HEADNOTE
[This headnote is not to be read as part of the judgment]
Ms Rickhuss and others (the representative plaintiffs) sued ten medical practitioners, and various other defendants, alleging that they had performed breast augmentation surgeries according to the same system, namely a "One Size Fits All Approach". It was alleged that this system involved the same surgical technique being used, irrespective of the size or shape of patients' breasts or whether different approaches and techniques were indicated. It was alleged that this system carried with it a significantly higher risk of complications, and that the risk was not disclosed to patients.
The proceedings were brought as representative proceedings on behalf of a large number of persons who underwent surgery performed by the medical practitioners. Section 157(1)(c) of the Civil Procedure Act 2005 (NSW) authorises the bringing of representative proceedings if, inter alia, the claims "give rise to a substantial common question of law or fact". Section 161 requires the originating process to "specify the question of law or facts common to the claims of the group members". Section 166 empowers a court to order that proceedings no longer continue as representative proceedings if satisfied that it is in the interests of justice to do so.
In the Court below and on appeal, the medical practitioners argued that the litigation should no longer proceed as representative proceedings, either because the pleadings filed by the representative plaintiffs did not give rise to a "substantial common question of law or fact", such that a threshold requirement for commencing representative proceedings was not met, or because it was not "in the interests of justice" for the proceedings to continue as representative proceedings. In support of the first submission, the medical practitioners submitted that the allegations were inherently individualistic questions which could not be common questions. It was also submitted that whether or not the system was applied universally would require investigation of the records of each case, and that the test which should have been applied was to hypothesise that each group member commenced separate proceedings, then identify all of the issues arising in each proceeding, and then determine whether there were questions which arose in all.
The Court (Ward P, Leeming JA and Basten AJA) granted leave but dismissed the appeal, holding that:
- Whether the system was used on all patients, irrespective of their personal characteristics, was a common question. So too was whether the system increased the risk of harm. It was wrong to introduce a supposed dichotomy between questions which are "common" and questions which are "individualistic" and to conclude that if a question is the latter, it cannot be a common question. The fact that the defendants might seek to lead evidence of what occurred in particular cases did not stand in the way of there being a common question of law or fact: at [27]-[33].
Bright v Femcare Ltd [2002] FCAFC 243; 195 ALR 574 applied.
- Whether there were common questions of law or fact did not require identifying all of the issues which would arise in the event that each group member brought separate proceedings. Although earlier forms of the rules permitting joinder of causes of action used the language of "any common question of law or fact", the context was different, including because group members did not become parties and Part 10 of the Civil Procedure Act was beneficial legislation intended to enhance access to justice: at [34]-[48].
Universities of Oxford and Cambridge v George Gill & Sons [1899] 1 Ch 55 considered and distinguished.
- Whether the system was applied irrespective of patients' characteristics and whether it increased the risk of harm were central to the case. It was appropriate that the proceedings continue as representative proceedings: at [49]-[50].