Discussion Paper - Law Reform Commission of Western Australia

who it is said contracted lung cancer as a result of inhalation of tobacco smoke,
restricting the class of plaintiffs to those with a particularly high level of tobacco
consumption might facilitate proof of causation for that class (restricted, as it will
be, by a previously identified minimum level of consumption).
3.34 A closed class will also facilitate requests for further and better particulars of
the claims by defendants of each group member, because the claimants are identified
with greater precision (and are likely to be fewer and more readily identifiable). 52
3.35 However, the effect of closed classes is that it effectively converts the statutory
opt-out regime into an opt-in system. 53 Although the courts have allowed this
practice, 54 the justice of closed classes has been questioned. 55
3.36 One concern is that members who fail to register might miss out on the
ability to claim if they do not commence proceedings of their own or join another
representative action (if available). 56 For a further discussion of the tension between
closed classes and the opt-out and an opt-in system, see Chapter 4.
Proceeding with a claim against multiple respondents
3.37 One of the key distinctions in the federal and Victorian legislative schemes,
as opposed to the New South Wales scheme, relates to the ability to proceed in a
representative action against multiple respondents.
3.38 In the federal and Victorian schemes, where one applicant is suing multiple
respondents on behalf of a group then that applicant must have a claim against
each respondent. 57 The requirement that the claims be against the same respondent
becomes complex when there are multiple respondents. There are conflicting
authorities on the question whether every group member must have a claim against
each respondent. These authorities may be summarised as follows: 58
(a)
(b)
(c)
(d)
In Nixon v Phillip Morris (Australia) Pty Ltd, 59 Wilcox J (following his decision
in Symington v Hoechst Schering Agrevo Pty Ltd 60 ) said that all applicants
must have a claim against each respondent. In the subsequent appeal, 61 the
applicants conceded this point.
In Bray v F Hoffman-La Roche Ltd, 62 two judges held that there was no such
requirement.
Kiefel J in Milfull v Terranora Lakes County Club Ltd (in Liq) 63 followed the
decision in Bray.
However, in Johnstone v HIH Insurance Ltd, 64 the trial judge followed the
Philip Morris decision taking the comments in Bray as obiter only.
52. Meaden v Bell Potter Securities Limited [2011] FCA 136.
53. King & Wood Mallesons, Class Actions in Australia: The year in review 2011 (2011) 8.
54. Multiplex Funds Management Ltd v P Dawson Nominees Pty ltd (2007) 164 FCR 275.
55. King & Wood Mallesons, Class Actions in Australia: The year in review 2011 (2011) 9.
56. See, eg, Thomas v Powercor Australia limited [2011] VSC 614, [31]–[35], class action arising from 2009 Victorian bushfires.
57. Symington v Hoechst Schering Agrevo Pty Ltd (1997) 78 FCR 164, 166.
58. For the full discussion of these conflicting Full Court of the Federal Court authorities, see Grave D & Adams K, Class Actions in Australia
(Sydney: Lawbook Co, 2005) 103–13.
59. (1999) 95 FCR 453.
60. (1997) 78 FCR 164, 167.
61. Philip Morris (Australia) Ltd v Nixon [2000] 170 ALR 487.
62. (2003) 130 FCR 317.
63. (2004) 214 ALR 228.
64. [2004] FCA 190.
30 Law Reform Commission of Western Australia – Representative Proceedings : Discussion Paper