Commencing proceedings s33c2 representative

Info icon This preview shows pages 24–32. Sign up to view the full content.

View Full Document Right Arrow Icon
Commencing Proceedings: s33C(2) Representative proceeding may be commenced whether or not: Damages are sought Even if damages require individual assessment Relief is the same for each person Separate transactions are involved
Image of page 24

Info icon This preview has intentionally blurred sections. Sign up to view the full version.

View Full Document Right Arrow Icon
Commencing Proceedings s33H: The Application must: Describe or otherwise identify the group members to whom the proceeding relates; Specify the nature of the claims made on behalf of the group members and the relief claimed; and Specify the questions of law or fact common to the group members. Not necessary to name the members or specify the number in the group .
Image of page 25
Opting Out s33J(1): court must fix a date before which a group member may opt out of a representative proceeding. s33X(1): group members must be notified that the proceeding has been commenced, that they have the right to opt out, and the deadline for opting out. s33J(2): group member may opt out by written notice before the date so fixed. s33J(3): court can extend opt out period. s33J(4): hearing of matter must not commence before the opt out period has expired w/o leave.
Image of page 26

Info icon This preview has intentionally blurred sections. Sign up to view the full version.

View Full Document Right Arrow Icon
Some issues in class actions Broad power of the court to regulate: s33ZF The trend: the multiplication of interlocutory disputes (constitutional challenges, questions of fairness, costs, funding, group definition) Do all members have to have a claim against all defendants?
Image of page 27
Philip Morris v Nixon (2000 FFC) Rep proceeding commenced on behalf of a group of people who suffered a disease caused by smoking, and claimed to have been induced to begin or continue smoking by the actions of one or more of the 3 tobacco companies they named as respondents.
Image of page 28

Info icon This preview has intentionally blurred sections. Sign up to view the full version.

View Full Document Right Arrow Icon
Philip Morris v Nixon (2000 FFC) Problem: conduct of respondents was not collective conduct. Three separate companies all running their own businesses, producing their own ads, all had same sort of product and same goal. Each smoked different brands, changed brands, induced to start and continue for different reasons. But all applicants didn’t have claim against all R’s. Ie “against the same person”
Image of page 29
Phillip Morris v Nixon (2000 FFC) Per Sackville J: If the individual claims of each member of the represented group had to be pleaded by reference to specific dates and events, the representative procedure might well be rendered ineffective for the very kind of group claim it is intended to facilitate. Each group member must have a claim against every respondent.
Image of page 30

Info icon This preview has intentionally blurred sections. Sign up to view the full version.

View Full Document Right Arrow Icon
“Rule” from Philip Morris v Nixon Heavily criticised and not followed in Bray v Hoffman-La Roche (2003) FCAFC 153 at [247] – [248]. Mixed response among single judges in Fed Crt as to which approach is binding law In Vic, Philip Morris v Nixon approach followed in Rod Investments v Adam Clark (2006 SCV).
Image of page 31
Image of page 32
This is the end of the preview. Sign up to access the rest of the document.

{[ snackBarMessage ]}

What students are saying

  • Left Quote Icon

    As a current student on this bumpy collegiate pathway, I stumbled upon Course Hero, where I can find study resources for nearly all my courses, get online help from tutors 24/7, and even share my old projects, papers, and lecture notes with other students.

    Student Picture

    Kiran Temple University Fox School of Business ‘17, Course Hero Intern

  • Left Quote Icon

    I cannot even describe how much Course Hero helped me this summer. It’s truly become something I can always rely on and help me. In the end, I was not only able to survive summer classes, but I was able to thrive thanks to Course Hero.

    Student Picture

    Dana University of Pennsylvania ‘17, Course Hero Intern

  • Left Quote Icon

    The ability to access any university’s resources through Course Hero proved invaluable in my case. I was behind on Tulane coursework and actually used UCLA’s materials to help me move forward and get everything together on time.

    Student Picture

    Jill Tulane University ‘16, Course Hero Intern