Schutt Flying Academy (Australia) Pty Ltd v Mobil Oil Australia Limited

For the Attorney-General for the State of Victoria Intervening

Mr. B.J. Shaw, Q.C., Mr. I.G. Waller and Ms. P.M. Tate

2. In November and December 1999, many hundreds of light aircraft throughout Australia were grounded as a consequence of what was thought to be contaminated fuel ("Avgas 100/130") released and distributed by the defendant from its premises at Yarraville in the State of Victoria. It is claimed that those who owned, operated or piloted such aircraft have suffered loss or damage as a result of using the fuel. The plaintiff, Schutt Flying Academy, is one of those who claims it has suffered loss.

5. By writ filed on 24 January 2000 the plaintiff commenced in the Supreme Court a "group proceeding" against the defendant. In doing so, it has relied upon the procedure established by Order 18A of Chapter 1 of the Supreme Court (General Civil Procedure) Rules 1996. The Order is entitled "Group Proceeding" and came into operation on 1 January 2000. These Rules were made by the Judges of the Court pursuant to the powers invested in them by s.25(1) of the Supreme Court Act 1986. It is not suggested that there is any authorizing power save that found in s.25(1)(f)(i) - that is the power to make Rules of Court "for or with respect to ... any matter relating to the practice and procedure of the Court" - and/or s.25(1)(a) - namely, the power to make Rules "for or with respect to ... any matter dealt with in any Rules of Court in force on 1 January 1987".

8. On 24 January 2000, and in accordance with Rule 18A.08, the plaintiff served upon the defendant a summons for directions, returnable before Hedigan, J., the judge in charge of the appropriate list in the Trial Division of the Court. His Honour entertained argument pursuant to the summons on 31 January 2000 and 4 February 2000. The defendant indicated that it wished to challenge the validity of Order 18A, and requested his Honour, pursuant to s.17B(2) of the Supreme Court Act, to reserve for the consideration of the Court of Appeal the question of the validity of the Rules contained in the Order. His Honour acceded to that request and, on 4 February 2000, directed that the following question be reserved for the consideration of the Court of Appeal:

"Is Order 18A of the General Rules of Civil Procedure valid?"

12. This Court has granted leave pursuant to s.17B(3) of the Supreme Court Act for the question to be considered. Although, prior to the hearing, the defendant had given notice that it intended to argue that Order 18A infringed Chapter III of the Commonwealth Constitution, and had accordingly served notices on the respective Attorneys-General for the Commonwealth and States pursuant to s.78B of the Judiciary Act 1903 (Cth.), only the Attorney-General for the State of Victoria desired to intervene in the proceedings. The Court granted its leave generally for that Attorney-General to intervene. Accordingly, the Court received submissions from counsel for the plaintiff and the defendant, and from the Solicitor-General for the State of Victoria, who advanced argument in support of the validity of the Rules.

15. I have had the advantage of reading, in draft, the reasons for judgment prepared by Brooking, J.A. I agree with his Honour, and for the reasons which he assigns, that Rules 25 and 26 of Order 18A are not a valid exercise of the rule-making power conferred either by paragraph (a) or paragraph (f) of s.25 of the Supreme Court Act because they authorize the court to assess damages otherwise than according to law and, thus, intrude upon substantive rights of "group members" who are bound by such assessment. His Honour, in my opinion, is correct in his conclusion that the authorization given to the Court by Rule 25(1)(f) to "award damages in an aggregate amount", subject to the limitation not to do so "unless a reasonably accurate assessment can be made of the total amount to which group members will be entitled under the judgment", cannot be equated with a power to assess reasonable damages, according to law, in respect of actual losses suffered by individual group members. Indeed, it is difficult to see how it could be so when the "opt-out" procedures prescribed by the Rules envisage that, at the time when judgment for an award of damages in an aggregate amount is given, the number of group members and the amount of their individual losses will, or may, not be accurately known. It seems to me, as it does to Brooking, J.A., that rules which authorize the Court to assess damages which are incommensurate with the actual loss suffered by individual group members are rules which go beyond the boundaries of permissible rule-making and intrude into the field of rule-making with respect to the substantive rights of litigants.[1]

18. I also agree with Brooking, J.A. that Rules 25 and 26 are central to the scheme created by Order 18A, a major purpose of which is to enable relief to be sought in the nature of common law damages in respect of common law causes of action; and that accordingly, if Order 18A is invalid to the extent to which it authorizes awards of damages in an aggregate amount, the Order as a whole is bad and severance cannot sensibly occur.

