First Plaintiff v First Defendant

1 The first plaintiff, Papinder Singh brought proceedings in this Court[1] against Harvey Norman Holdings Ltd and Yoogalu Pty Ltd arising out of his purchase of a product called 'Product Care', which is in the nature of an extended warranty. The second plaintiff, Constantinos Daglas, originally issued proceedings against the same defendants in the Federal Court, based also on his purchase of Product Care.[2] Those proceedings were transferred to this Court[3] and on 29 May 2025, I made orders that the proceedings be consolidated and identified as Singh and Daglas v Harvey Norman Holdings Ltd & Anor (S ECI 2024 04990) (the Consolidated Proceeding).[4]

2 An application is brought by a group member in the Consolidated Proceeding, Mr Jonathan Wong, with the plaintiffs,[5] for an order pursuant to ss 33T(1) and/or 33ZF of the Supreme Court Act 1986 (Vic) that Mr Wong be substituted for Mr Singh as the first plaintiff in the Consolidated Proceeding.

3 The defendants in the Consolidated Proceeding do not consent to, nor oppose, the proposed substitution application.

4 On 23 June 2025, Mr Singh instructed his solicitors, Maurice Blackburn, that he no longer wished to proceed as a plaintiff in the Consolidated Proceeding.[6] His reasons for no longer wishing to continue were described in the plaintiffs' submissions as 'confidential and privileged'.[7] Some of the context for that description was provided on a confidential basis in the affidavit of Ms Vavaa Mawuli, the principal of Maurice Blackburn with carriage of the proceeding.[8]

5 The plaintiffs' proposed order is that Jonathan Wong be substituted for Papinder Singh as the First Plaintiff in this proceeding. Mr Wong acquired an oven, gas cooktop and a dishwasher from Nunavit Pty Ltd, the entity trading as Harvey Norman AV/IT Nunawading, and in connection with this, he acquired 'Product Care' extended warranties.[9] He acquired these goods and the Product Care on or about 29 April 2019. This is close to the start of the period of 18 September 2018 to 19 September 2024, which is the 'Claim Period' identified in the definition of Group Members during which Product Care must have been acquired.[10] This is the same Harvey Norman store as the store from which Mr Singh was alleged, in the existing statement of claim, to have acquired goods and 'Product Care'.

6 On 21 July 2025, Mr Wong instructed Maurice Blackburn that he wished to be substituted for Mr Singh and executed a retainer and costs agreement with Maurice Blackburn for this purpose.[11]

7 The plaintiffs, who were due to file a consolidated statement of claim by 22 July 2025, have prepared a draft consolidated statement of claim referring to Mr Wong in lieu of Mr Singh, and Mr Daglas, in anticipation of the substitution application being granted. That pleading sets out the alleged facts on which Mr Wong's claim is based and was provided to the Court in unsealed form.[12]

8 The plaintiffs rely, for the making of a substitution order, primarily on the power conferred by s 33T(1) of Part 4A of the Supreme Court Act, and alternatively on s 33ZF. The plaintiffs also noted s 33Z(1)(g) as a possible source of power, based on the authorities, but did not place specific reliance on it.

9 Section 33T(1) is the section specifically dealing with substitution of a plaintiff, and provides:

(1) If, on an application by a group member, it appears to the Court that the plaintiff is not able adequately to represent the interests of the group members, the Court may substitute another group member as plaintiff and may make such other orders as it thinks fit.

10 The alternative sources of power are more general sources of discretionary power conferred on the Court in the context of representative proceedings. Section 33ZF provides:

General power of court to make orders

In any proceeding (including an appeal) conducted under this Part the Court may, of its own motion or on application by a party, make any order the Court thinks appropriate or necessary to ensure that justice is done in the proceeding.

11 Section 33Z(1)(g) states:

Judgment of the Court

(1) The Court may, in determining a matter in a group proceeding -

...

(g) make such other order as is just, including, but not restricted to, an order for monetary relief other than for damages and an order for non-pecuniary damages.

