Darwalla Milling Co Pty Ltd v F Hoffman-La Roche (No 2) [2006] FCA 1388 at [42]–[64]. The central question for the court is whether the proposed settlement is fair and reasonable in the interests of the group members considered as a whole. The court’s role in relation to group members is supervisory and protective, analogous to that which it assumes when approving settlements on behalf of persons with a disability: Findlay v DSHE Holdings Ltd [2021] NSWSC 249 at [12]–[14]. See also Ellis v Commonwealth [2023] NSWSC 550 at [7], [17]–[18]. Cases decided under the equivalent s 33V Federal Court of Australia Act 1976 (Cth) include: Williams v FAI Home Security Pty Ltd (No 4) [2000] FCA 1925 at [19]; Kelly v Willmott Forests Ltd (in liq) (No 4) [2016] FCA 323 at [62]; Court v Spotless Group Holdings Ltd [2020] FCA 1730 at [8].

With the leave of the court, a representative party may settle their own claim at any stage of the representative proceedings: s 174(1). They may, with leave, withdraw as a representative party: s 174(2). By order, another group can be established: s 174(3). Before granting leave to withdraw as a representative party, the court must be satisfied that notice has been given to group members, that the notice was given in sufficient time for them to apply for another person to be substituted, and that any application for substitution has been determined: s 174(4).

Parallel representative proceedings in relation to the same controversy

There is no provision in Pt 10, CPA that expressly or impliedly prevents the filing of a second representative proceeding against a defendant in relation to a controversy. Where seven or more persons have claims against the same person, and the conditions in s 157(1)(b) and (c) are met, s 157 permits “one or more” of those persons to commence proceedings representing some or all of them. Provisions in Pt 10, such as ss 171 and 162, do not detract from the Supreme Court’s power under s 67 to stay competing representative proceedings or impose any limitations: Wigmans v AMP Ltd [2021] HCA 7 at [78].

The Supreme Court’s power to grant a stay under s  67 CPA of competing representative proceedings is not confined by a rule or presumption that the proceeding filed first in time is to be preferred. There is no “one size fits all” approach. In matters involving competing open class representative proceedings with several firms of solicitors and different funding models, where the interests of the defendant are not differentially affected, it is necessary for the court to determine which proceeding going ahead would be in the best interests of group members. The factors that might be relevant cannot be exhaustively listed and will vary from case to case: Wigmans v AMP Ltd [2021] HCA 7 at [52].

Notices

Part 10, Div 3 concerns notices. Section 175 provides for notices that must be given in representative proceedings. Generally, the court has a wide power to order that notice of any matter be given to the group or individual members: s 175(5). The court must be clear who is to give the notice and the way in which the notice is to be given: s 176(2). Any conditions and compliance periods must also be clearly specified in the order. Pursuant to s 175(6), notices must be given as soon as practicable after the happening of the event to which it relates.

Specifically, notices must be given for the following:

The court has the power to dispense with compliance if the relief sought in the proceedings does not include any claim for damages (s 175(2)) or it may order that the notice includes a direction to a party to provide information relevant to the giving of the notice and relating to the costs of giving notice: s 176(3).

The court may also order that notice be given in the media, for example by means of press advertisement, radio or television broadcast: s 176(4). This may be particularly useful if the court is “not confident all the group members were known by name, and so could be notified by letter”: McMullin v ICI Australia Operations Pty Ltd (No 6) (1998) 84 FCR 1 at 260, per Wilcox J. The court may not order that notice be given personally to each group member unless it is satisfied that it is reasonably practical and not unduly expensive, to do so: s 176(5).

Powers of the Court

In determining a matter in representative proceedings, pursuant to s 177(1), the court has the power to:

In making an award of damages, the court must make provision for the payment or distribution of the money to the group members entitled: s 177(2).

The court may provide for the constitution and administration of a fund: s 178. The court may give directions as it thinks just in relation to the manner in which a member’s entitlement to damages is established and how to determine any disputes concerning that member’s entitlement: s 177(4).