21. In conformity with these reasons, I would answer "No" to the question referred for the Court's consideration. I have reached this conclusion with some regret because the Judges of the Court have clearly made these rules with a view to avoiding multiplicity of actions against a common defendant and, thus, to confine the costs of such litigation in appropriate cases. If, however, it is desired to maintain the scheme presently contained in Order 18A, it will, in my opinion, be necessary for the Parliament to enshrine the Rules in a statutory framework.

25. Representative proceedings have been with us for three hundred years. Their history down to 1980 has been traced by Professor Yeazell in a stimulating two-part article, "From Group Litigation to Class Action"[2]. In 1982 the Ontario Law Reform Commission made a significant contribution to the literature on the subject in its three-volume Report on Class Actions. In Australia the Law Reform Commission produced in 1988 its report on Grouped Proceedings in the Federal Court, which led to the enactment of Part IVA of the Federal Court of Australia Act 1976, dealing with representative proceedings. In quite recent times group litigation in England has perhaps awakened from the deep slumber deplored by Professor Yeazell[3]. The same thing has happened in Victoria, although here we have seen new provisions rather than, as in England, a new approach to old provisions. The year 1984 saw the enactment in Victoria of s.62(1C) of the Supreme Court Act 1958 by the Supreme Court (Amendment) Act 1984. This was followed by ss.34 and 35 of the Supreme Court Act 1986. But this legislation proved to be inadequate to give representative actions the expected fillip.

28. In 1997 the judges of the Supreme Court suggested to the then Attorney-General that Parliament should legislate along the lines of Part IVA of the Federal Court of Australia Act. The suggestion seemed to be well received. But by 1999 no legislation had been introduced or even foreshadowed and so the judges turned their minds to the introduction of the Federal Court system by means of Rules of Court. The result was the making of Order 18A of Chapter I of the Rules of the Supreme Court, made on 9 December 1999 and coming into operation on 1 January 2000. While some differences exist, this Order generally speaking follows very closely the federal legislation on which it is modelled.

31. The first action under the new Victorian procedure was launched on 24 January, to enforce claims said to have arisen from the sale of contaminated aviation fuel by Mobil Oil Australia Ltd. in or about November and December 1999. The circumstances are, in broad outline, notorious. The validity of Order 18A has been challenged by the defendant, the Mobil company, and on 4 February Hedigan, J., at the defendant's request, reserved for the consideration of the Court of Appeal the question whether the Order is valid. We have given leave under s.17B(3) of the Supreme Court Act 1958 for the submission of that question and leave to the Attorney-General for Victoria to intervene generally in the proceedings before us.

34. The judges gave consideration to the question of power to make the new Order before making it, but of course the question has been and must be considered afresh in the light of the submissions made.[4]

37. The making of Order 18A is supported by the plaintiff and the Attorney-General as an exercise of the power conferred by para. (f) of s.25(1) of the Supreme Court Act 1986 to make Rules of Court for or with respect to any matter relating to the practice and procedure of the Court. Alternatively, reliance is placed on the power given by para. (a) of that sub-section to make Rules of Court for or with respect to any matter dealt with in any Rules of Court in force on 1 January 1987. It is said that, since representative proceedings were dealt with in Order 18 of the Rules in force on 1 January 1987, para. (a) of s.25(1) may be used to support Order 18A. The defendant submits that neither of the heads of power relied on by the plaintiff and the Attorney-General will support a rule which alters, or at all events alters in a significant respect, the principles according to which damages are to be assessed. This argument requires consideration of Rules 25 and 26 - I shall refer to rules in Order 18A by their number only - and I am afraid it is necessary to set out these two rules in full:

