Solicitors:
LHD lawyers (Plaintiff)
HFW Australia (Defendant)
File Number(s): 2013/37342
[2]
EX TEMPORE Judgment
This judgment concerns an application by the defendant, Rolls Royce PLC, "Rolls Royce", for the dismissal of the claim of some group members in a representative action who have registered their claims but have not pursued them. In particular, they have not, as they were required to do, filed particulars of their claims.
The nature of these proceedings was described in Lam v Rolls Royce PLC [2013] NSWSC 805 at [3] to [5]. Rolls Royce is sued as the entity said to be responsible for the manufacture of an engine that is alleged to have failed on Qantas flight QF32 that departed from Changi Airport in Singapore on 4 November 2010. The action has been brought on behalf of persons who were aboard that flight and who have suffered psychological injury as a result of their experiences consequent upon the engine failing. The number of persons aboard the flight was approximately 470. Over time the number of persons said to fall within that group have been reduced for a number of reasons which I will outline, but including the fact that various passengers filed opt out notices.
In Lam v Rolls Royce PLC (No 3) [2015] NSWSC 83 ("Lam (No 3)"), I made orders to give effect to what is often described as "class closure" (see Matthews v SVI Electricity Pty Limited (2013) 39 VR 255; (2013) VSC 17-23). In Lam (No 3), I determined the passengers with overseas contact details who did not register with the plaintiffs' solicitors would be removed from the class. However, in relation to the passengers with Australian contact details who did not register with the plaintiffs' solicitors, I determined that they would remain in the class but could not participate in any settlement or resolution of the proceedings without the leave of the Court.
To effect class closure, on 27 March 2014 I made orders requiring persons to register their claims with the plaintiffs' solicitors by 3 June 2015 and thereafter to provide certain basic particulars of their claim. On 1 June 2016, I ordered all registered group members to file and serve on the defendant's solicitor on or before 31 August 2015 a statement of particulars pursuant to rule 15.12 of the Uniform Civil Procedure Rules, including any documentation in support of the claim made. The notice forwarded to group members pursuant to those orders stated that, if they failed to comply with those orders, then the Court may make orders against them precluding them from maintaining a claim arising out of the events on 4 November 2010.
On 16 September 2016, I made orders dismissing the claims of group members who had failed to register with the plaintiffs' solicitors in accordance with the orders made on 27 March 2015 and an order that their dismissal operate as a final determination of their rights, (see Lam v Rolls Royce PLC (No 5) [2016] NSWSC 1332 at [16]; ("Lam (No 5)").
The result of all this was that 187 persons were taken to have registered claims and remained in the representative action. Of those 187 it seems that 152 provided particulars of their claims. Of those 152, 138 persons have now settled. There remain 14 persons within the group who have provided particulars but have not settled their claims although orders have been made that their claims be further mediated.
This application concerns the remaining 35 registered group members who did not file and serve statements of particulars and supporting documentation in accordance with the orders made on 1 June 2016. Because they failed to do this they have not been able to participate in what to date has been a fairly effective mediation process conducted by the representatives of the parties.
On 4 September 2017, Rolls Royce applied to dismiss the claims of these 35 registered group members. I declined to do so, but instead ordered that the plaintiffs' solicitors forward notice of the application to those 35 group members by 4pm on 6 September 2017. I further ordered that any notice of motion by any of those members seeking an extension of time to comply with the orders made on 1 June 2016, requiring them to file particulars of their claim, be served by 4pm on 20 September 2017.
On this application an affidavit was filed by the plaintiffs' solicitors demonstrating that those orders were complied with. In particular, a letter was sent by his firm on or about 6 September 2017 to those 35 group members which enclosed a notice setting out what had occurred in relation to the orders made on 1 June 2016. Those persons were advised that, if they wished to continue to participate in the proceedings, they needed to file a motion seeking leave to extend time to comply with the orders made on 1 June 2016.
Under the heading "What Happens If You Do Not Make an Application to Extend Time" the notice stated as follows:
"If you do not by 4pm on 20 September 2017 file and serve upon the solicitors for the defendant a notice of motion seeking an order extending time for compliance with the orders made on 1 June 2016, then at the directions hearing on 21 September 2017, the Court may dismiss your claim. The dismissal would operate as a final determination of your rights and would mean you would lose the right to claim compensation against the defendant arising out of the events on board QF32 on 4 November 2010."
Translations of the notice in various languages were also included.
This matter is now returnable today, 21 September 2017. No notice of motion has been filed seeking an extension of time to comply with the orders of 1 June 2016. Rolls Royce contends that it is entitled to obtain certainty for its position by seeking orders dismissing the claims of registered group members who did not, in accordance with the orders of 1 June 2016, serve the statement of particulars and evidence in support of their claims. As I have noted, Rolls Royce also seeks an order that the dismissal operates as a final determination of those claims.
In Lam (No 5), I decided that s 183 of the Civil Procedure Act empowers the Court to make such orders. I will not repeat that discussion.
Rolls Royce has also drawn the Court's attention to s 175(1)(b) of the Civil Procedure Act which provides that notice must be given to group members of "an application by the defendant in the proceeding for dismissal of the proceeding on the ground of want of prosecution". Rolls Royce contends that notice requirement is not engaged in these circumstances because it is only seeking dismissal of some individual claims of certain group members rather than the proceedings as a whole. It is not necessary to determine that question because it follows from what I have already outlined that notice has been given of the application for a dismissal of certain group members' claims.
In relation to whether the power should be exercised, the reasons that led the Court to dismiss the claims of unregistered group members in Lam (No 5) apply with even greater force to the 35 registered group members who have not served statements of particulars and other material to support their claims. Those group members have had ample opportunity to serve that material and ample notice of the orders that were made. The flight took place on 4 November 2010 and the proceedings were commenced in February 2013. The relevant group members have received a steady stream of correspondence about the course of the proceedings since then. The notification of the orders made on 1 June 2016 and 4 September 2017 clearly advised them of the need to serve their material and the potential consequences, including final dismissal of their claims, if they did not.
Overall, I am comfortably satisfied that these group members are persons who are well-informed of the conduct of the proceedings, but are simply not in a position to pursue their claims. This is most likely because of an acceptance by them that they did not suffer any recognisable psychiatric illness as a consequence of being on the flight on 4 November 2010. In these circumstances, I think it is appropriate that their claims be brought to an end. Litigation cannot proceed indefinitely and the defendant is entitled to the certainty that having been exposed to these claims, they are now over.
Accordingly, I will make the following orders:
(1) Order that all claims by group members for damages or other relief against the defendant arising out of the events on board QF32 on 4 November 2010 who have not, in accordance with the orders made on 1 June 2016, filed and served their statement of particulars and served their evidence in support of their claim for compensation for psychological injury and who are listed in Annexure "A" to the orders made on 4 September 2017, be dismissed pursuant to s 183 of the Civil Procedure Act 2005 (NSW).
(2) Order that the above dismissal of claims is to operate as a final determination of the rights of the individual group members, listed in Annexure "A" to the orders made on 4 September 2017, to claim damages or other relief against the defendant arising out of the events on board QF32 on 4 November 2010.
[3]
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Decision last updated: 26 September 2017