Case: Campbells Cash and Carry Pty Ltd v Fostif Pty Ltd [2006] HCA 41 ; (2006) 229 CLR 386
Outcome: referred to
High Court considered Pt 8 , r 13 of the Supreme Court Rules (NSW), which at the time was relevantly the same as O 6 r 13 of the Federal Court Rules , in Carnie v Esanda Finance Corporation Ltd [1995] HCA 9 ; (1995) 182 CLR 398 and Campbells Cash and Carry Pty Ltd v Fostif Pty Ltd [2006] HCA 41 ; (2006) 229 CLR 386: contrast Wong v Silkfield Pty Ltd [1999] HCA 48 ; (1999) 199 CLR 255 , an applicant representative action under Pt IVA of the Federal Court of Australia Act 1976 (Cth). As noted in Carnie , "the ancestor" to these Rules "is to be found in the English Rules of the Supreme Court", which was "in turn derived from an earlier rule which itself was derived from the practice of the Court of Chancery": see Carnie 182 CLR at 415 per Toohey and Gaudron JJ and 427-429 per McHugh J. Some care needs to be taken, however, with regard to Carnie and Campbells Cash since both concerned plaintiff representative actions, not defendant representative actions. Thus, in Carnie 182 CLR at 404, Mason CJ, Deane and Dawson JJ said that the purpose of the representative procedure was "to facilitate the administration of justice by enabling parties having the same interest to secure a determination in one action rather than in separate actions". In Campbells Cash 229 CLR at 422 [55], Gummow, Hayne and Crennan JJ made much the same point, saying: A central objective of the representative procedures for which Pt 8, r 13 provided was the avoidance of multiplicity of proceedings and the efficient determination, once and for all, of controversies in which parties have the same interest. An important indication of the nature of the interest that numerous persons must have in proceedings instituted under Pt 8, r 13 was given by Pt 8, r 13(4). A judgment entered or order made in the proceedings 'shall be binding on all the persons as representing whom the plaintiffs sue'. What the rules were intended to achieve was a single determination of common issues in a way that binds those who were interested in those issues. As Carnie and Campbells Cash show, though simply expressed, the requirement of "same interest" has presented difficulties. In Carnie the High Court held that persons having separate causes of action in contract and tort might have the same interest in a proceeding for the purposes of the representative proceeding rules as they then stood in the NSW Supreme Court. The fact that the represented persons' claims arose under separate contracts was held insufficient to defeat the requirement that there be numerous persons having the same interest. In Carnie 182 CLR at 405, Mason CJ, Deane and Dawson JJ held that, in the circumstances of that case, numerous persons had "the requisite commonality of interest" to satisfy the jurisdictional requirement of the rule. Toohey and Gaudron JJ reached a similar conclusion, holding that the onus was on the named plaintiffs "to identify the class with sufficient particularity", without necessarily identifying every member, and that they had done so, noting that "[t]he class is not open-ended; it is limited to those persons who have credit sale or loan contracts with the respondent which have been varied in circumstances where the variation has been executed in such a way as to be inconsistent with the [Credit] Act": see Carnie 182 CLR at 422. In Campbells Cash , a proceeding was instituted in the name of one plaintiff and a group of represented retailers who chose, by opting-in, to be bound: see Campbells Cash at 421 [52]. Gummow, Hayne and Crennan JJ accepted, at 421 [54], that "the rule did not require the separate identification of, and consent from, those who were said to constitute the 'numerous persons'". In Campbells Cash , their Honours held, however, that, at the commencement of the proceeding, there was no person, other than the named plaintiff, who had an interest in the proceeding, because no order or judgment given in the proceeding would have bound any other person: see Campbells Cash at 422 [57]-[58]; and see also 472-473 [222]-[226] per Callinan and Heydon JJ. Accordingly, the jurisdictional requirement was not met.