If a group member does not make a claim within the set timeframe, the court may allow his or her claim, taking into account such factors as whether it is just to do so or if the fund has not already been fully distributed: s 178(4). The defendant may apply to the court for an order to receive any money remaining in the fund: s 178(5).

The court may, of its own motion or on application by a party or a group member, make any order that the court thinks appropriate or necessary to ensure that justice is done in the proceedings: s 183. However, s 183 is not a plenary power “at large” and is not a power conferred on the Supreme Court simply to make such orders “as the court thinks fit” or which are “in the interests of justice” or which will promote or facilitate settlement: Haselhurst v Toyota Motor Corporation Australia Ltd t/as Toyota Australia [2020] NSWCA 66 at [4]. Section 183 (and the identical s 33ZF of the Federal Court of Australia Act 1976) cannot be given a more expansive construction and a wider scope of operation than the other provisions of the scheme. To do so would be to use ss 183 and 33ZF as a vehicle for rewriting the scheme of the legislation: BMW Australia Ltd v Brewster [2019] HCA 45 at [70].

A majority of the High Court in BMW Australia Ltd v Brewster held that s 183, properly construed, does not empower a court to make a common fund order. Sections 183 and 33ZF empower the making of orders as to how an action should proceed in order to do justice; they are not concerned with the radically different question as to whether an action can proceed at all: at [3]. It is one thing for a court to make an order to ensure that the proceeding is brought fairly and effectively to a just outcome; it is another thing for a court to make an order in favour of a third party with a view to encouraging it to support the pursuit of the proceeding, especially where the merits of the claims in the proceeding are to be decided by that court: at [47], [49].

In related litigation in Haselhurst v Toyota Motor Corporation Australia Ltd t/as Toyota Australia, a five-judge bench of the Court of Appeal held that an order for “class closure” which in effect destroyed a person’s cause of action within the limitation period, without a hearing and with no guarantee that the person would necessarily know of the outcome or consequence of their failure to register, was not an order that was “necessary to ensure that justice is done in the proceedings” or “appropriate … to ensure that justice is done in the proceedings”: at [12] The court held that he scheme of Pt 10 of the CPA is inconsistent with an interpretation of s 183 which empowered the Supreme Court to make an order effecting “class closure”. In so finding, the Court of Appeal analysed and followed the construction of Pt 10 of the Civil Liability Act preferred by the majority of the High Court in BMW Australia Ltd v Brewster: at [99]. See also Wigmans v AMP (2020) 102 NSWLR 199.

If the court makes an award of damages, the representative party may apply for reimbursement of the representative party’s costs: s 184. The court must be satisfied that the costs, reasonably incurred in relation to the representative proceedings, are likely to exceed the costs recoverable from the defendant. In this case, 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. The court may also make any other order that it thinks just.

Pursuant to s 179, a judgment given in representative proceedings must describe or otherwise identify the group members who will be affected by it and bind them, other than those who have chosen to opt out of the proceedings.

Appeals

Under Pt 10, Div 5, appeals can be brought before the Court of Appeal by the group or sub-group’s representative in respect of the judgment to the extent that it relates to questions common to the group or sub-group’s claims: s 180(1). The parties to an appeal which relates only to the claim of any individual group member are that group member and the defendant: s 180(2). If the representative party does not bring an appeal within the time provided for instituting appeals, another group member may bring an appeal within 21 days: s 180(3). The court may direct to whom and how a notice of appeal should be given: s 180(4). The notice instituting an appeal must describe or identify the members of the group or sub-group but not necessarily the number or the names of those members: s 180(5).

Where a person or class of persons is, or may be interested in, or affected by proceedings, the court may appoint one or more of those persons to represent any one or more of them, provided that those proceedings concern the administration of a deceased person’s estate, property subject to a trust or the construction of an Act, instrument or other document: r 7.6(1).

A person cannot be so appointed unless the court is satisfied that the person or a class, or a member of a class cannot, or cannot readily, be ascertained or, if ascertained, cannot be found or, if ascertained and found, it is expedient for the purpose of saving expense for a representative to be appointed to represent any one or more of them: r 7.6(2).