12 The plaintiffs submit that the primary power in s 33T(1) applies, on the basis that a plaintiff who has instructed that he does not wish to remain in the position of representative plaintiff is 'not able adequately to represent the interests of the group members' within the meaning of that section. The Court should not force an unwilling plaintiff, who holds a crucial role, to remain as the representative in the proceeding as it is questionable whether that plaintiff can adequately represent group members' interests. Further, an unwilling plaintiff cannot be forced to remain a plaintiff.[13]

13 The power in s 33T of the Federal Court of Australia Act 1976 (Cth), which is in materially the same terms as s 33T of the Supreme Court Act, has been considered on several occasions.

14 In Carpenders Park Pty Ltd (as trustee of the Carpenders Park Pty Ltd Staff Superannuation Fund) v Sims Limited (Application to substitute applicant),[14] Rares J considered s 33T in the context of an applicant who had advised its instructing solicitors that it no longer wished to act as the representative party.[15] Justice Rares recognised that an unwilling applicant 'cannot be forced to remain as an applicant, whatever its reason or lack of reason for not wishing to remain the representative party'.[16] His Honour observed that '[t]he structure of Pt IVA of the Federal Court Act is concerned to ensure that members of the group have appropriate attention given to their interests throughout the processes of the Court determining the common questions'.[17] The same observation can be appropriately made of Part 4A of the Supreme Court Act, as applicable to this proceeding, as it is in very similar form to Part IVA of the Federal Court of Australia Act.

15 In Lewis v Philips Electronics Australia Ltd t/a Philips Healthcare[18], the then representative applicant did not wish to continue as the representative party and so sought to withdraw as the applicant and have a group member substituted in his place. Justice Murphy took a broad view of the power to order substitution conferred by s 33T of the Federal Court of Australia Act. Relevantly, his Honour expressed his agreement with the observations of Lee J in Perera v GetSwift Ltd[19] that 'a representative who is not and cannot conduct the proceeding in the interests of group members has demonstrated an inability adequately to represent those group members', and observed that an:[20]

...unwillingness to continue to undertake the important obligations of a representative party directing large and complex class action litigation may mean that group members' interests in the litigation are not adequately represented. The Court should not force an unwilling person to remain in that important role.

16 In Lewis, Murphy J expressed the view that a substitution order could also be made pursuant to s 33ZF(1) or s 33Z(1)(g) of the Federal Court of Australia Act.

17 A potentially more confined view of s 33T of the Federal Court of Australia Act was expressed in Auskay International Manufacturing & Trade Pty Ltd v Qantas Airways Limited.[21] In that case the applicant proposed that two other companies be substituted as representative applicants in the representative proceeding. Their counsel 'accepted that the Court's power to make an order for the substitution of applicants was not to be found in either ss 33T or 33W', for reasons which were not further explained, but potentially because the substitution application was made by the applicant itself, rather than by a group member as contemplated by the opening words of s 33T(1). Justice Tracey expressed his view that the Court had the power to make the substitution orders pursuant to s 33Z(1)(g) and order 6 of the Federal Court Rules in force at the time, relating to removal and addition of parties to a proceeding.[22]

There is power to order substitution in this case

18 Section 33T(1), in my view, readily encompasses the circumstances in which a representative plaintiff in a group proceeding has expressed unwillingness to continue as the plaintiff. A person who is unwilling to have the status of plaintiff, which involves giving instructions throughout the proceeding, is unlikely to adequately represent the interests of group members. Plainly a plaintiff who no longer wishes to bring proceedings cannot be forced to do so, and this remains the case with a plaintiff who is a representative plaintiff in group proceedings, even if they may remain a member of the group as defined following substitution.

19 In the present case, the application is made by a group member, Mr Wong, with the support of the plaintiffs, so no issue arises whether the application has been properly made as contemplated by the terms of s 33T.

20 In circumstances where the plaintiff is unwilling to continue, I also consider it would be open to make the substitution order under s 33ZF, as an order substituting a person who is willing to be plaintiff and to represent the interests of group members would be appropriate or necessary to ensure that justice is done in the proceeding.

