Following amendments to the CPA in 2011, a new regime which echoed the provisions of Pt IVA of the Federal Court of Australia Act 1976 (Cth) was enacted. (See Supreme Court Practice Note, SC Gen 17, concerning representative proceedings, commenced 1/8/2024). Part 58 of the UCPR was inserted to make provision for opt out notice requirements together with Form 115, which may be downloaded from the Supreme Court website.

Part 10 permits the commencement of proceedings by a representative party and does not provide for the appointment of a representative party for defendants or respondents. However, the Supreme Court has jurisdiction to make such representative orders: Ahmed v Choudbury [2012] NSWSC 1452 and Burwood Council v Ralan Burwood Pty Ltd (No 2) [2014] NSWCA 179.

While an application “under” Pt 2 of Ch 7 of the Industrial Relations Act 1996 cannot be commenced or maintained on behalf of group members, proceedings under Pt 10 of the CPA can be commenced and maintained seeking relief in respect of any statutory debt that arises in favour of group members in respect of their award entitlements: Fakhouri v The Secretary for the NSW Ministry of Health [2022] NSWSC 233 at [1], [51].

Proceedings can be commenced in the Supreme Court by seven or more people who have claims against the same person or persons. The claims must arise out of the same, similar or related circumstances and the claims must give rise to “ … a substantial common question of law or fact …”: s 157(1). There is no basis to construe this phrase narrowly. A question can be common even if different evidence is adduced in respect of each aspect of the claim: Nguyen v Rickhuss [2023] NSWCA 249 at [27].

The person who commences the proceedings, known as the representative party, must have standing to commence representative proceedings on behalf of other persons. It is sufficient if the representative party has standing to commence proceedings on his or her own behalf: s 158(1).

A person may commence proceedings against more than one defendant. This can occur irrespective of whether or not the representative plaintiff, or each group member, has a claim against every defendant in the proceedings: s 158(2). This provision overcomes a contrary view expressed in Philip Morris (Australia) Ltd v Nixon [2000] FCA 229, in relation to Pt IVA.

Consent of a person to be a group member is not required unless he or she is a Minister or an officer of the Commonwealth, a State or a Territory. An incorporated company or association does not require to give consent, however, consent is required if the proposed group member is the Commonwealth, a State, Territory or a body corporate established for a public purpose by a Commonwealth, State or Territory law: s 159.

The originating process must describe or otherwise identify the group members, specify the nature of the claims and the relief claimed, and the question of law or facts common to the claims. It is not necessary to name or specify the number of the group members: s 161. At the same time as the originating process is filed and served, the plaintiff’s solicitor must file and serve a Class Action Summary Statement providing basic information about the proceedings: see Supreme Court Practice Note, SC Gen 17 at [12].

It is not inappropriate for representative proceedings to be brought on behalf of a limited group which does not include all possible claimants: s 166(2). As to the framing of group definitions, see Petrusevski v Bulldogs Rugby League Ltd [2003] FCA 61, per Sackville J at [19]-[23].

Specification of one or more substantial common questions of fact or law in the originating process is important. These common questions provide the backbone of the proceedings and “careful compliance” is “of the greatest importance”, per Lindgren J in Bright v Femcare Ltd [2002] FCAFC 243 at [14].

Group members are given the option to opt out of representative proceedings in the Court: s 162. The opt-out nature of the regime has long been recognised to be an important aspect of the legislative regime: Mobil Oil Australia Pty Ltd v State of Victoria (2002) 211 CLR 1 at [39]–[40] (on the equivalent federal legislation); approved in BMW Australia Ltd v Brewster (2019) 269 CLR 574 at [73] and noted in Wigmans v AMP Ltd (2020) 102 NSWLR 199 at [77]–[79].

Part 58 of the UCPR provides that the opt out notice must be filed and served on the representative party in the approved form (see Form 115). The form specifies that the potential group member understands that he or she forgoes the right to share in any relief obtained by the representative party in the representative proceedings and will not be entitled to receive any further notification about the conduct or disposition of the proceedings, and, to the extent he or she has a claim against the defendant/s, any limitation period suspended by the commencement of the representative proceedings has recommenced to run.

