Moussa v Camden Council

Supreme Court of NSW|2021-08-13|Before: Garling J

EX TEMPORE Judgment

This is an application made by the second defendant (the "Cornish Group") for orders to facilitate contact by the Cornish Group with Group Members who claim in these proceedings that, due to subsidence or other inadequate fill, houses which they own, and in which they live or else in which other people live have been physically damaged.

Nature of Application

The Cornish Group wishes to circulate to anybody who claims that their house has been physically damaged, an proposal, made without any admission of liability, to inspect the property, investigate the cause of any physical damage and rectify any damage which is due to subsidence or inadequate fill.
It has sought, by the present Notice of Motion, orders of the Court, that the lawyers for the plaintiff, and Group Members, provide them with the names and addresses of any individual whose property is claimed to be physically damaged and who have become members, or else have indicated their interest to become Group Members in the proceedings, so that such proposal as the Cornish Group wishes to make can be sent to those people.

Plaintiff's Attitude

The plaintiff does not wholly resist an order to that effect, but in substance seeks conditions which would limit Cornish Group in the proposal it wishes to make. First, the plaintiff says that he is unable, without a Court order, to provide the requested details of Group Members; secondly, the plaintiff seeks that he should only be required to provide details of those Group Members who first consent to their details being provided; thirdly, the plaintiff proposes some amendments to the content of letter proposed to be sent by the Cornish Group, which he submits does not change the substance of it; fourthly, he proposes a protocol for any further communications arising out of the letter containing the proposal with respect to anything done pursuant to that proposal made by the Cornish Group; and, fifthly, he seeks a copy of any geotechnical report prepared by or on behalf of the Cornish Group with respect to any property.

Discernment

I do not regard contractual arrangements entered into by the plaintiff or his lawyers or the funders to this litigation as providing any constraint on the capacity of this Court to make an order for the provision of the names of the Group Members, nor do I think that it is appropriate that the consent of the Group Members needs to be, nor should be, first obtained.
As the facts and circumstances show, the Cornish Group's proposal has been previously made publicly not the least during previous hearings in this Court. It can be communicated to any person that the defendant seeks to communicate it to, in the Spring Farm area, without the leave of this Court and without the consent of the plaintiff. The mere existence of this litigation does not, and cannot, prevent a party from making such a proposal.
The orders sought are intended to make the process less intrusive and less disruptive to the lives of a large number of other people who live in the general area of Spring Farm. The orders proposed are targeted to the relevant Group Members, and not the residents of the Spring Farm area generally and are therefore more appropriate to the particular issues and the proposal which is sought to be made.
In my view, there is no reason why this Court would do anything other than order that the names and addresses of the 56 individuals who have registered their interest in this litigation as Group Members, be provided to the Cornish Group for the purpose of those details being used to make a proposal to, or to make contact with, the individuals who claim physical property damage for the purpose of ascertaining whether or not any remediation work will be done on their properties.
The fact is that each Group Member is joined into these proceedings: 1. by the plaintiff through the definition in his pleading of the membership of the representative group; 2. by the group members' participation in the funding agreement; and 3. by the nature of the claim being made, namely, amongst other things, a claim in tort, which relies, in whole or in part, upon particular damage being sustained.
In those circumstances, I do not regard their names and their addresses as being information to which there is attached any particular confidentiality in the context of this litigation.
The plaintiff's third submission is that there ought be some amendments to the form of the letter containing the proposal of the Cornish Group. I do not see that it is this Court's role to decide on the content of any letter which the Cornish Group wishes to send to any Group Member, save and except that it is open to the Court to (and I would if required) constrain the content of that letter in a general way i.e. namely to indicate that it is not to contain reference to a particular issue.
Other than such a consideration where appropriate, the content of the letter is a matter for the author, in my view, and it would be inappropriate for this Court to get involved in the terms of any proposal by which the Cornish Group seeks to engage in conduct which may or may not mitigate any loss being claimed against it in these proceedings but which otherwise stands outside the Court's ordinary control of representative actions.
The fourth submission of the plaintiff proposed a communication protocol. I regard the protocol proffered as impractical and unworkable. I do not propose to make it as a condition of, or else in respect of, this Offer. In my view, there is adequate protection for the Group Members from the orders which will constrain the topics for discussion to the issue of repair and remediation. As well, the relevant undertakings proffered not to rely on any of the communications and work being done as foreclosing any claim by a Group Member for damages, save as to whether a refusal to accept the proposal amounts to a failure to mitigate loss.
Finally, the remaining matter is whether the plaintiff's solicitors would be entitled to a copy of any geotechnical report which the Cornish Group proposes to provide to the Group Members. Any such report stands outside the litigation and therefore would be discoverable by the Cornish Group (as its Senior Counsel concedes) in the ordinary course of the litigation. In those circumstances, I see no reason why it would not be appropriate for the plaintiff's solicitors to be provided with a copy of any such geotechnical report obtained by, or at the request of, the Cornish Group and which is provided to any individual land owner who is, or else is entitled to be, a Group Member.
The power to make such an order is contained in s 183 of the Civil Procedure Act 2005, and that is the power which I propose to exercise.
The Cornish Group also seeks what is called a "correcting letter" or correspondence to be sent to the Group Members by the plaintiff's solicitor. The Cornish Group contends that the letter actually sent to the relevant Group Members by the plaintiff's solicitor on or about 6 August 2021, was itself misleading.
I do not propose to engage in any fact‑finding exercise as to whether or not that letter was misleading. In my view, if the Cornish Group wishes to make clear, as no doubt it would, the real substance and effect of the proposal which it is making, it is entitled to do that and to draw the recipient's attention to the fact that, in their view, the previous letter did not adequately, or accurately, set out the proposal. That is a matter entirely for the Cornish Group. I do not propose to make an order of the kind sought by it with respect to the letter sent by the solicitors for the plaintiff to Group Members.
I do note however, as a general comment, in looking at the contents of the letter under consideration, together with the so‑called "correcting letter", the exchange of correspondence between the parties and the submissions which were made in this case, that parties to litigation such as this need to be particularly careful when corresponding with Group Members that any such correspondence is neither misleading by commission or omission but fairly states the propositions seeking responses from Group Members. This remark applies to any party communicating with any Group Member.
In those circumstances, broadly the orders proffered by the Cornish Group are those that I would make, subject to not making the order with respect to the correctional letter for which the Cornish Group contends.

Orders

The parties will need to provide short minutes of the orders which they require reflecting these reasons. As well, the precise terms of the undertakings being offered by the Cornish Group will need to be set out. Orders will then be made in Chambers.

Costs

Any party seeking an order for costs will need to file written submissions (maximum of five pages) by 20 August 2021.
Any party resisting such an order is to file any written submissions (maximum of five pages) by 27 August 2021.
The Court will decide any questions of costs on the papers.

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: 08 September 2021

At a glance

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Judgment (7 paragraphs)

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Cited By (1)