Case: Petrusevski v Bulldogs Rugby League Ltd [2003] FCA 61
Outcome: applied
The need for precision in the framing of group definitions in representative proceedings was explained by Sackville J in Petrusevski v Bulldogs Rugby League Ltd [2003] FCA 61. His Honour said: "19 In determining what s 33H(1)(a) of the Federal Court Act requires, it is important to consider why it is necessary to describe or identify the group members in a representative proceeding. One reason, as the High Court observed in Wong v Silkfield, is to enable the Court to determine whether the requirements of s 33C have been satisfied. Unless the group member is adequately described or identified (although not necessarily named or counted: s 33H(2)), it may be difficult to ascertain, for example, whether the claims of all the group members give rise to a substantial common issue of law or fact. 20 Another reason for describing or identifying group members is to enable group members to decide whether or not to opt out of the representative proceeding pursuant to s 33J(2) of the Federal Court Act. If a person who is a group member does not opt out of the proceedings he or she will be bound by the judgment. (Section 33ZB requires the judgment in a representative proceeding to "describe or otherwise identify the group members who will be affected by it" and provides that the judgment binds any such persons other than any person who has opted out.) The failure by a group member to opt out of representative proceedings may therefore be attended by serious consequences, although of course the litigation might also produce advantages for that group member. 21 These factors suggest that it must be possible for persons who may be within the represented group to ascertain from the pleadings whether they are in fact group members. The point was made by Hedigan J in Cook v Pasminco Ltd [2000] VSC 534 , at [59], in relation to similar State legislation: "It is beyond doubt that in a group proceeding the description of a group membership must be such so that it is at least possible to determine who falls within the group as described. Persons contemplated as being within the group would themselves not understand whether they were within it, unless the definition of the group is intelligible, although not necessarily exact. Members of the group are entitled to know what constitutes the essentials of the group. A decision concerning opt-out cannot be sensibly made unless it is known what it is that is being opted out from." It follows from his Honour's observations that a person must be able to ascertain from the description of the represented group whether he or she is a member of that group. 22 ... 23 Clearly enough, not every description or identification of the represented group will satisfy the requirements of s 33H(1)(a) of the Federal Court Act. A useful, although not necessarily exhaustive test, is whether the description is such as to enable a person, with the assistance of a legal adviser if necessary, to ascertain whether he or she is a group member. If the description incorporates a reference to conduct alleged in the pleadings, a person or his or her adviser ought to be able, by reading the description and the relevant portion of the pleadings, to determine whether he or she is a member of the represented group. If a person cannot reasonably be expected to do this, the definition is unlikely to satisfy the requirements of s 33H(1)(a). (Emphasis added)." In that case the group was defined, in part, by reference to the pleaded conduct of the respondent. Hence his Honour's allusion, in the final paragraph quoted, to a definition incorporating a reference to conduct. The test which he propounded would have equal application to a definition which had, as one of its elements, the purchase by group members of a particular product: a person who wishes to ascertain whether or not he or she is a group member must be able, by reading the definition, to determine whether he or she has purchased such a product. 14 As presently framed the group definition includes any person who has paid at least $5,000 for "rubber chemicals" or "rubber products" in a six and a half year period. There could be multiple purchases so long as the aggregate price of those purchases exceeds $5,000. The purchases could have been made anywhere. A person seeking to determine, perhaps with the assistance of his or her lawyer, whether he or she fell within the group would have considerable, but probably not insurmountable, difficulty in deciding whether or not these criteria had been satisfied. Resort to invoices, catalogues, product statements and other documents would be needed. The real problem would lie in determining whether the items purchased were "rubber products". Some decisions would be easy: a rubber ball could readily be identified as a "rubber product". But how are potential group members to know whether an item which does not have the external appearance or texture of rubber contains "rubber chemicals"? They would, presumably, require the assistance of an expert chemist. What if the rubber item forms but a small part of a larger product? The respondents cite as examples the mud flaps on a large truck or the rubber "feet" at the bottom of table legs. Despite being asked, the applicant has not told the respondents whether, in such cases, the larger item with a small rubber part is itself to be regarded as a "rubber product" because it "contains rubber chemicals".