Class Actions and Trial Issues Flashcards
What are the commencement requirement of s157 CPA?
Seven or more persons
Claiming against same person
Claims arising from the same or related circumstances
Substantial common quieten of law
Relief can involve damages or be equitable
Proceedings may involve separate contracts/transactions
Can you have two defendants in a Class Action?
Yes! as per s158 of the CPA, so long as at least one person in the group has a claim against each defendant, there can be two defendants.
What additional originating processes are there in class actions? Refer to S161 CPA.
Describe or identify group members
Specify nature of claims and relief claimed by group
Specify questions of law or fact common to group
What is the broad legal test so as to Identify a class?
“…if 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”
Petrusevski v Bulldogs Rugby League Club [2003] FCA 61
What was a key point from the case of Johnston v Endeavour Energy [2015] NSWSC 1117?
A Representative party can nominate themselves without knowledge or consent of other members.
What does section s166 of the CPA outline?
Discontinuance of proceedings
Litigation funders
Investors in civil suits.
How do most class actions end?
Via settlement! It keeps costs down, settling early reduces legal fees
Johnston v Endeavour Energy [2015] NSWSC 1117?
class elements must be “fair and reasonable in the interest fo the group members as a whole”
Johnston v Endeavour Energy [2015] NSWSC 1117?
- class elements must be “fair and reasonable in the interest fo the group members as a whole”
- Plaintiffs are required “to disclose the factors which were material to the decision to accept the settlement” IE bankruptcy.
What are some Rationales for disposition without a trial?
Eliminates matters that cannot be truly argued as a matter of fact of law. s56 CPA
Saves time and money s56 CPA
Increases confidence in the civil justice system by not allowing parties to pursue unmeritorious claims.
What document governs what the content of a settlement offer must contain?
UCPR r 20.26
Content of offer must include
Offer of compromise made by any party to any other party
must be in writing and state UCPR r 20.26
may relate to some or all claims
more than once offer can be made on the same claim IE this for that
must indicate the claim or part of the claim for which it relates
must be exclusive of costs, but may propose costs arrangements.
UCPR r42.14
Offer by plaintiff rejected by defendant
Judgment no less favourable to plaintiff.
UCPR r42.15
Offer by defendant rejected by plaintiff
Judgment no less favourable to defendant
UCPR r42.15a
Offer by defendant rejected by plaintiff
Judgment for defendant.
Leach v The Nominal Defendant (QBE Insurance (Australia) LTD) [2014] NSWCA 391 [42]
Whether there was a real element of compromise is determined objectively according to the circumstances of the particular case at the time the Offer was made rather than with the benefit of hindsight.
What is the case law to test if the offer fo settlement was genuine?
Hart Security Australia Pty Ltd v Boucousis (No 2) [2014] NSWSC 1815
… not an offer of a kind likely to encourage early settlement…
was the offer a genuine offer to settlement? or was it hopeless frivolous or vexatious?
Calderbank letters - common-law based offer of comprise
triggered when the UCPR 20.26 isn’t cited in the offer.
Lee v Carlton Crest Hotel (Sydney) Pty Ltd (No 2) [2014] NSWSC 1586 If offer rejected, when costs order is at issue, onus is on offeror to show that it was unreasonable for offer to reject offer.
Summary judgment
UCPR 13.1
Plaintiff makes application given that the defendant has no valid defence. NOT FOR DAMAGES< JUST THE LIABILTY FOR DAMAGES