"18A.25 Judgment of the Court (1) The Court may, in determining a matter in a group proceeding - (a) determine a question of law; (b) determine a question of fact; (c) make a declaration of liability; (d) grant any equitable relief; (e) make an award of damages for group members, sub-group members or individual group members, being damages consisting of specified amounts or amounts worked out in such manner as the Court specifies; (f) award damages in an aggregate amount without specifying amounts awarded in respect of individual group members; (g) make such other order as is just. (2) In making an order for an award of damages, the Court shall make provision for the payment or distribution of the money to the group members entitled. (3) Subject to Rule 18A.20, the Court shall not make an award of damages under paragraph (1)(f) unless a reasonably accurate assessment can be made of the total amount to which group members will be entitled under the judgment. (4) Where the Court has made an award of damages, the Court may give directions in relation to - (a) the manner in which a group member or sub-group member is to establish his or her entitlement to share in the damages; and (b) the manner in which any dispute regarding the entitlement of a group member or sub-group member to share in the damages is to be determined. 18A.26 Constitution etc. of fund (1) Without limiting the operation of Rule 18A.25(2), in making provision for the distribution of money to group members, the Court may provide for - (a) the constitution and administration of a fund consisting of the money to be distributed; and (b) either - (i) the payment by the defendant of a fixed sum of money into the fund; or (ii) the payment by the defendant into the fund of such instalments, on such terms, as the Court directs to meet the claims of group members; and (c) entitlements to interest earned on the money in the fund. (2) The costs of administering a fund are to be borne by the fund or the defendant, or by both, as the Court directs. (3) Where the Court orders the constitution of a fund mentioned in paragraph (1), the order shall - (a) require notice to be given to group members in such manner as is specified in the order; (b) specify the manner in which a group member is to make a claim for payment out of the fund and establish his or her entitlement to the payment; (c) specify a day (which is six months or more after the day on which the order is made) on or before which the group members are to make a claim for payment out of the fund; and (d) make provision in relation to the day before which the fund is to be distributed to group members who have established an entitlement to be paid out of the fund. (4) The Court may, if it is just, allow a group member to make a claim after the day fixed under paragraph (3)(c) if the fund has not already been fully distributed. (5) On application by the defendant after the day fixed under paragraph (3)(d), the Court may make such orders as it thinks fit for the payment from the fund to the defendant of the money remaining in the fund."

41. The sections in Part IVA corresponding to Rules 25 and 26 are ss.33Z and 33ZA respectively. There is no substantial difference between these Victorian and federal provisions.

44. The short-lived Division 6 of Part XIV of what was formerly known as the Industrial Relations Act 1988 of the Commonwealth substantially reproduced Part IVA of the Federal Court Act. I say "substantially" partly because of the changes made necessary by the fact that different courts were being dealt with and partly because of the idiosyncrasies of the drafter ("if" replacing "when" and "on" supplanting "upon") and a penchant for simplification (eliminating "in such manner" and "the operation of" from the provisions corresponding to s.33Z(1)(e) and s.33ZA(1) respectively). There seems to be no authority on the effect of the two provisions just mentioned. They were in existence only from 22 December 1993, when s.56 of the Industrial Relations Reform Act 1993, which enacted Division 6 of Part X1V commenced operation, until 17 January 1997, when that Division was repealed.[5] For a short account of the short history of the Industrial Relations Court of Australia (created by Division 6), see Lane's Commentary on the Australian Constitution[6]. The matter of representative proceedings in the Industrial Relations Court's jurisdiction that has been transferred to the Federal Court is now presumably governed by Part IVA of the Federal Court of Australia Act. Compare Macken, McCarry & Sappideen's Law of Employment[7].

47. Rule 25(1) of Order 18A gives the Court a choice if it comes to award damages. It may either act under para. (e), by making an award of specified or ascertainable amounts, or make an aggregate award under para. (f). Paragraph (e), reproducing the language of para. (e) of s.33Z(1), seems clearly enough to contemplate that there is to be a specified or ascertainable amount in respect of each individual. This view is supported by para. (f), speaking as it does of an award of damages in an aggregate amount without the specification of amounts awarded in respect of individual group members. A reading of paras 223ff. of the report which led to the enactment of Part IVA reinforces the view that para. (e) of the federal Act should be taken to require the determination of amounts for individual members, either by the specification of an amount or by the provision of a means whereby an amount is to be ascertained.

