Earlier Authorities
26 The earlier authorities are inconsistent: see [14] above. It is neither necessary nor appropriate for the Court to address each of those authorities. Much of the debate about what those cases in fact decided and what they have contributed to the jurisprudence of Pt IVA has proceeded from taking statements in those cases out of context and, in particular, divorced from the facts of the case and the specific issues being addressed by the Court at that time.
27 For present purposes, it is sufficient to make the following points about the two preceding decisions of the Full Court of the Federal Court that considered s 33C(1).
28 First, the decision in Philip Morris particularly at [107]-[137]. The facts cannot be ignored. The basis on which the case was argued cannot be ignored. Importantly, it was common ground that in order to satisfy para (a) of what the High Court described as the ''threshold requirements'' imposed by s 33C(1) of the FCA (Wong v Silkfield at [28]-[29]), "it was necessary that the applicants' pleading allege facts that establish that they and every member of the represented class have a claim against every respondent": Philip Morris at [108] and [126]. That state of affairs led Sackville J to record at [109] that perhaps because there was no dispute about that (and another question), the parties did not explore further the relationship between the procedural requirements of Pt IVA of the FCA and the general principles governing pleadings in the FCA. It is true that his Honour went on to address some of these questions. But his Honour did so having express regard to the fact that the parties in that appeal accepted, in our view incorrectly, that s 33C(1)(a) requires every applicant and represented party to have a claim against the one respondent or, if there is more than one, against all respondents. What is self-evident from the reasons for judgment is that the contrary argument (see [19]-[25] above) is not recorded and one is entitled to assume was not the subject of debate or argument before that Court. In short, the specific issue raised in these proceedings was not in issue in Philip Morris because it was not in dispute. If a point is not in dispute in a case, then the decision lays down no legal rule concerning that decision: Coleman v Power (2004) 220 CLR 1 at 44-4 cited in McBride at [7].
29 Next, the decision in Bray, particularly at [122]-[130] and [246]-[248]. Again, the facts cannot be ignored. The basis on which the case was argued cannot be ignored. The question this Court is asked to determine was addressed differently by the three judges. According to Carr J, the issue did not arise because as his Honour explained at [122]:
As I have held that each group member in this application has a relevant claim against all of the respondents, it is strictly not necessary for me to decide this question. However, I shall briefly express my views.
After analysing some of the authorities, his Honour considered two cases where there was more than one respondent but not all group members had a claim against all respondents. His Honour recorded that the problem was resolved quite simply: by way of a sub-group in one case, and in the other, by the joinder of additional applicants, each of whom had a personal claim against a particular respondent and was therefore competent to represent other group members who had claims against that respondent: at [127]-[128].
30 Carr J concluded at [129]-[130] by stating that:
In my view, such a course fits squarely with the language of s 33C(1) and at the same time satisfies the policy behind the introduction of Pt IVA.
There are sufficient procedural safeguards in s 33C(1)(b) and (c) to protect the integrity of the court's processes, ie that the claims arise out of the same, similar or related circumstances and give rise to a substantial common issue of law or fact. There are other procedural safeguards in Pt IVA to ensure that representative proceedings are not misused. For those reasons, were it necessary for me to decide the point, I would decline to follow Philip Morris to the extent that it is authority for the proposition that, where there is more than one respondent, every group member must have a claim against every respondent in a representative proceeding, on the basis that it was clearly wrong on that point.
31 Branson J dissented. Her Honour was not persuaded that Philip Morris was clearly wrong and considered that it should be followed by the Federal Court until the High Court took a different view of the proper construction of s 33C(1): at [199].
32 Finkelstein J considered "afresh" the true effect of s 33C(1): at [243]. After dismissing Philip Morris (correctly in our view), his Honour stated at [248]:
… I am of the very firm view that there is nothing in the language of s 33C(1), when considered in isolation or in its setting, which requires that result [that it is necessary for every applicant and every represented party to have a claim against all respondents if there is more than one respondent]. It is as well to recall the words of the section. Section 33C(1)(a) provides that "subject to this Part, where seven or more persons have claims against the same person … a proceeding may be commenced by one or more of those persons as representing some or all of them". It can immediately be acknowledged that a properly constituted representative proceeding must involve a group of seven or more persons each of whom has a claim or claims against one person. But that is all the section requires. It simply does not address the situation where some members of the group, say 10 out of a group of 15, also have claims (that is, causes of action) against some other person, being causes of action which satisfy both s 33C(1)(b) (each claim arises out of the same circumstances) and s 33C(1)(c) (each claim gives rise to common issues of law or fact). Is it necessary for the claims of this smaller group to be prosecuted in a separate proceeding or can they be joined in the proceeding brought by the larger group? I will not place a construction on s 33C which requires separate proceedings to be instituted. If it were impermissible to bring such an action, all the objectives of Pt IVA, the reduction of legal costs, the enhancement of access by individuals to legal remedies, the promotion of the efficient use of court resources, ensuring consistency in the determination of common issues, and making the law more enforceable and effective, would be undermined.
For the reasons set out at [19]-[25] above, we agree.
33 We do not accept that the proper construction of s 33C(1) requires that every group member has a claim against all respondents if there is more than one respondent.