Within 14 days after the opt out date, that is the date fixed by the court before which a group member may opt out, the representative party must provide to the other parties a list of the persons who have opted out: UCPR r 58.2(2).

If, at any stage of the proceedings, it appears likely to the court that there are fewer than seven group members, the court may, on such conditions as it thinks fit, order that the proceedings continue under Pt 10 or order that they no longer do so: s 164.

The court may, on application by the defendant or of its own motion, order that proceedings no longer continue under Pt 10 if it is satisfied that it is in the interests of justice to do so upon one or more of the grounds set out in the section: s 166(1). As to the ground of “inappropriateness”, see Multiplex Funds Management Ltd v P Dawson Nominees Pty Ltd (2007) 164 FCR 275: s 166(2).

If the court orders proceedings not to continue under Pt 10, they may continue as proceedings by a representative party on its own behalf. The court may order that a group member be joined as an applicant in those proceedings: s 167(1).

Where it appears to the court that determination of the question or questions common to all group members will not finally determine the claims of a group member, the court may give direction in relation to the determination of the remaining questions: s 168(1). A sub-group may be established and a sub-group representative party appointed: s 168(2). The court may permit an individual group member to appear in the proceedings for the purpose of determining a question that relates only to that member’s claims: s 169(1).

The representative proceedings are case managed by a judge of the Division in which they are commenced. (See [2-0000]ff as to case management.)

The management of representative proceedings is discussed in Merck Sharp and Dohme (Aust) Pty Ltd v Peterson [2009] FCAFC 26 at [4]–[10] and in Bright v Femcare Ltd [2002] FCAFC 243 at [160].

In circumstances where an initial hearing will not determine all claims of all group members, it is appropriate to identify, in advance of the hearing, for reasons, at least, of procedural fairness, the questions which appear to be common from a consideration of the pleadings, and, where relevant, evidence which it is intended to adduce. This procedure involves making what are known as “Merck Orders”: Merck at [4]–[10]; Dillon v RBS Group (Australia) Pty Ltd [2017] FCA 896 at [66] and Richmond Valley Council v JLT Risk Solutions Pty Ltd [2021] NSWSC 383.

When formulating questions by way of Merck Orders, it is not necessary for those questions to fall within the constraint of a “substantial common question of fact or law” as that phrase is used in s 157(1)(c) of the CPA: Moussa v Camden Council (No 5) [2023] NSWSC 1135 at [55]–[57]; see also Scenic Tours Pty Ltd v Moore [2018] NSWCA 238 at [409].

Finklestein J, in Bright v Femcare, above, observed at [160]:

See also Giles v Commonwealth of Australia [2014] NSWSC 83 and Wigmans v AMP Ltd (2021) 270 CLR 623 at [116].

Representative proceedings may not be settled or discontinued without leave of the court: s 173(1). Unless otherwise ordered, an application for approval by the Court of a settlement or discontinuance of proceedings must be made by notice of motion in the proceedings: Supreme Court Practice Note, SC Gen 17 at [32]. The court may make orders as to the distribution of settlement moneys: s 173(2). The court’s approval under s 173 is a discretionary decision, and therefore can only be disturbed if a House v The King error¹ is established: Augusta Pool 1 UK Ltd v Williamson (2023) 111 NSWLR 378 at [2], [9]–[10], [76]. As to settlement offers to group members, see Courtney v Medtel Pty Ltd [2002] FCA 957, per Sackville J at [64]. For a detailed discussion concerning the fairness and reasonableness of an overall settlement sum, see Darwalla Milling Co Pty Ltd v F Hoffman-La Roche (No 2) [2006] FCA 1388 at [42]–[64]. The central question for the court is whether the proposed settlement is fair and reasonable in the interests of the group members considered as a whole. The court’s role in relation to group members is supervisory and protective, analogous to that which it assumes when approving settlements on behalf of persons with a disability: Findlay v DSHE Holdings Ltd [2021] NSWSC 249 at [12]–[14]. See also Ellis v Commonwealth [2023] NSWSC 550 at [7], [17]–[18]. Cases decided under the equivalent s 33V Federal Court of Australia Act 1976 (Cth) include: Williams v FAI Home Security Pty Ltd (No 4) [2000] FCA 1925 at [19]; Kelly v Willmott Forests Ltd (in liq) (No 4) [2016] FCA 323 at [62]; Court v Spotless Group Holdings Ltd [2020] FCA 1730 at [8].

