The Operation Of The Australian Class Action Regime — 2013 Part B

Footnotes

61. Mobil Oil Australia Pty Ltd v State of Victoria (2002) 211 CLR 1, [50] per Gaudron, Gummow and Hayne JJ “The position of the plaintiffs in the proceeding may be contrasted with those whom they represent – the group members. Subject to some exceptions that do not matter for present purposes, the consent of a person to be a group member is not required. Group members may neither know of the commencement of the proceeding nor wish that it be brought or prosecuted, although Pt 4A does provide for notice to be given to group members of (among other things) the commencement of the proceeding.”

62. see for example ss 33L and 33N

63. P Dawson Nominees Pty Ltd v Brookfield Multiplex Ltd (No 2) [2010] FCA 176, [16]

64. Thomas v Powercor Australia Ltd (Ruling No 1) [2010 VSC 489, [39].

65. [2002] FCA 1560

66. see for example [2011] VSC 401

67. Ibid [32] to [33]

68. Vincent Morabito, the Second Report, above n 5, 35; Paul Miller, ‘Shareholder class actions: Are they good for shareholders?’ (2012) 86 ALJ 633.

69. Nicholas Pace, Class Actions In The United States Of America (Globalisation of Class Actions Conference, Oxford University, 2007); Marc Galanter, ‘The Vanishing Trial: An Examination Of Trials And Related Matters In Federal And State Courts’ (2004) 1 J. Empirical Legal Stud., 459.

70. Ken Adams, Issues And Challenges In Resolving Class Actions (Commercial Law Conference, Supreme Court of Victoria, 2012).

71. Ibid [16] to [17].

72. [2010] VSC 489, [39]

73. Ibid [49]

74. [2012] VSCA 168

75. [2012] VSCA 221

76. Ibid [15].

77. [2013] FCA 115

78. There is though a question as to the basis of the respondent’s concerns that they may become unable to claim contribution from the class members’ financial advisors by effluxion of the limitation period (as accepted by Nicholas J). For example, s 24(4)(a)(i) of the Wrongs Act 1958 (Vic) allows a contribution claim to be made at any time within which the action might have been commenced against the party seeking contribution. The relevant limitation period is six years for the causes of action under the Corporations Act. However the time limit is suspended for all class members by operation of s 33ZE of Pt IVA which provides: (i) Upon the commencement of a representative proceeding, the running of any limitation period that applies to the claim of a group member to which the proceeding relates is suspended. (ii) 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.

79. [2001] 2 S.C.R. 534; 201 DLR 385

80. David Herr, Annotated Manual for Complex Litigation (Thomson West, 4th ed 2007)[21.41]

81. Thomas v Powercor Australia Ltd (Ruling No 1) [2010 VSC 489 [56] to [57] where Forrest J said: “…Powercor should be provided with sufficient information, relevant to the group members, to enable it to have some idea as to the size of the claim it has to meet in the event it is found liable to the group. As I have said, the provision of discovery by all group members is out of the question; however there should be a process by which Powercor can obtain such information in the form of particulars of loss and with accompanying substantiating documentation from, if possible, a representative sample of members.”