50. It is essentially para. (f) of Rule 25(1) that is the foundation of the defendant's argument that the rules authorise the assessment and award of damages otherwise than in accordance with the principles of law governing the assessment of damages. Paragraph (3) of Rule 25 is important. It contains a limitation - and, indeed, the only express limitation - on the power of the Court to award damages in an aggregate amount by prohibiting the making of such an award unless a reasonably accurate assessment can be made of the total amount to which group members will be entitled under the judgment. I shall have to return to this important provision. Paragraph (4) of Rule 25, with its reference in both of its sub-paragraphs to entitlement to "share" in the damages, undoubtedly applies to awards of damages in an aggregate amount under para. (1)(f). It may be that, notwithstanding the use of the word "share", it is also capable of application to some awards under para. (1)(e). Rule 26 empowers the Court to provide for the constitution of a fund in making provision for the distribution to group members of money awarded as damages. There is no doubt that a fund may be constituted where damages in an aggregate amount have been awarded. The Law Reform Commission appears to have contemplated[8] that it was only in the case of an aggregate award that a fund might be constituted and that where an aggregate award was made the choice was between the constitution of a fund and distribution by the respondent. It is fair to say that the argument before us proceeded on the basis that Rule 26 empowered the constitution of a fund only where an aggregate amount had been awarded. If the fund proves too large for the meeting of all claims for payment out of it which are established, the Court may, by Rule 26(5), order payment of the surplus to the defendant. If the fund proves to be too small to satisfy all claims for payment which are established, it is clear that the defendant cannot be required to make any further payment, either by way of additional contribution to the fund or by way of direct payment to a claimant. The liability of the defendant merges in the judgment and there is no provision for subsequent variation of the judgment by way of requiring additional contributions or direct payments. This was recognised by the Commission[9].

53. I note in passing that one question not discussed before us was that of the application of Rules 25 and 26 to claims for monetary relief other than damages. Rule 25(1)(g), empowering the Court to make such other order as is just, authorises the grant of monetary relief other than damages. The Ontario Law Reform Commission carefully distinguished between damages and other forms of monetary relief[10]. Its draft Bill provided for an aggregate award, not of damages, but of monetary relief[11]. The Australian Commission, on one view, treats the terms "damages" and "monetary relief" as interchangeable[12]. Its draft Bill authorises aggregate assessment where the payment of money is claimed[13]. Section 33Z(1)(e) and Rule 25(1)(e) speak only of an award of damages. Since no argument has been directed to monetary relief other than damages I say no more about it.

56. One of the paradoxical submissions of the defendant in this case is that parts at least of Order 18A, if not indeed the whole order, are invalid because they may result in an inadequate award of damages against the defendant, to the prejudice of those whom it has (as we will assume) wronged. It is said that each person having a right of action against the defendant is entitled to have his, her or its damages assessed on the evidence as led and the facts as found and by the application of rules of substantive law governing damages. The scheme of Rules 25 and 26, it is argued, is such as to permit an award of damages in an aggregate amount which, in many cases at all events, will not correspond to the sum which would be awarded if a series of individual assessments were made in the light of the evidence relevant to the particular claim. Order 18A, so it is contended, authorises the Court to deprive each would-be claimant of the right to have damages assessed and awarded according to law and to replace that right with an entitlement to participate in the distribution of a fund in circumstances in which the amount distributed to the claimant may differ, and differ greatly, from the damages that would have been assessed on ordinary principles. The Law Reform Commission pointed out that "[t]he risk of an inaccurate award would arise where an aggregate assessment of the respondent's liability is made on the basis of an estimate of the number of group members, the extent of their loss, or both"[14].