With the leave of the court, a representative party may settle their own claim at any stage of the representative proceedings: s 174(1). They may, with leave, withdraw as a representative party: s 174(2). By order, another group can be established: s 174(3). Before granting leave to withdraw as a representative party, the court must be satisfied that notice has been given to group members, that the notice was given in sufficient time for them to apply for another person to be substituted, and that any application for substitution has been determined: s 174(4).

There is no provision in Pt 10, CPA that expressly or impliedly prevents the filing of a second representative proceeding against a defendant in relation to a controversy. Where seven or more persons have claims against the same person, and the conditions in s 157(1)(b) and (c) are met, s 157 permits “one or more” of those persons to commence proceedings representing some or all of them. However as per Supreme Court Practice Note, SC Gen 17 at [25] “Competing class actions”, the lawyers for the parties are to inform the Court upon becoming aware that a competing class action has been filed in the Supreme Court, the Federal Court or in another Court. Lawyers should familiarise themselves with any relevant protocol: for example, Federal Court, Protocol for communication and cooperation between Supreme Court of New South Wales and Federal Court of Australia in class action proceedings, November 2018.

Provisions in Pt 10, such as ss 171 and 162, do not detract from the Supreme Court’s power under s 67 to stay competing representative proceedings or impose any limitations: Wigmans v AMP Ltd (2021) 270 CLR 623 at [78].

The Supreme Court’s power to grant a stay under s  67 CPA of competing representative proceedings is not confined by a rule or presumption that the proceeding filed first in time is to be preferred. There is no “one size fits all” approach. In matters involving competing open class representative proceedings with several firms of solicitors and different funding models, where the interests of the defendant are not differentially affected, it is necessary for the court to determine which proceeding going ahead would be in the best interests of group members. The factors that might be relevant cannot be exhaustively listed and will vary from case to case: Wigmans, above, at [52].

Part 10, Div 3 concerns notices. Section 175 provides for notices that must be given in representative proceedings. Generally, the court has a wide power to order that notice of any matter be given to the group or individual members: s 175(5). Section 175(5) is informed by s 175(6) in at least two respects. First, it must be related to an “event” and that “event” is one that must have occurred prior to the giving of the notice. The point of notification is to advise group members of events in the litigation so that they may exercise their rights in an informed way: Pallas v Lendlease Corp Ltd (2024) 114 NSWLR 81 at [32], [112], [119] per Bell CJ (Gleeson, Leeming and Stern JJA agreeing; cf Ward P at [137]). In this case, the proposed notification was held not to be of any event but of a present intention on the part of the respondent to participate in settlement negotiations in a particular way and was therefore invalid: [32], [112], [118]–[119].

The court must specify who is to give the notice and the way in which the notice is to be given: s 176(2). Any conditions and compliance periods must also be clearly specified in the order. Pursuant to s 175(6), notices must be given as soon as practicable after the happening of the event to which it relates.

Specifically, notices must be given for the following:

The court has the power to dispense with compliance if the relief sought in the proceedings does not include any claim for damages (s 175(2)) or it may order that the notice includes a direction to a party to provide information relevant to the giving of the notice and relating to the costs of giving notice: s 176(3).

The court may also order that notice be given in the media, for example by means of press advertisement, radio or television broadcast: s 176(4). This may be particularly useful if the court is “not confident all the group members were known by name, and so could be notified by letter”: McMullin v ICI Australia Operations Pty Ltd (No 6) (1998) 84 FCR 1 at 260, per Wilcox J. The court may not order that notice be given personally to each group member unless it is satisfied that it is reasonably practical and not unduly expensive, to do so: s 176(5).

In determining a matter in representative proceedings, pursuant to s 177(1), the court has the power to:

In making an award of damages, the court must make provision for the payment or distribution of the money to the group members entitled: s 177(2).

