the batten proceedings
2 The applicant brings these proceedings on behalf of about 56 others, persons who were recruited to be trained in stevedoring work (the "Dubai Group"). I have outlined the general nature of the claim in previous decisions, but it is necessary to do so briefly again.
3 The applicant alleges that Mr Corrigan, of the Lang companies, at all relevant times had the objective of replacing the companies' union workforce with non-union labour. There followed an agreement with others to recruit and train persons as stevedores. In that process it is alleged that those recruiting were instructed by Mr Corrigan to inform potential recruits, as they did, that (summarising paragraph 17 of the statement of claim):
(a) there would be an excellent career for them;
(b) it was a job for life;
(c) it was a permanent position;
(d) employment was with a stevedoring company offering services and competition with other companies.
4 It is also alleged that there were no reasonable grounds for making such representations. The representations are said to have been made in advertisements, orally and at recruitment meetings. It is alleged that Mr Corrigan and others were knowingly concerned in the making of those representations. The applicant claims loss, having given up his employment to take up the position offered. Statements of all of the group members concerning the issue of reliance have been filed pursuant to a previous direction.
5 The applicant's case is that the Lang respondents' plan was to use the recruits as a replacement non-union workforce and that this would have operated as a strong disincentive to potential recruits. The omission of any reference to the plan, from the directions given concerning the representations to be made to possible recruits, implies that the recruiters were not to tell them and it is alleged they were complicit in this. I understand the pleading to say that, without that information, the representations were misleading and deceptive. Approached as a future representation, the applicant is saying that, given the plan and what it involved, there could have been no basis for Mr Corrigan and the others believing that the representations could be made good. That is to say, the representations were intended only to be inducements.
6 The Lang respondents (referred to in the pleadings as "the Patrick Companies") now apply to have the proceedings struck out as representative proceedings for non-compliance within s 33C(1)(c) of the Federal Court of Australia Act 1976 (Cth) or pursuant to s 33N.
7 The application identifies the following as the issues of law or fact common to the claims of the group members for the purposes of s 33C(1)(c):
1. Whether the first, second, third or fourth respondents made the representations pleaded in paragraph 17 of the statement of claim;
2. Whether the representations constituted misleading and deceptive conduct within the meaning of that term as used in the Act;
3. Whether the applicant is entitled to relief for a breach of the Act;
4. Whether the third, fourth, tenth, eleventh, twelfth, thirteenth, fourteenth, fifteenth, sixteenth, seventeenth, eighteenth, nineteenth, twentieth, twenty-first, twenty-second, twenty-third, twenty-fourth and twenty-fifth respondents were knowingly concerned in the contravention within the meaning of section 75B of the Act."
8 The Lang respondents submit that if representations are relied upon as providing the common issues of fact, they have to be the same and to have been made in the same circumstances. What is involved here, it is submitted, is a number of different cases grouped together.
9 In order to make this out, the respondents undertook an analysis of the group members' reliance statements. From it they identified twenty-seven group members who saw an advertisement, but noting that none of them said that they relied upon it; fifty-two who identified the representation in paragraph 17(d), which spoke of a new company functioning in competition with others; twenty-nine of the group members identified the representation in 17(b), that it was a job for life; nine identified the representation as to the permanency of the position; and eight of them, the representation concerning the provision of an excellent career. These figures were amended somewhat by a later submission that some group members had not identified a representation at all. The general picture however is that most group members are said to have been told that the company to hire them was to compete on the waterfront, which might imply that it was a new company in this area; and that they were also told something which implied security, if not permanency, in the employment offered. The respondents point to thirty or forty different occasions when the representations, or a combination of them, were made. Many of them occurred in a meeting, or interview, between a group member and a recruiter and not in large-scale recruitment meetings.
10 A consideration of the statements of the group members said not to have identified any pleaded representations shows the respondents' analysis to be unduly restrictive, to say the least. In any event it seems to me that, whilst those group members' claims may be affected if they do not establish something approximating what is pleaded, they are not relevant to the larger question - whether the proceeding is truly representative.
11 The applicant does not accept the Lang respondents' analysis of the group members' statements and will contend at the trial that each of them shows each group member to have received each of the representations. Much, it is submitted, will be a matter of the impression to be gleaned by the Court of the evidence. I have however proceeded on the basis that the respondents may be able to show some lack of coincidence in the representations made. Even so, it seems to me, the respondents' case fails to recognise the common factual areas in the events leading to the making of the representations and these are sufficient for the purposes of s 33C(1)(c).
12 In Wong v Silkfield (1999) 199 CLR 255, it was held that it is not necessary that an issue be a core issue, or that it have a major impact on the litigation, for it to be seen as a common issue (at 266- 268), but rather that it be "real or of substance". The objectives of the representative procedure in Part IVA of the Act include the reduction of costs and the promotion of efficiency in the use of the Court's resources. A proceeding which reduces a substantial amount of evidence which would need to be tendered and considered in a large number of cases would come within that objective.
13 The respondents relied upon the decision of Emmett J in Murphy v Overton Investments Pty Ltd [1999] FCA 1123, and his Honour's observation at [73] that, where a critical question in a case is whether a particular representation is misleading, it will be necessary to show that the same representation was in fact made to all group members in virtually identical circumstances. His Honour's decision pre-dates that of the High Court in Wong v Silkfield. His Honour applied the decision of the Full Court in Silkfield v Wong (1998) 159 ALR 329, which had held that an issue needed to be at the core of the dispute before it could be regarded as substantial. Nevertheless, in a case where the only common issue is whether particular representations could themselves be misleading and deceptive, practical considerations would seem to me to require that they be substantially the same before the issue could be said to be "common", let alone substantial.
14 In the present case however it is factors which are said to give the representations the quality of being misleading and deceptive which are said to be common. They arise from the plan or objective of Mr Corrigan and the instructions given and carried out, as outlined in par [5] above. It does not matter whether all or only some of the representations were made to group members, because the focus of the case is upon what was not said. This would colour the representations, alone and together. The evidence to be led by the applicant on these matters will be the same in each case, and a determination of them may provide a basis for the resolution of the questions as to whether the representations were likely to have been made and as to the quality of the conduct. It may also go some way towards a conclusion as to whether reliance was likely to have been placed upon the representations.
15 In his application the applicant did identify, as one of the issues said to be common, the question whether the representations amounted to misleading and deceptive conduct. The claim that the making of the representations involves a common issue awaits resolution at trial. The remaining two claims listed there would not seem to me to identify a common or substantial issue. That in par 3 refers only to the relief which each group member might be entitled to. Paragraph 4 refers to accessorial liability which would not arise for consideration unless the principal claim was made out. It is to those proceedings that one should then turn when considering whether efficiencies might be achieved.
16 In the applicant's written and oral submissions the issues concerning the nature of the conduct were identified with greater precision. The application needs to be amended to identify them and this may give rise to questions of costs. I shall return to that topic later.
17 My view as to the practical effect of determining the issues identified in these proceedings largely resolves the question whether it is appropriate that the proceeding continues as a representative one under s 33N. The Lang respondents also submit, in that connexion, that it would be inappropriate for it to continue because it can be seen that some group members were also representors. This may be seen from the schedules to the statement of claim, which were furnished some time ago. This may add another factor to the case, if their authority to do so or other legal basis for liability is challenged by the respondents, but it does not seem to me to bear upon the question whether the proceedings are appropriate as representative proceedings.