21 It is less apparent to me that the power conferred on the Court by s 33Z(1)(g) would empower the making of an order for the substitution of a plaintiff. That discretionary power arises 'in determining a matter in a group proceeding' and is 'to make such other order as is just, including, but not restricted to, an order for monetary relief.' Although a very broad power, when read in context of the s 33Z(1) chapeau is directed to the Court's powers on 'determining a matter' in a group proceeding. In the context of the examples provided in subsection (1)(g) which relate to relief, this discretionary power appears intended primarily to relate to matters of relief arising at judgment on the determination of the proceeding or at least a substantive component of it, rather than a purely procedural issue.[23] The heading for that section - 'Judgment of the Court' - is not part of the Act,[24] but to the extent that there is any ambiguity in the scope of the discretion in s 33Z(1)(g), it is open to have regard to the heading in construing that section.[25] The heading confirms the view that the s 33Z(1)(g) discretion is intended to arise in connection with judgment on a matter.[26]

22 It is not necessary for me to express a final view on s 33Z(1)(g) given the independent sources of power to make a substitution order in s 33T(1) and 33ZF. However, I do observe that the subsection does not comfortably encompass the making of a procedural order relating to the composition of the proceeding as opposed to its determination. Further, in circumstances where there is a specific section facilitating substitution of a plaintiff in a particular circumstance (s 33T), it may not be appropriate to construe the general terms of s 33Z(1)(g) as conferring a broad discretion to enable substitution of a plaintiff which is not subject to any such qualification.

23 It is then necessary to consider whether it is appropriate to exercise the powers under s 33T(1) or s 33ZF to make a substitution order in the circumstances of this case.

24 The plaintiffs submit that the substitution of Mr Wong for Mr Singh is appropriate for the following reasons:[27]

(a) the substitution will involve minimal disruption to the current framework and agency agreement, which includes a Cooperative Litigation Protocol, between Maurice Blackburn and Echo Law, where Mr Wong will replace Mr Singh and be bound by the Cooperative Litigation Protocol; and

(b) the defendants will not suffer any real prejudice by the proposed substitution.

25 In this case, a specific consideration arises as to the necessity for the substitution of any plaintiff, in circumstances where following the orders consolidating this proceeding, there is already a second plaintiff, Mr Daglas. The plaintiffs submit that the substitution of a plaintiff for Mr Singh would be consistent with the effect of the consolidation orders, and that there would be a benefit to ensuring that there remain two representative plaintiffs in the proceeding (and conversely a disadvantage should Mr Daglas be the only plaintiff). This arises because two plaintiffs provide a better opportunity to have the issues in the case determined across the Claim Period, which will promote the resolution of common questions and issues.

26 In particular, it is said that the proposed consolidated statement of claim has been prepared on the basis that there are two lead plaintiffs whose circumstances as pleaded enable the testing of the 'Sales Process' which is pleaded across the Claim Period, and the terms and application of Product Care across different goods:

(a) The proposed consolidated statement of claim pleads at [23] that Harvey Norman Entities, including Harvey Norman in Nunawading (where Mr Wong, and Mr Singh, acquired the goods and the Product Care) and Darwin (where Mr Daglas acquired the goods and Product Care) were required by one or both of the defendants to 'sell Product Care to consumers, and did sell Product Care to consumers ... in a process that included' specified features. This is defined as the Sales Process. The facts of the Sales Process as applicable to Mr Wong in April 2019 and Mr Daglas in November 2023 and March 2024 are then later pleaded.[28] The claims of group members are then related back to the Sales Process.[29] Common question 8 is identified as:

Did the Harvey Norman Retail Entities sell Product Care to the Plaintiffs and Group Members, whether in person at Harvey Norman Stores, over the telephone or through the Harvey Norman Websites, in a process that included the features pleaded as the Sales Process?