59. The only question on this branch of the case is whether the defendant's contention is met by the condition imposed by Rule 25(3), which prevents the Court from awarding an aggregate amount unless a reasonably accurate assessment can be made "of the total amount to which group members will be entitled under the judgment". The quoted words are not to be read literally, for, since damages are being awarded in an aggregate amount, that amount is necessarily specified: the amount of the judgment is the total amount to which group members will be entitled under the judgment. Nor do I think that the quoted phrase is to be read down as concerned only with the estimation of the number of group members who will establish their entitlement to participate. The words "the total amount to which group members will be entitled under the judgment" must, I think, be taken as meaning "the aggregate amount of damages". All parties have assumed this in their submissions. This was certainly the intention of the Law Reform Commission which drafted the provision corresponding to Rule 25(3), although the provision it drafted was in somewhat different terms: "The Court must be satisfied that the aggregate amount is a reasonably accurate assessment of the total of the money payable as relief in those proceedings"[15]. In its report the Commission observed that the appropriate test to be satisfied as a condition of the making of an aggregate assessment of the respondent's liability should be that the assessment was reasonably accurate[16].

62. Were it not for the extrinsic material shortly to be mentioned, I should have thought there was much to be said for the view that a provision in Rules of Court requiring as a condition of an award of damages in an aggregate amount that a reasonably accurate assessment could be made should be read as not contemplating any departure, or at all events any significant departure, from the principles governing assessment of damages. "Reasonably accurate assessment" is not a term of art in the law. It would be possible to pray in aid numerous decisions about damages in support of an argument that the words "a reasonably accurate assessment" do not contemplate any departure from principle. So it might be argued that cases where a precise assessment of damages is possible present no difficulty (since a precise assessment answers the less stringent requirement of a reasonably accurate one) and that in other cases the best that a tribunal of fact can ever do is make a reasonably accurate assessment, it often not even being possible to do this; see the decisions cited in J.L.W. (Vic.) Pty. Ltd. v. Tsiloglou[17]. As regards the assessment of damages for personal injuries, I refer to the decisions cited in Mobilio v. Balliotis[18]. It should be noted that in Commonwealth v. Amann Aviation Pty. Ltd.[19] Toohey, J., adopting the words of Burchett, J., spoke of awarding damages for wasted expenditure where a breach of contract prevented "an assessment, or a reasonably accurate assessment, being made in the normal way". As to this, to say that a breach prevents "an assessment" of damages being made prima facie means an assessment which the law will regard as satisfactory, and I am, with respect, in some doubt about the contrast evidently drawn between "an assessment" and "a reasonably accurate assessment". Perhaps "an assessment" means "a precise assessment" and is contrasted with one which is merely reasonably accurate but nevertheless good enough in law. Perhaps the word "or" is epexegetical, the idea being that an assessment need not be precise and need only be reasonably accurate.

65. Writing extra-judicially in 1996, Wilcox, J. observed:

"The Federal Court's group actions procedure remains largely untried. Few final hearings have taken place and trial practice is still in its formative stage. Important questions relating to the assessment and distribution of damages, for example how to allow for unidentified group members, remain wholly unanswered. Nonetheless some principles have emerged and the practical aspects of group proceedings are being learned. The procedure has the potential to handle cases more efficiently than otherwise and to resolve cases that might otherwise remain unresolved."[20]

69. Whether s.33Z(1)(e) authorised an award of exemplary damages was considered by Wilcox, J. in Nixon v. Philip Morris (Australia) Ltd.[21]. (On appeal, the Full Court expressed no opinion on the point.)[22] At [106] Wilcox, J. described subss.(2), (3) and (4) of s.33Z as imposing and conferring "some procedural requirements, limitations and powers" in relation to awards of damages and said that no argument had been founded upon them. At [117] his Honour said this:

"Neither can I accept that s33Z contains any implied confinement of the scope of the damages available under the representative procedure. As counsel for the applicants pointed out in argument, it would be a serious step for the Parliament, in the guise of providing an additional procedure for the litigation of claims, actually to limit claimants' substantive rights. A question might arise as to the constitutional validity of such a course, in the absence of compensation: see Constitution s51(xxxi) and Georgiadis v. Australian and Overseas Telecommunication Corporation (1994) 179 C.L.R. 297. Certainly it might be expected that any such intention would be expressly stated in the legislation and drawn to the attention of the Parliament."