The court may provide for the constitution and administration of a fund: s 178. The court may give directions as it thinks just in relation to the manner in which a member’s entitlement to damages is established and how to determine any disputes concerning that member’s entitlement: s 177(4).

If a group member does not make a claim within the set timeframe, the court may allow his or her claim, taking into account such factors as whether it is just to do so or if the fund has not already been fully distributed: s 178(4). The defendant may apply to the court for an order to receive any money remaining in the fund: s 178(5).

The court may, of its own motion or on application by a party or a group member, make any order that the court thinks appropriate or necessary to ensure that justice is done in the proceedings: s 183. However, s 183 is not a plenary power “at large” and is not a power conferred on the Supreme Court simply to make such orders “as the court thinks fit” or which are “in the interests of justice” or which will promote or facilitate settlement: Haselhurst v Toyota Motor Corporation Australia Ltd t/as Toyota Australia [2020] NSWCA 66 at [4]. Section 183 (and the identical s 33ZF of the Federal Court of Australia Act 1976) cannot be given a more expansive construction and a wider scope of operation than the other provisions of the scheme. To do so would be to use ss 183 and 33ZF as a vehicle for rewriting the scheme of the legislation: BMW Australia Ltd v Brewster [2019] HCA 45 at [70].

A majority of the High Court in BMW Australia Ltd v Brewster held that s 183, properly construed, does not empower a court to make a common fund order. Sections 183 and 33ZF empower the making of orders as to how an action should proceed in order to do justice; they are not concerned with the radically different question as to whether an action can proceed at all: at [3]. It is one thing for a court to make an order to ensure that the proceeding is brought fairly and effectively to a just outcome; it is another thing for a court to make an order in favour of a third party with a view to encouraging it to support the pursuit of the proceeding, especially where the merits of the claims in the proceeding are to be decided by that court: at [47], [49].

In related litigation in Haselhurst v Toyota Motor Corporation Australia Ltd t/as Toyota Australia, a five-judge bench of the Court of Appeal held that an order for “class closure” which in effect destroyed a person’s cause of action within the limitation period, without a hearing and with no guarantee that the person would necessarily know of the outcome or consequence of their failure to register, was not an order that was “necessary to ensure that justice is done in the proceedings” or “appropriate … to ensure that justice is done in the proceedings”: at [12] The court held that the scheme of Pt 10 of the CPA is inconsistent with an interpretation of s 183 which empowered the Supreme Court to make an order effecting “class closure”. In so finding, the Court of Appeal analysed and followed the construction of Pt 10 of the Civil Liability Act preferred by the majority of the High Court in BMW Australia Ltd v Brewster: at [99]. See also Wigmans v AMP (2020) 102 NSWLR 199 at [79], followed in Pallas v Lendlease Corp Ltd [2024] NSWCA 83 at [124]–[125] (Bell CJ, Ward P and Gleeson, Leeming and Stern JJA agreeing); Parkin v Boral Ltd [2022] FCAFC 47 (considering equivalent federal legislation) disapproved.

If the court makes an award of damages, the representative party may apply for reimbursement of the representative party’s costs: s 184. The court must be satisfied that the costs, reasonably incurred in relation to the representative proceedings, are likely to exceed the costs recoverable from the defendant. In this case, the court may order that an amount equal to the whole or a part of the excess be paid to that person out of the damages awarded. The court may also make any other order that it thinks just.

Pursuant to s 179, a judgment given in representative proceedings must describe or otherwise identify the group members who will be affected by it and bind them, other than those who have chosen to opt out of the proceedings.

Under Pt 10, Div 5, appeals can be brought before the Court of Appeal by the group or sub-group’s representative in respect of the judgment to the extent that it relates to questions common to the group or sub-group’s claims: s 180(1). The parties to an appeal which relates only to the claim of any individual group member are that group member and the defendant: s 180(2). If the representative party does not bring an appeal within the time provided for instituting appeals, another group member may bring an appeal within 21 days: s 180(3). The court may direct to whom and how a notice of appeal should be given: s 180(4). The notice instituting an appeal must describe or identify the members of the group or sub-group but not necessarily the number or the names of those members: s 180(5).