Case: Johnstone v HIH Insurance Ltd [2004] FCA 190
Outcome: cited
33H deals with the content of the originating process whereby a representative proceeding is commenced. That section provides as follows: Originating process (1) An application commencing a representative proceeding, or a document filed in support of such an application, must, in addition to any other matters required to be included: (a) describe or otherwise identify the group members to whom the proceeding relates; and (b) specify the nature of the claims made on behalf of the group members and the relief claimed; and (c) specify the questions of law or fact common to the claims of the group members. (2) In describing or otherwise identifying group members for the purposes of subsection (1), it is not necessary to name, or specify the number of, the group members. Order 73 r 3 of the Federal Court Rules further provides that a representative proceeding " must be commenced by filing an application in accordance with Form 129 ". That form is framed by reference to s 33H(1)(a), (b) and (c): Bailey v Veda Advantage Information Services and Solutions Ltd [2007] FCA 1664 at [9] . Amongst the other requirements imposed by s 33H, s 33H(1)(a) requires the " group members " to be clearly identified: Auskay International Manufacturing and Trade Pty Ltd v Qantas Airways Ltd [2008] FCA 1458 at [27] , [2008] FCA 1458 ; 251 ALR 166 at 175 per Tracey J. In an attempt to give greater clarification as to what is required by s 33H(1)(a), Sackville J in Petrusevski v Bulldogs Rugby League Club Ltd [2003] FCA 61 observed: [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. [Emphasis in original] [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. ... [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). In Wright Rubber Products Pty Ltd v Bayer AG [2008] FCA 1510 at [13] Tracey J referred to " the need for precision in the framing of group definitions in representative proceedings ". In Johnstone v HIH Insurance Ltd [2004] FCA 190 at [52] Tamberlin J likewise said that "... it is necessary to know with some precision who the group members are ".