The power to make the orders concerning interrogatories
5 As to the source of power to make the orders, GIO relied on s 33ZF of the Federal Court of Australia Act 1976 (Cth) ("the Act"), the observations of Wilcox J in McMullin v ICI Australia Operations Pty Ltd (1998) 84 FCR 1 and the course adopted by Dowsett J in a matter in which judgment was given on 9 March 2001 on the question of liability: see Hurley v McDonald's Australia Ltd [2001] FCA 209. In McMullin v ICI Australia Operations Pty Ltd,Wilcox J considered the power of the Court to make an order closing the class. The issue arose after the Court had determined the common questions concerning liability and was in the process of determining what damages, if any, members of the group might be awarded. At that point, his Honour had made orders under s 33Q(2) of the Act constituting 16 sub-groups of particular persons who were maintaining claims for damages of a comparatively small sum and had delegated the assessment of damages for those groups to a Registrar. Nonetheless there remained for determination the damages claims of other members of the group, though there was no certainty as to precisely who constituted the entire group. It was in this context that the issue of closing the class arose. On the question of power to make such an order his Honour said (at 4):
Section 33ZF confers a wide and general power on the Court. That section provides:
"(1) In any proceeding (including an appeal) conducted under this Part, the Court may, of its own motion or on application by a party or a group member, make any order the Court thinks appropriate or necessary to ensure that justice is done in the proceeding.
(2) Subsection (1) does not limit the operation of section 22."
Section 22 of the Act is concerned with remedies. But I do not think this reference limits the generality of s 33ZF(1). If the subsection had been intended to be limited to orders by way of remedy, it would have been unnecessary; s 33Z(1)(g) would have already conferred the necessary power.
Section 33ZF appears in Division 6 of Part IVA which is headed "Miscellaneous". It bears the marginal note "General power of Court to make orders". These two features support the conclusion, that would in any event arise from its wording, that s 33ZF(1) was intended to confer on the Court the widest possible power to do whatever is appropriate or necessary in the interests of justice being achieved in a representative proceeding. It is understandable Parliament should have thought it appropriate to make such a provision. In enacting Part IVA of the Federal Court of Australia Act, Parliament was introducing into Australian law an entirely novel procedure. It was impossible to foresee all the issues that might arise in the operation of the Part. In order to avoid the necessity for frequent resort to Parliament for amendments to the legislation, it was obviously desirable to empower the Court to make the orders necessary to resolve unforeseen difficulties; the only limitation being that the Court must think the order appropriate or necessary to ensure "that justice is done in the proceeding".
I think an order fixing a date by which claimants must identify themselves is capable of falling within s 33ZF(1). The criterion "justice is done", involves consideration of the position of all parties. An order preventing unfairness to a particular party may be necessary to ensure justice is done in the proceeding.
6 The orders made by his Honour were in the following terms:
1. The Applicants on or before 30 June 1998 at the reasonable cost of the Respondents send by prepaid post to each person listed on a Department of Primary Industry or the Department of Agriculture data base as having had CFZ residues in cattle other than a person:
(a) listed only as having residues <0.1 ppm; or
(b) who is a person on the identified list of applicants referred to in paragraph 3; or
(c) whose claim has been settled or heard,
a notice in the form "A" annexed to these Minutes.
2. The Applicants on or before 30 June 1998 at the reasonable cost of the Respondents place on two occasions quarter page advertisements in the form "B" annexed to these Minutes in each of "The Land" and "Queensland Country Life" newspapers.
3. The solicitors for the Applicants file and serve on or before 16 June 1998 a list of the names and addresses of each person who has engaged them to seek compensation in this proceeding who claims to be entitled to compensation under the judgment given on 24 June 1997 whose claim has not been settled or been heard.
It can be seen that his Honour's orders do not, in terms, dismiss or stay an individual "claim". While it does not appear in the reported version of his Honour's judgment, the notices sent to the group members (annexure A) and inserted into the newspapers (annexure B) had, as part of their heading, a statement "IF YOU DO NOT COMPLY WITH THIS NOTICE YOU MAY LOSE YOUR RIGHT TO COMPENSATION". In the body of the notice was a statement "if you do not give such notice [a notice in writing to the Registrar of the Court by 31 August 1998 indicating a desire to pursue compensation] you will not be entitled to pursue compensation for chlorfluazuron contamination". Each notice concluded with a statement "IF YOU DO NOT GIVE NOTICE BY 31 AUGUST 1998 YOU WILL LOSE ALL YOUR RIGHTS TO COMPENSATION". One can assume, as a practical matter, the orders together with the notices closed the class.
7 However by adopting this scheme, his Honour did not have to confront whether an order could be made staying or dismissing claims of individual group members in circumstances where the proceeding was still a representative proceeding. That is not to say, however, that the scheme adopted by his Honour could not have later been perfected (if it was then thought necessary) by an order "otherwise dismissing" the representative proceeding. That could have been done, pursuant to s 33Z(1)(g), after a declaration of liability was made or liability was otherwise determined in relation to any individual claim (under s 33Z(1)) and, if liability was established, an award of damages made for an individual claim (under s 33Z(1)), in relation to the claims of those group members who did give notice by 31 August 1998. Such an order would have meant that the representative proceeding, insofar as it related to claims of group members who did not give notice by 31 August 1998, was dismissed. Those members would have been bound by that order by operation of s 33ZB.