A person may be treated as having an interest or liability for the purpose of this rule even if it is a contingent or future interest or liability or if the person is an unborn child: r 7.6(3).

A judgment or order made in proceedings in which an appointment has been made under r 7.6, binds the persons or members of the class represented as if they had been a party: r 7.7.

The court may give the conduct of the whole or any part of any proceedings to such persons as it sees fit: r 7.8 and see Ritchie’s at [7.8.5].

It is not necessary, in proceedings against a trustee, executor or administrator, to join as a party any of the persons having a beneficial interest under the trust or in the estate concerned: r 7.9(1), (2).

Any judgment or order is as binding on the beneficiary as it is on the trustee, executor or administrator: r 7.9(3).

However, if the court is satisfied that the representative, trustee, executor or administrator did not in fact represent a beneficiary, the court may order that the judgment or order not bind that beneficiary: r 7.9(4).

This rule does not limit the power of the court to order that a party be joined under r 6.24: r 7.9(5).

Where it appears to the court that a deceased person’s estate is not represented in proceedings or that the executors or administrators of the estate have an interest that is adverse to the interests of the estate, it may order that the proceedings continue in the absence of a representative of the estate or appoint a representative for the purpose of the proceedings but only with the consent of the person to be appointed: r 7.10(1), (2). For an example of the appointment of such a representative, see RL v NSW Trustee and Guardian (No 2) [2012] NSWCA 78.

A judgment or order then binds the deceased person’s estate to the same extent as the estate would have been bound had a personal representative of the deceased been a party: r 7.10(3).

Before making an order under the rule the court may order that notice of the application be given to such persons having an interest in the estate as it sees fit: r 7.10(4).

An examples of a situation where the court orders the proceedings to continue is where another party has the same interest or the relevant interest is small: Porters v Cessnock City Council [2005] NSWSC 1275. See also Borough of Drummoyne v Hogarth (1906) 23 WN (NSW) 243.

In proceedings relating to an estate, all executors or administrators must be parties unless one or more of them has represented the other pursuant to r 7.4 : r 7.11(1).

In proceedings relating to a trust, all the trustees must be parties: r 7.11(2).

In proceedings commenced by executors, administrators or trustees, any executor, administrator or trustee who does not consent to being joined as a plaintiff must be made a defendant: r 7.11(3).

In proceedings relating to an estate, all persons having a beneficial interest in a claim against the estate need not be parties, but the plaintiff may make parties of such of these persons as he or she thinks fit: r 7.12(1).

In proceedings relating to a trust, all persons having a beneficial interest under the trust need not be parties, but the plaintiff may make parties of such of those persons as he or she thinks fit: r 7.12(2).

Rule 7.12 has effect despite r 6.20. See “Joinder of causes of actions and parties” at [2-3400].

As to the appropriateness of joining beneficiaries and claimants and costs, see Ritchie’s at [7.12.5]–[7.12.10], Thomson Reuters at [r 7.12.40].

See “Persons under legal incapacity” at [2-4600].

Rules 7.19 and 7.20 provide that persons are to sue and be sued in their own name and not under any business name, except where the proceedings are in respect of anything done or omitted to be done in the course of, or in relation to, a business carried on under an unregistered name. In such a course the proceedings may be commenced against the defendant under the unregistered business name.

The unregistered name is taken to be a sufficient description of the person sued (r 7.20(2)) and any judgment or order in the proceedings may be enforced against the person carrying on the unregistered business: r 7.20(3).

If sued under a business name, a defendant must not enter an appearance or file a defence otherwise than under his or her own name: r 7.21(1). With the appearance or defence the defendant must file a statement of the names and residential addresses of all persons who were carrying on the business when the proceedings were commenced: r 7.21(2). Unless this is done, the court may order that the appearance or defence be struck out: r 7.21(3).