(b) It is also pleaded that during the Claim Period (defined as the period between 18 September 2018 and 19 September 2024), the terms and conditions of Product Care were contained in the brochures pleaded in Schedule A to the statement of claim (Product Care Terms and Conditions).[30] Schedule A sets out the brochures which were provided at particular times throughout the Claim Period. Mr Wong and Mr Daglas are pleaded to have each received different brochures setting out the Product Care Terms and Conditions.[31] The group members' claims are again related back to the pleading of the Product Care Terms and Conditions.[32]

27 I accept that there is a benefit in having two representative plaintiffs, as contemplated in the original consolidation application, because it does enable some additional testing of the case through the litigation of the claims of the two separate plaintiffs. Each plaintiff purchased at a different store, at times nearing the start and the end of the Claim Period. That may not of itself enable an exhaustive testing or determination of common question 8, which pleads a question relating to the features pleaded as the Sales Process, across the entire Claims Period. It will, however, enable some testing of whether there was a sales process with consistent features as pleaded.

28 I accept, therefore, that there is utility in replacing Mr Singh as first plaintiff notwithstanding that Mr Daglas remains as second plaintiff.

29 The main remaining question is whether the substitution would cause any prejudice to the defendants. The defendants have not identified any, at the hearing or otherwise, and they do not oppose (nor consent to) the application. I accept that at this early stage of the proceeding, when the consolidated statement of claim is prepared but yet to be filed and the defendants have not yet had to file a defence, there will be minimal inconvenience caused in a procedural sense. While the defendants may have commenced taking instructions on the claims, the Harvey Norman store at which Mr Wong is alleged to have purchased goods and Product Care is the same store as that at which Mr Singh was pleaded to have made the relevant acquisitions. This may mean that investigations already made into the pleaded circumstances will continue to serve some purpose.

30 The other potential prejudice relates to costs. The plaintiffs submit that the substitution will have no adverse impact on the defendants' position with respect to costs,[33] because:

(a) the plaintiffs propose to pay the defendants' costs thrown away in consequence of any substitution order, as well as by reason of the filing of the consolidated statement of claim which will reflect Mr Wong's claim as the substituted plaintiff;[34]

(b) the defendants will be provided with the costs protection by the substitution order being made on conditions that Mr Wong as the substitute first plaintiff and Mr Dalgas will be jointly liable to the defendants for any costs order made against Mr Singh as the first plaintiff prior to substitution;[35] and

(c) Mr Wong is indemnified by Maurice Blackburn with respect to any liability to pay the defendants' costs.[36]

31 I am satisfied that the proposed orders, in combination with the indemnity provided to the plaintiffs by Maurice Blackburn, will protect the defendants' position with respect to costs and they will not suffer any costs prejudice by reason of the proposed substitution order. I note in this respect that the proposed orders on costs are substantially to the effect of those made by Justice Nichols in conjunction with an order for substitution of a plaintiff in Crawford v Australia and New Zealand Banking Group Ltd.[37]

Conclusion - it is appropriate to make the orders sought

32 The Court has power under s 33T(1) and s 33ZF, in the circumstances set out in the affidavits before the Court, to make an order substituting Jonathon Wong for Papinder Singh as the first plaintiff in this proceeding. I am satisfied that it is appropriate to make that order, and the related orders with respect to costs.

33 The first plaintiff also seeks confidentiality orders over paragraphs 7 and 8 of the affidavit of Vavaa Mawuli affirmed 24 July 2025[38] pursuant to s 33ZF of the Supreme Court Act and/or r 28.05(4) of the Supreme Court (General Civil Procedure) Rules 2015 (Vic). These are the paragraphs which describe the context of the first plaintiff's instructions that he no longer wished to proceed as a plaintiff in the proceeding. I am satisfied that the content of those paragraphs are appropriately described as confidential and privileged[39] and will make the confidentiality orders sought.

34 The plaintiffs also sought amendments to certain procedural orders made by the Court following the consolidation application. Some of those orders have not been complied with given the need to have the application for substitution of the plaintiff determined. It is appropriate to vary those procedural orders as sought.

[1] Singh v Harvey Norman Holdings Ltd & Anor (S ECI 2024 04990).

[2] Federal Court proceeding VID943/2024 Constantinos Daglas v Harvey Norman Holdings Ltd & Anor.

[3] Constantinos Daglas v Harvey Norman Holdings Ltd & Anor (S ECI 2025 01528).

[4] Singh v Harvey Norman Holdings Ltd; Daglas v Harvey Norman Holdings Ltd [2025] VSC 290.

