Abolition recommended by vlrc who pays costs can be

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Abolition recommended by VLRC
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Who pays? Costs can be ordered against the representative party (plaintiff) or the respondent (defendant), but not the group members Federal Court Act: s 43(1A) Supreme Court Act: s 33ZD Except for sub-groups – ss 33Q & 33R
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Discontinuing Court may order the proceeding discontinue where: Group number drops below 7: s 33L Cost of identifying group members & distributing proceeds would be excessive: s 33M Interests of justice require (eg separate proceedings more efficient): s 33N
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Part 4A Supreme Court Act Came into operation in 2000 based on Part IVA of the Federal Court of Australia Act establishes an opt-out system of representative proceedings Mobil Oil Australia Pty Ltd v Victoria (HCA 2002) – constitutional challenge: judical power & territorial limit regarding opt-out provisions, damages assessment and rights of members of the class Order 18A of the SCR covers the forms etc
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Rowe v Grünenthal & Ors [2011] VSC 657 Lynette Suzanne Rowe on behalf of herself and others who were born in Australia between 1 January 1958 and 31 December 1970 who have suffered since birth from a congenital malformation and whose mothers, while pregnant with them, consumed and/or were administered thalidomide.
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Rowe v Grünenthal & Ors [2011] VSC 657 Issue: limitation defences raised, so Court could not know whether or not the provisions of s 33C of the Supreme Court Act 1986 were satisfied (eg 7 or more people required to commence group proceeding under Part 4A)
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Rowe v Grünenthal & Ors In my view, the fact that at some time in the future it might be shown that there are less than seven people who have a claim against Grünenthal (the others having failed on a limitation defence) is not to the point. A group proceeding (subject to s 33N) may be permitted to proceed even if, at the end of the day, less than seven people ultimately succeed in recovering damages or establishing a cause of action. The fact that the material does not enable the Court to know whether or not there are more than seven people who are likely to succeed in a claim against Grünenthal is not a matter that tells in favour of staying the proceeding on the ground that the Supreme Court of Victoria is not a convenient forum ” per Beach J at para 38.
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Authority of named representative Dr Hershall Cohen representative plaintiff. Dr Cohen's consent neither sought nor obtained by Oldham Naidoo Action dismissed as an abuse of process Court orders Oldham Naidoo to pay indemnity costs to the defendants
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Matthews proceeding Proceeding commenced without named representative’s authority Representative substituted for another Proceeding allowed to stand as regularly commenced and continued by ‘new’ representative
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Want to sign up? Slater and Gordon Maurice Blackburn
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