Case: Carnie v Esanda Finance Corporation Ltd [1995] HCA 9 ; (1995) 182 CLR 398
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 discussing Carnie in Trustees of the Roman Catholic Church for the Archdiocese of Sydney v Ellis [2007] NSWCA 117 ; (2007) 70 NSWLR 565 at 582 [74] , Mason P, with whom Ipp JA and McColl JA agreed, usefully summarised the various approaches in Carnie thus: McHugh J suggested (at 427) that a plaintiff and the represented persons would have 'the same interest' in legal proceedings when they have a community of interest in the determination of any substantial question of law or fact that arises in the proceedings. Brennan J (at 408) agreed with this test. Toohey and Gaudron JJ said (at 421) that persons would have the same interest in proceedings if there was a significant question common to all members of the class and they stood to be equally affected by the (declaratory) relief sought by the appellants in the instant proceedings. Mason CJ, Deane and Dawson JJ thought (at 404) that the 'same interest' requirement 'may ... [extend] to a significant common interest in the resolution of any question of law or fact arising in the proceedings'. Carnie also showed that, even if the jurisdictional requirements of O 6 r 13(1) are satisfied, the Court may nonetheless consider, as a matter of discretion, that the proceeding ought not continue as a representative proceeding. Various factors might be relevant to this determination, including whether alterations to the group description can be allowed, notice requirements for group members, and the practicalities of settlement or discontinuance of the proceeding. As Mason CJ, Deane and Dawson JJ said in Carnie at 405, determining the importance of such matters in the context of the particular case is not necessarily straightforward, especially in the context of a defendant representative proceeding. Again, having regard to the conclusion I have reached on the lack of commonality of interest, it is strictly unnecessary to explore these discretionary considerations further. Since, however, Stacey Brothers specifically sought to amend the definition of the group, in order, so it said, better to "capture" the group, I discuss briefly whether the amendment might be made.