8 The approach adopted by Dowsett J in Hurley v McDonald's Australia Ltd was to make an order which was, in substance, the same as the order proposed by GIO in this proceeding concerning the compulsory questionnaire. The questionnaire sent to the members of the group in that case was described, in the orders as interrogatories. The orders included an order that "the claim" of any member of the group who did not cause a completed and signed questionnaire to be returned would be permanently stayed with effect from a specified date without further order unless otherwise ordered. His Honour, so far as I am aware, did not publish reasons at the time for adopting this approach and, in particular, explaining how power to make the order arose and the consequences of non-compliance (though in his final judgment of 2 June 2000, his Honour explained the rationale for the scheme). GIO has, in this proceeding, exhibited the transcript in which his Honour was asked to make these orders. Counsel for the respondent seeking the orders identified s 33Q and s 33ZF as possible sources of power, though it is not entirely clear whether his Honour accepted that one or both sections conferred power to make the orders, or which if only one. It is fairly clear from the transcript (which was confirmed in his Honour's final judgment) that the order was sought for a particular purpose. It was to require members of the representative group to commit themselves to an account of the circumstances in which they obtained the critical games stamps before evidence was given by named claimants or at least before that evidence was evaluated in a judgment. The respondent wasconcerned, and his Honour accepted, that the evidence of a significant number of members of the group (which totalled 5,000) might be tainted if, when they came to give evidence, they were aware of the evidence of the claimants or how it had been evaluated.
9 In the present case (and also in Hurley v McDonald's Australia Ltd), it would appear that the order resulting in the staying of "the claim" of any individual group member who does not reply to the compulsory questionnaire, is intended to be an inducement to group members to answer, or putting it slightly differently, a sanction if they do not. For my part, and with respect to Dowsett J, I doubt that the Court has power to make such an order even accepting the undoubted width of s 33ZF. The whole scheme of Part VIA of the Act is that, ordinarily, there is one proceeding, at least until common issues are resolved, and that the members of the group are not parties to that proceeding. The representative party or parties prosecute the proceeding on behalf of the group. As I discussed in my judgment of 11 July 2002 at [37]-[38] and Sackville J later discussed in Courtney v Medtel Pty Ltd [2002] FCA 957 at [33]-[36], the legislature adopted, in the face of an Australian Law Reform Commission recommendation to different effect, a scheme in which there is not a discrete proceeding maintained on behalf of each member of the group at least until common issues are resolved (assuming the matter continues as a representative proceeding until then). That is, there is not a discrete proceeding in relation to any particular "individual claim". Nonetheless, it is comparatively clear the scheme contemplates that "individual claims" are not entirely subsumed by the representative proceeding as illustrated by s 33ZE which provides that the running of a limitation period affecting the "claim" of a group member is suspended while, in effect, the representative proceeding remains unresolved (or the individual opts out).
10 What then might be comprehended by an order that a "claim" of a group member be stayed? As Lindgren J noted in Australian Competition and Consumer Commission v Giraffe World Australia Pty Ltd (1998) 84 FCR 512 at 523:
…whatever the word "claims" in the provision (s 33(1)(c)) denotes, they have an existence independent of, and antecedent to, the commencement of the proceeding, since it is only if seven or more persons have claims against the same person that the proceeding under Pt VIA may be commenced….
The word "claim" has been described as "encompass(ing) everything that might lawfully be brought before the Court for a remedy": see Finance Sector Union of Australia v Commonwealth Bank of Australia (1999) 94 FCR 179 at 187 and the discussion in an earlier judgment in this matter at (2000) 100 FCR 209 at 221-223. While it is a word of wide meaning and is not limited to a cause of action, it nonetheless possible to view it as an aggregation of potential rights that might be vindicated in a proceeding brought under Pt VIA. For my part, I find it difficult, in a conceptual sense, to conceive of an order staying a claim understood in this way which had any legal effect while the representative proceeding continued. Ordinarily orders are made staying proceedings or orders either temporarily or permanently. The stay order operates on the proceeding or on the order by suspending or postponing the proceeding or order: Bunnings Forest Products Pty Ltd v Bullen (1994) 54 FCR 342.
11 Perhaps an order staying a "claim" would preclude an order under s 33Q, s 33R or s 33S facilitating the determination of the individual group member's claim for damages (involving determination of causation and loss) after (and assuming) common issues concerning liability had been determined in the representative party's favour. If so, one might doubt the power of the Court now to foreclose the exercise of the discretionary power conferred by those sections by a stay order made for a collateral purpose (to induce answers to a questionnaire). The proposed stay order is "the claim…be permanently stayed, unless otherwise ordered, without further order from 28 February 2003" which appears to contemplate a modification of the stay order by further order, but for what purpose and with what legal effect is not clear. It may be accepted that in the notice to accompany the compulsory questionnaire GIO proposes to send group members, it is said that the effect of the order is that no further steps could be taken in relation to the individual claim unless, upon application, the individual group member explained to the Court why the compulsory questionnaire was not filled out and returned (and even then there is the caveat that "there is no certainty that if you presented an explanation to the Court that you would be able to proceed with your claim"). Whether that procedure could be followed in the face of an order permanently staying "a claim" is another matter.