73. There appears to be only one authority on the meaning of "reasonably accurate assessment" in s.33Z(3). In Australian Competition and Consumer Commission v. Golden Sphere International Inc.[23] O'Loughlin, J. dealt with the matter briefly, at 448-9:

"The word 'assessment' used in the phrase 'assessment of damages' imports an element of judicial discretion: assessing damages is not the application of mathematical formulae. When it is qualified by the words 'reasonably accurate' it can be said, with confidence, that the judicial discretion has been widely extended. I am satisfied that the legislature has intended that the practical application of the provisions of Pt IVA of the FCA is not to be read down through any evidentiary inability to identify every member of the group and the relevant amount of damage that each member has or may have suffered."

77. We are of course concerned with the construction of a phrase used, not in the statute, but in Rules of Court. In an instrument of the latter kind, it may be appropriate to approach the case with a strong predisposition to the view that the principles governing the assessment of damages have been left unimpaired. But the instrument with which we are concerned reproduces in its essentials the regime laid down by the federal Act. This is certainly so with Rules 25 and 26, which use the very words of their federal counterpart. In making Order 18A, the judges were introducing into Victoria the federal scheme. In these circumstances it is legitimate to seek guidance from the report of the Law Reform Commission which led to the establishment of the federal scheme, notwithstanding that some of the Commission's recommendations were not adopted. And when this is done one finds a clear expression of the intention with which the Commission coined and introduced into its draft Bill the phrase "reasonably accurate assessment". I have read with particular interest the paragraphs of the report dealing with the topic "judgment"[24]. It is best to quote the whole of para. 228:

"Recommendation: degree of accuracy. The risk of an inaccurate award would arise where an aggregate assessment of the respondent's liability is made on the basis of an estimate of the number of group members, the extent of their loss, or both. Since assessment of damages involves an element of estimation in most cases, this is not in itself a ground for objecting to aggregate assessments (apart from the question of non-claiming group members) when the degree of accuracy is equal to or higher than that which would be obtained if individual assessments were made. The question is the degree of accuracy that should be required to justify an aggregate assessment. The Ontario Law Reform Commission recommended that aggregate assessment should be permitted where the same degree of accuracy could be obtained as in an individual action of the same kind. This may be too strict given the potential benefits of grouping proceedings. The appropriate test to be satisfied as a condition of the Court making an aggregate assessment of the respondent's liability should be that the assessment is reasonably accurate. Such a test would enhance the benefits of an aggregate assessment to all parties. Even so, there is room for error in assessing monetary relief in this way. This can be largely overcome by the Commission's later recommendations in relation to residue. Subject to those recommendations, the Court should be able, in respect of two or more proceedings, to order an unsuccessful respondent to pay an aggregate amount without specifying the amount payable in respect of each proceeding if it is satisfied that the aggregate assessment is a reasonably accurate assessment of the total of the monetary relief recoverable in those proceedings. To ensure that the order is an order that has effect in each of the grouped proceedings, the order should be declared to be an order in each of these proceedings." (Footnotes omitted.)

This paragraph is to be read in the knowledge that the Commission's "grouped proceedings" approach was not adopted in the legislation.

82. It is helpful to go back to the report of the Ontario Law Reform Commission mentioned in the paragraph just cited. Clause 22 of the draft Bill put forward in that report required the Court to determine the aggregate amount of the defendant's liability in respect of monetary relief when three requirements were satisfied, one of them being that "the total amount of the defendant's liability, or part thereof, to some or all of the members of the class can be assessed without proof by the individual members of the class with the same degree of accuracy as in an ordinary action". The matter of aggregate assessment of monetary relief is discussed at length in Chapter 14 of the report. It may be noted that at p.536 reference is made to consideration in the United States of whether aggregate assessment violates the constitutional right to due process or constitutes a change in the substantive law and is therefore not permitted by the Rules Enabling Act, which forbids the making of rules that "abridge, enlarge or modify any substantive right". At pp.552-6 the Commission worked its way to its conclusion that the propriety of aggregate awards should be determined by the same standards as those by which the propriety of an individual award of damages is decided and accordingly that aggregate assessment should not be permitted unless the amount of the defendant's liability could be assessed without proof by individual class members with the same degree of accuracy as in an ordinary action.

