Consideration
18Each of the provisions in Part 10 of the CPA is to be read consistently with the enjoinder in s 56(1) of the CPA, namely, that civil proceedings should be conducted in a manner that "facilitates the just, quick and cheap resolution of the real issues in the proceedings". It can be expected that no two representative proceedings will be the same. In particular, the potential size and geographical dispersement of each group will vary from case to case. In this case, one potentially unusual feature of the group is that the maximum number of persons within it are known, namely, the number of passengers and crew on the flight. A further feature of the group is, as Mr Rowe submitted, the real likelihood that that relatively small group of people will be geographically dispersed at least across the country, and potentially around the world. In addition, it is known that there is at least one single piece of paper which lists all their names, namely, the manifest.
19The provision of the passenger manifest and such contact details as are available will enable the solicitors for the plaintiff to commence work on contacting all those persons who might fall within the class as described. This will allow them to, inter alia, ascertain which of them have or may have suffered a psychiatric injury and provide an early indication of how many of them, if any, wish to continue to be part of the proceedings or opt out. The manner in which the class has been defined, namely, by reference to those who have suffered psychiatric injury, may become the subject of some debate. At present it seems to me that there are strong reasons for enabling the plaintiff to make efforts to make individual contact with as many potential class members as possible, so that they can ascertain as best they can how many persons in fact fall within the proposed class and who they are.
20This will enable the various steps involved in the progress of the representative proceedings to be undertaken more efficiently. Thus, if and when the Court comes to consider the form, content and manner of service of opt out notices, it will be able to calibrate those matters by reference to what the plaintiff's solicitors have identified as to the likely size and geographical distribution of the class members. For example, it seems to me that requiring the publication of an opt out notice by television or radio, etc., for a class that is no bigger than 469 persons would be a waste of resources. Instead if, by the time the form of opt out notice comes to be considered, it is known that the plaintiff has established contact with say three-quarters of the possible members of the class, then attention could then be focused on the means of contacting the remainder (as well as the form of notice to be sent to all).
21Similarly, if Rolls Royce were to apply under s 166 for the discontinuance of proceedings as a representative action, then it may be relevant to the exercise of any discretion that may arise to know as much as possible about the actual size of the class in order to determine how many individual claims are possible or likely in the event that power is exercised.
22As I have stated, Mr Rowe also submitted that the pursuit of any settlement discussions can commence that much sooner if more is known about the size and make-up of the relevant class. Not surprisingly, Rolls Royce did not embrace that as a consideration warranting the production of the documents. I would not necessarily allow information of this kind to be obtained at such an early stage of the proceedings solely for that reason but, in my view, when taken together with the other matters that I have noted, it reinforces my conclusion that the objectives stated in s 56 of the CPA would be promoted by access to the passenger manifest being granted.
23I have noted above Mr Izzo's submission that the subpoena amounts to no more than a "fishing expedition", in that the plaintiff does not know at this point whether there are any persons on the flight who did or may have suffered psychological injury other than the seventeen persons that I have already referred to. I do not accept that the various descriptions of what constitutes a "fishing expedition" in relation to the production of documents are apposite to these circumstances. In a sense the entire concept of an opt out representative action involves a form of "fishing", in that very often the plaintiff will commence a proceedings on their own behalf and on behalf of others not necessarily knowing how many are in the class as defined, much less their identity or whether they have a reasonable or an arguable case. In my view the obtainment of details from the passenger manifest facilitates those matters being ascertained earlier and more cheaply.