[5] To whom I refer jointly as the plaintiffs in this ruling, for convenience.

[6] Third Affidavit of Vavaa Mawuli affirmed 24 July 2025 (Third Mawuli Affidavit), [9].

[7] Plaintiffs' outline of submissions on substitution dated 18 August 2025, [4]; Third Mawuli Affidavit, [5].

[8] Third Mawuli Affidavit, [7]-[8].

[10] Third Mawuli Affidavit, Exhibit VM-3, pp 30-124 (Proposed Consolidated Statement of Claim, [8]).

[11] Plaintiffs' outline of submissions, [6].

[12] Third Mawuli Affidavit, Exhibit VM-3, pp 30-124.

[13] Plaintiffs' outline of submissions, [10].

[14] [2021] FCA 984.

[15] Carpenders Park Pty Ltd (as trustee of the Carpenders Park Pty Ltd Staff Superannuation Fund) v Sims Limited (Application to substitute applicant) [2021] FCA 984, [5].

[16] Carpenders, [19], following Tongue v Tamworth City Council [2004] FCA 1702; (2004) 141 FCR 233, 238 [37] (Jacobson J) and Oasis Fund Management Ltd v Royal Bank of Scotland NV [2010] NSWSC 584, [24] (Biscoe AJ).

[18] [2023] FCA 1486.

[19] [2018] FCA 732; (2018) 263 FCR 1, [361].

[20] Lewis v Philips Electronics Australia Ltd t/a Philips Healthcare [2023] FCA 1486, [20], [32].

[21] [2010] FCA 1302 (Tracey J).

[22] Auskay International Manufacturing & Trade Pty Ltd v Qantas Airways Limited [2010] FCA 1302, [9].

[23] I note that s 33Z(1)(g) in the Federal Court of Australia Act 1976 does not include these examples, and simply refers to the Court's power to 'make such other order as the Court thinks just'. This may explain why Murphy J in Lewis (at [21]-[22]) and Tracey J in Auskay (at [9]) considered that it was a source of power to substitute a group member as the representative party.

[24] Section 33Z in Part 4A having been inserted into the Supreme Court Act 1986 in 2000, by Act 78/2000, Interpretation of Legislation Act 1984 (Vic) s 36(2A).

[25] Interpretation of Legislation Act 1984 s 35(b)(i). See Supreme Court Act 1986 (Vic) Authorised Version No 111.

[26] The issue of whether s 33Z(1)(g) would empower procedural orders in the course of a group proceeding (rather than in the context of the determination of, or judgment on, the proceeding) did not arise in Kain v R&B Investments Pty Ltd [2025] HCA 28 as the question involving s 33Z(1)(g) related to the powers of the Federal Court to make orders upon the settlement of, or judgment in, a representative proceeding: [3] (Gageler CJ), [34] (Gordon, Steward, Gleeson and Beech-Jones JJ). However it was observed that s 33Z, like s 33V, was 'concerned with a representative proceeding coming to an end': [60]; see also [69] (Gordon, Steward, Gleeson and Beech-Jones JJ).

[27] Plaintiffs' outline of submissions, [11(a)]-[11(d)].

[28] Proposed Consolidated Statement of Claim, [44]-[49], [55]-[68].

[29] Proposed Consolidated Statement of Claim, [75]-[76].

[30] Proposed Consolidated Statement of Claim, [26]-[28].

[31] Proposed Consolidated Statement of Claim, [50]-[51], [69]-[71].

[32] Proposed Consolidated Statement of Claim, [77]-[78].

[33] Plaintiffs' outline of submissions, [11(d)].

[34] Summons filed by group member, Mr Jonathan Wong on 6 August 2025, proposed order 10.

[36] See Affidavit of Vavaa Mawuli affirmed 10 April 2025, Exhibit VM-1, 90 (Revised Costs Sharing Agreement, which I was told by counsel for the plaintiffs had been executed shortly after the consolidation orders).

[37] Orders of Nichols J made on 2 August 2022 in Supreme Court Proceeding S ECI 2020 03365.

[39] As described in the Plaintiffs' outline of submissions, [4].