Where the defendant is sued under a business name, the plaintiff must take such steps as are reasonably practical to ascertain the name and residential address of the defendant and to amend such documents as will enable the proceedings to be continued against the defendant in his or her own name: r 7.22(1).

The plaintiff may not, except with the leave of the court, take any step in the proceedings other than the filing and serving of originating process and steps to ascertain the name and residential address of the defendant until the documents have been amended as above: r 7.22(2).

As to relator proceedings, see Ritchie’s at [7.23.5]–[7.23.15] and Thomson Reuters at [r 7.23.40].

A relator must act by a solicitor: r 7.23(1). A solicitor may not act for a relator unless he is authorised to do so by the relator (r 7.23(2)(b)), and a copy of the instrument authorising the solicitor to so act has been filed: r 7.23(2)(b).

The consent of the Attorney General is needed for the commencement of relator proceedings, for they are brought in his or her name. However, if an action is commenced without the Attorney General as plaintiff, an amendment may be made with the permission of the Attorney General: Farley and Lewers Ltd v The Attorney-General [1963] NSWR 1624 at 1631.

Subject to the content or subject matter otherwise indicating, every act or thing which, by or under the CPA or the UCPR or otherwise by law, is required or allowed to be done by a party, may be done by his or her solicitor: r 7.24.

As to the conduct of proceedings without retaining a solicitor, see “Unrepresented litigants and lay advisers” at [1-0800] and Ritchie’s at [7.1.5], [7.24.5].

As to challenging the retainer of a solicitor see Doulaveras v Daher [2009] NSWCA 58 at [76]–[161].

A solicitor or a partner of a solicitor who is a party to any proceedings, or acts as a solicitor for a party to any proceedings, may not act for any other party in the proceedings, not in the same interest, except by leave of the court.

Leave is commonly granted for a solicitor to appear for defendants in different interests in will-contention cases, unless there is likely to be an evidentiary dispute. Usually separate counsel are briefed for each interest.

A party may change solicitors (r 7.26(1)) and a solicitor may change agents: r 7.26(2). The party or solicitor must file notice of the change: r 7.26(3). A copy of the notice filed must be served on all other active parties and, if practicable, on the former solicitor or agent: r 7.26(4).

An “active party” is defined in the dictionary to the UCPR as:

A party who terminates the authority of a solicitor to act must file notice of the termination and serve a copy on all other parties and, if practicable, on the former solicitor: r 7.27(1), (2). The filing of the notice and its service may be effected by the former solicitor: r 7.27(3). Rule 7.27 does not apply to a change of solicitor referred to in r 7.26.

A party who acts for himself may afterwards appoint a solicitor to act in the proceedings on the party’s behalf: r 7.28(1). Notice of the appointment must be filed and served: r 7.28(2).

A solicitor who ceases to act may file the notice of change and serve the notice on the parties: r 7.29(1).

Except by leave of the court, a solicitor may not file or serve notice of the change unless he or she has filed and served on the client a notice of intention to file and serve the notice of change:

Unless the notice of change is filed with the leave of the court, the solicitor must include in the notice a statement of the date on which service of the notice of intention was effected: r 7.27(3).

Leave may be effected by post to the former client at the residential or business address last known to the solicitor: r 7.27(4).

As to a solicitor ceasing to act, see Ritchie’s at [7.29.5] and Thomson Reuters at [r 7.29.40].

As to suggested form of notices, see Thomson Reuters at [r 7.29.60].

A notice of change of solicitor which is required or permitted to be given does not take effect as regards the court until the notice is filed (r 7.30(a)) and, as regards any person on whom it is required or permitted to be served, until a copy of the notice is served on that person: r 7.22(b).

Thus, service upon a solicitor who is still upon the record, but who is no longer retained, is good service: Turpin v Simper (1898) 15 WN (NSW) 117c.

In the case of a solicitor corporation, any act, matter or thing authorised or required to be done which, in the circumstances of the case, can only be done by a natural person may be done by a solicitor who is a director, officer or employee of the corporation: r 7.31.

Legislation

Rules

Practice Note