24Mr Izzo also referred to the decision of Lehane J in Bright v Femcare Ltd [2000] FCA 1344. Those proceedings involved a class action arising out of an item of medical equipment known as the "Filshie clip system". A subpoena was issued to a number of hospitals requiring the production of a vast number of documents concerning the use of that item which included "lists of patients who underwent Filshie clip sterilisation operations at the hospital and who were recalled to the hospital with regard to the sterilisation procedure which they had undergone" (at [4]). In striking out various parts of the subpoena, including that part, his Honour stated (at [11]):
"But the propositions relied on are propositions which, though generally true, are not necessarily, in my view, universally so. It should not, I think, come as a surprise if, in a novel class of case, there are matters which must be taken into account when considering whether a subpoena should be set aside which do not ordinarily arise in more conventional litigation. Thus, in this case the applicant has commenced a proceeding under the Pt IVA of the Federal Court of Australia Act 1976 (Cth) on behalf of what may be a great number of women, the identity of most of whom is unknown, who have undergone sterilisation procedures. Defences have not yet been filed; motions seeking orders under s 33N of the Act have been foreshadowed; and opt out notices have not yet been given. In those circumstances, in my opinion, it is highly unlikely that the Court would countenance the disclosure of information, not only of a confidential but also of a very personal kind, concerning women, some - perhaps many - of whom ultimately, for one reason or another, may not be represented by the applicant in this proceeding."
25The first sentence in this extract reinforces the point I have made above (at [23]), to the effect that in cases such as this there are matters to be taken into account which do not arise in conventional litigation. Otherwise the balance of the paragraph emphasises the need to consider each case individually. In that case the female patients in question were to be subject to a very significant intrusion into the privacy of their medical records in circumstances where the proceedings were at an early stage, and many of those women were unlikely to be represented by the plaintiff in those proceedings. In this case I accept that the material sought to be obtained from Qantas is private to the persons concerned, but the proposed degree of intrusion is far less than that which would have occurred in Bright. That much lesser degree of intrusion, and the strong likelihood that the production of the material will enhance the objectives listed in s 56, favour the production of the material.
26As I have stated, Rolls Royce appeared on the application to set aside the subpoena. It supported Qantas' application. It further submitted that, if production was ordered, the Court should restrain the solicitors for the plaintiff from contacting the persons named and that, in effect, the Court should supervise all communications between them and the persons named in the manifest. I do not propose to take that course. I expect that the initial communications between the plaintiff's solicitors and the persons named will be in the nature of correspondence between solicitor and prospective client. No reason at this point has been demonstrated for interfering with the confidential nature of that communication. If the proceedings continue as a representative action, then at some point the Court will supervise the manner in which each member, and perhaps potential member, will be notified of their right to opt out.
27Finally I should note that, in the event that production was ordered, Qantas took objection to the form of subparagraph 1(ii) of the schedule. As I understand the position, it was accepted that if production was to be ordered, subparagraph 1(ii) should be amended to read "[i]n respect of each such passenger named in the passenger manifest, the most recent document created between the time of booking on flight QF32 and 4 May 2011 recording the name, address and telephone number of such passenger".
28In relation to costs, on the substantive matter debated between the parties the plaintiff has been successful, although part of its subpoena will be set aside and another part redrawn. In those circumstances, my present view is that Qantas should pay half of the plaintiff's costs of its motion. I will not make that order at present, but if either party wishes to submit to the contrary, then they should email to my Associate and serve on the other party a written submission to that effect, such submission not to exceed two pages on or before 22 June 2013.
29Accordingly the Court orders that:
(1)Subparagraphs 1(iii) and (iv) of the schedule to the subpoena issued by the plaintiff to Qantas Airways Limited on 10 April 2013 be set aside.
(2)Subparagraph 1(ii) of the schedule to the subpoena issued by the plaintiff to Qantas Airways Limited on 10 April 2013 be varied to read "[i]n respect of each such passenger named in the passenger manifest, the most recent document created between the time of booking on flight QF32 and 4 May 2011 recording the name, address and telephone number of such passenger".
(3)The notice of motion filed on behalf of Qantas Airways Limited on 31 May 2013 be otherwise dismissed.
(4)The subpoena issued by the plaintiff to Qantas Airways Limited on 10 April 2013, as varied by these orders, be returnable before a Registrar of this Court on 2 July 2013 at 9.00am.
(5)Extend time for compliance by Qantas Airways Limited with the subpoena issued by the plaintiff to Qantas Airways Limited to 2 July 2013.
(6)Direct that any submissions concerning the costs of the notice of motion filed on behalf of Qantas Airways Limited on 31 May 2013 be sent to the Associate to Beech-Jones J and served on or before 22 June 2013, such submission not to exceed two pages.
(7)Liberty to apply to Beech-Jones J on two days notice.
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 19 June 2013