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8 Groups as parties

Of or arise out of the same similar or related

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of or arise out of the same, similar or related circumstances, and c) the claims of all those persons give rise to a substantial common issue of law or fact
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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
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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 .
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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.
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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?
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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.
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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”
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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.
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“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
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