Footnotes
19. Section 33D of the Federal Court of Australia Act 1976 provides that in for the purpose of commencing a class action under Pat IVA a person 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 representative proceeding against that other person on behalf of other persons. The threshold requirements of s 33C(1) are required to be satisfied. This provides that a class action may be commenced by one or more persons as representing some or all of the members of the class where: (a) 7 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 (c) the claims of all those persons give rise to a substantial common issue of law or fact.
20. As to what is a ‘matter’, see e.g. Abebe v Commonwealth (1999) 197 CLR 510.
21. See e.g. s 33Q(2) Federal Court of Australia Act 1976.
22. See e.g. s 33Q(3) Federal Court of Australia Act 1976.
23. Section 33(1)(a) Federal Court of Australia Act 1976.
24. Nixon v Phillip Morris (Australia) Ltd (1999) 95 FCR 453
25. See e.g. Bray v Hoffmann LaâRoche (2003) 130 FCR 317; Mc Bride v Monzie Pty Ltd [2007] FCA 1947 (Finkelstein J).
26. Civil Justice Review, Report No 14, Victorian Law Reform Commission, 2008, chapter 8
27. Ibid at 529.
28. Section 58 (2) Civil Procedure Act 2005 (NSW)
29. See e.g. the discussion of these issues in the recent judgment of Nicholas J in Hopkins v AECOM Australia Pty Ltd (No 2) [2013] FCA 115 [30]â[40]
30. See e.g. s 33C(1)(c) Federal Court of Australia Act 1976.
31. See e.g. Practice Note CM 17, Representative Proceedings Commenced under part IVA of the Federal Court of Australia Act 1976 (Cth) 2.1
32. See Konneh v State of NSW [2011] NSWSC 1170.
33. See the decision of the Federal Court in Dorajay Pty Ltd v Aristocrat Leisure Ltd (2005) 147 FCR 394 (Stone J) and the decision of the Victorian Supreme Court in Rod Investments (Vic) Pty Ltd v Adam Clark [2005] VSC 449 (Hansen J).
34. See P Dawson Nominees Pty Ltd v Multiplex Limited [2007] FCAFC 200 (French, Lindgren and Jacobsen JJ).
35. See Kalajdzic J, Cashman P and Longmoore A, ‘Justice for Profit: A Comparative Analysis of Australian, Canadian and U.S. Third Party Litigation Funding’, The American Journal of Comparative Law [Vol. 61, 2013] 93.
36. In Pathway the Victorian Supreme Court recently ordered by consent that those who register as group members, rather than opt out, do so on the understanding that they will, if they are to receive any money on resolution, pay their share of costs and a percentage to the funder. The orders were made without debate about the source of the power: Pathway Investments Pty Ltd and others v National Australia Bank Ltd SCI 2010 06249, 24 August 2012
37. A number of these cases are referred to in the article referred to above.
38. See the discussion in the following cases: Williams v FAI Home Security Pty Ltd [199] FCA 1771; Murphy v Overton Investments Pty Ltd [1999] FCA 1123; Peter Hanne & Associates Pty Ltd v Village Life Limited [2008] FCA 719; Mathews v SPI Electricity Pty Ltd (No 5) [2012] VSC 66.
39. See ss 33Q & R, Federal Court of Australia Act 1976
40. Section 43 (1A) Federal Court of Australia Act 1976
41. Cook v Pasminco (No 2) (2000) 107 FCR 44
42. See e.g. s 33K Federal Court of Australia Act 1976
43. Kelly v Willmott Forests Ltd (in liquidation) [2012] FCA 1446
44. See e.g. the following decisions: King v GIO Holdings Ltd [2002] FCA 1560; Hurley v McDonalds Australia Ltd [2001] FCA 209; Wright Rubber Products Pty Ltd v Bayer AG [2010] FCAFC 85; Meaden v Bell Potter Securities Ltd [2011] FCA 136; Kirby v Centro Properties Ltd [2011]; National Australia Bank Limited v Pathway Investments Pty Ltd [2012] VSCA 168; Regent Holdings Pty Ltd v State of Victoria [2012] VSCA 221; Winterford v Pfizer Australia Pty Ltd [2012] FCA 1199; Hopkins v AECOM Australia Pty Ltd (No 2) [2013] FCA 115. See also Legg M, ‘Discovery and particulars of group members in class actions’ (2012) 36 Australian Bar Review 119â136
45. Hopkins v AECOM Australia Pty Ltd (No 2) [2013] FCA 115
46. Section 33ZE of the Federal Court of Australia 1976 (Cth) suspends limitation periods for group members from the date of commencement of the class action. Query whether or not this may keep alive the respondent’s right to make a cross claim pending a determination of each class members claim.
47. In Federal Court proceedings pursuant to s 33ZF(1) Federal Court of Australia Act 1976
48. See e.g. Courtney v Medtel Pty Ltd (2002) 122 FCR 168. In Courtney Sackville J held that while the respondent could communicate with group members in the circumstances of that case, where it was ‘communicating with a group member in a manner which is not misleading or otherwise unfair and which does not infringe any other law or ethical constraint’, the Court might intervene pursuant to s 33ZF where that was not the case (at 183 [52]). See also Pampered Paws Connection Pty Ltd v Pets Paradise Franchising (Qld) Pty Ltd (No 5) [2009] FCA 1053. See also Grave D, Adams K and Betts J, Class Actions in Australia, second edition, Law Book Company, 2012 at 14.310.
49. Federal Court, Practice Note CM 17âRepresentative Proceedings Commenced under Part IVA of the Federal Court of Australia Act 1976, 6. The respondents in a product liability class action concerning prosthetic hips recently instituted a ‘compensation regime’ outside of the class action (Stanford v DePuy and Johnson and Johnson Federal Court NSD213/2011) The applicants’ injunction application was dismissed by consent after the respondents agreed to deliver corrective information to affected group members.
