3.7 Such other order or orders under s87(1) of the Trade Practices Act and/or equivalent provisions in State and/or Territory Fair Trading Legislation, as the Court thinks appropriate as will compensate the Plaintiff, and other persons, in whole or in part for any loss or damage that has been suffered by them or will prevent or reduce any loss or damage that is likely to be suffered by them by the contravening conduct the subject of the foregoing declarations including, if the court thinks fit, an order that the moneys be paid into an appropriate fund for the benefit of the Consumers.
30 Counsel for the plaintiff accepted that if the pleading were amended so as to set out facts which, if proved, would establish the plaintiff purchased cigarettes on which tax was not remitted to government it is unlikely she would be able to prove those facts, although it is possible she might be able to do so on the balance of probabilities. The second matter is that it is accepted that the identity of all those persons the plaintiff purports to represent could not be established. Apart from anything else some would have died.
31 Counsel for the plaintiff while accepting these matters, argued that it is within the powers of the court to order that the fund be applied in some way for the benefit of consumers of tobacco products. Whether this was to reduce the cost of cigarettes over a period or for purposes such as "Quit for Life" would be left to the court to decide.
32 It is necessary to consider the claims in terms of s87(1). It is difficult to see how the plaintiff or the representative persons have suffered loss as a result of the wholesaler or retailer having acquired a windfall. After all, the plaintiff got what she purchased, as did the other consumers at a price that she and they were presumably ready to pay. The plaintiff's real case is not for an amount but for a fund, not to compensate purchasers, because it is accepted that they cannot be identified, but for some other good purpose for community welfare or consumer benefit. It has not been explained on what basis the court has any such power, even though some such orders might have been made in some jurisdiction in the United States of America, apparently based upon r23 relating to class actions in respect of practice in Federal Courts in that country.
33 Counsel for the plaintiff called in aid s11(1)(c) of the Jurisdiction of Courts (Cross-vesting) Act 1987. His purpose in doing so was to call up ss33Z(1)(f) and (2) and 33ZA of the Federal Court of Australia Act 1976. Those sections are not rules of evidence or procedure applied in a superior court. They are statutory provisions giving statutory powers and therefore s11(1)(c) of the Jurisdiction of Courts (Cross-Vesting) Act does not assist. In any event, the Federal Court of Australia Act sections apply only to representative proceedings under s33C of that Act and the present proceedings are not claims of seven or more persons against the same person. Section 33C(i)(a) Ryan v Great Lakes Council (1997) 78 FCR 309.
34 It is proper to say that the relief sought in the amended statement of claim does not in terms seek some court-administered fund unless paragraph 3.7 encompasses this. I have dealt with this only because of the earnest arguments presented by counsel for the plaintiff which were drawn in the most part from the discussions on available relief which appear in Newburg on Class Actions 3rd Edition, in particular Ch 10. Whatever may be the position in the United States of America there is no power in this Court to make orders for disposition of a fund other than to persons who establish an entitlement to compensation out of such fund. Notions based on cy-près analogies, escheat, fluid recovery and deterrent distribution are just that. On no basis are they within the remedies available under s87 of the Trade Practices Act.
Injunctive Relief
35 The plaintiffs' claim for an interim injunction up to the date of the hearing before me was dismissed by Palmer J. The plaintiffs filed a further motion returnable on 18 July with the defendants' motions seeking slightly wider relief. Insofar as the claim has been expanded this gives no ground for interim relief. The only claim left standing will be that of unjust enrichment as against the retailers. The undertaking of the wholesalers as to payment has expired. There is no basis for the separate determination sought in paragraph 2 of the plaintiffs' notice of motion.
Result
36 It follows that the claims in paragraphs 2D, 2F, 2G, 2H, 2I and 2K of the amended statement of claim should be dismissed. Paragraph 2E should be struck out with leave to replead against particular retailers.
Representative proceedings - should they continue as such?
37 The only claim remaining will be that for unjust enrichment. Nevertheless at the outset I deal with this question on the assumption my dismissal orders are incorrect. As I have explained the persons the plaintiff seeks to represent as at present defined would not necessarily encompass those persons whom I think it can be taken the plaintiff seeks to benefit. Those persons she seeks to benefit would, I consider, be persons with the same interests. The problem is that it is accepted that it would not be possible to identify the members of the class because no purchaser or retailer would know whether the tobacco purchased was tobacco upon which it was thought a tax was payable so that in a general way the purchase price reflected the tax which was not paid. It is accepted in Carnie v Esanda Finance Corporation Limited (1995) 182 CLR 398 that problems of identification do not of themselves prevent a representative action being brought. In addition, the fact that few if any purchasers would be able to establish some entitlement to a particular part of the fund, namely the part contributed by a particular retailer would not necessarily prevent the proceedings continuing as representative proceedings. Nevertheless, it has to be accepted there is no way that those class members could be notified because if an advertisement was published the consumer would not know whether he or she fell within the class description. If an "opt out" or "opt in" procedure were thought appropriate no consumer would know what to do. In addition no consumer, if able to prove on the balance of probabilities that some relevant purchase was made, would be able to establish entitlement to a particular sum. In most representative actions identification is not a problem. Purchasers of a particular financial product can easily provide proof that they are purchasers; persons who have been prescribed and used a particular drug can generally establish that fact; purchasers of a particular model of motorcar are readily identifiable. The issue in such cases is generally what damage a particular person has suffered as a result and the issue of whether or not a product is defective is the same for all the class. The fact that all members of a group described may not be identified or come forward is not a decisive matter because some may be able to be identified, but the fact that the consumers in this case do not know whether or not they fall within a description is, I consider, a factor which weighs heavily in considering the exercise of discretion.
38 I turn to the question of representative defendants. I accept that if the class of plaintiffs can be properly described - though not identified - then the class of retailers could be described but one relies on the other. However, different factual circumstances might apply to different retailers. For example there is no equivalent of s51AA in the South Australian Fair Trading Act 1987; claims by some retailers against wholesalers may be subject to particular defences by wholesalers by way of set off or otherwise; particular pricing arrangements, such as engaging in a discount war, may give rise to different considerations.
39 The claim of the plaintiff in all its manifestations before dismissal of most claims is based upon unjust enrichment, coupled with unconscionability. As I have explained the chances of particular persons being able to establish that five years ago they purchased tobacco from a particular retailer, which particular tobacco was not taxed, although the purchase price assumed it would be, is not great. A defendant ought not be expected to contribute to a fund unless there is a reasonably certain prospect of an individual claim against that particular contribution being brought forward and succeeding. Obviously representative orders relating to defendants ought not to be restricted to persons having joint or concurrent liability for the same claim but a claim for unjust enrichment requires that enrichment to be achieved at the expense of a particular person or persons. The plaintiff accepts that this is impossible to show. A defendant should not be required to contribute moneys to satisfy the claim of a representative plaintiff having no relationship with a particular representative defendant. The difficulty and, I think, the near impossibility of making and establishing particular claims makes it inappropriate to allow the action to proceed by or against represented parties. It follows that had I not considered most of the claims doomed to fail, I would have ordered that the action not proceed as a representative action. For the same reasons the claim remaining should not so proceed. It follows that the claims against the ninth and tenth defendants should be dismissed.
40 Orders