85. As regards the provenance of the phrase "a reasonably accurate assessment" in s.33Z(3), it clearly originated in cl. 30(3) of the draft Bill of the Australian Commission. It may be possible to trace the notion of reasonable accuracy back to a clause in a draft Bill put forward by Professor N.J. Williams as long ago as 1975:[25]

"10. Assessment of total pecuniary liability (1) When the question or questions affecting only individual members of the class and not determined by the judgment for the plaintiff is or include the amount of the pecuniary liability of the defendant to each member of the class, and the total amount of the liability to all members of the class can be calculated with reasonable accuracy without individual proof by the members, the court may determine the total amount of the liability and order the defendant to pay the amount into court. (2) Proceedings after the defendant has paid money into court pursuant to an order made under sub-section (1) shall be conducted in accordance with section 9. (3) If within such time as the court by order directs, the entire amount paid by the defendant into court has not been paid or applied in satisfaction of the claims of members of the class or the costs and expenses of the action, the court may dispose of the balance of the amount as it thinks fit."

89. The article containing this draft is mentioned by the Ontario Commission[26]. The words in cl. 10(1) ("without individual proof by the members") may have affected the drafting of cl. 22 of the Ontario Commission's Bill ("without proof by the individual members of the class"), notwithstanding that the Commission's approach ("with the same degree of accuracy as in an ordinary action") differed so markedly from that of Professor Williams, who favoured the expedient of "fluid class recovery"[27]. Since the Australian Commission was well aware of the work of its Ontario counterpart, and since Professor Williams made a written submission to the Australian body, it is quite possible that the requirement of s.33Z(3) of an assessment that is "reasonably accurate" can be traced back, through the Australian Commission, to the work of Professor Williams. Be that as it may, it is clear that the Australian Commission, in putting forward the test of a "reasonably accurate assessment", had rejected the idea that aggregate assessment should not be possible unless the same degree of accuracy could be achieved as in an ordinary action and was recommending that something less should suffice.

92. It is legitimate, and indeed necessary, to have regard to this extrinsic material in construing Rule 25(3), and I think it should be construed as permitting an aggregate award to be made notwithstanding that it is at the time of assessment impossible to make the kind of assessment which would be appropriate under the law if the Court was at that stage seeking to assess the damages to be awarded to each individual group member. This may be said to be, from one point of view, not a surprising conclusion. While an enormous variety of cases can fall within Order 18A, Rules 25 and 26 contemplate that an aggregate award of damages may be made at a time when the names and number of group members are unknown and when it is not known which or how many group members will establish entitlement to share in the damages. It is very difficult to see how, in cases of this kind, it would be possible to make a "reasonably accurate assessment" in the sense of the kind of assessment that would have been required had the draft Bill in Ontario been enacted. In many cases there will be two variables - the number of group members and the damage which individual members have suffered. One or other or both of these variables will be present in most cases in which a group assessment is sought, and the presence of either of them will, as it seems to me, make it impossible, subject to a possible de minimis exception, to arrive at a group assessment which gives individual group members what they would be entitled to on individual assessments according to law. This makes me think that, as the Commission said, "reasonably accurate assessment" was intended to authorise departure from the principles governing individual assessment. Indeed, as the discussion by the Ontario Law Commission of monetary relief shows, in the controversy in various jurisdictions about aggregate assessments it has generally been accepted that those assessments are intended to depart from the principles governing individual assessments. Moreover, as a matter of textual construction, while an assessment of damages may in some classes of case be or resemble a discretionary determination, and in other classes of case be necessarily very imprecise, the impression conveyed to my mind by the words "reasonably accurate assessment" is that something less than a "proper" assessment will do. An assessment will be proper - by which I mean in accordance with law - even if it necessarily contains a discretionary element and even if it is made in a matter in which precision is impossible. But the words "reasonably accurate", especially in their context in Order 18A and in the wider context in which Order 18A must be placed, suggest to my mind that the aggregate assessment will be less accurate - less reliable or sound - than the product of individual assessments.

95. In my opinion Rules 25 and 26, by authorising the Court to assess damages otherwise than according to law, affect substantive rights in a way not authorised by the rule-making power in either para. (a) or para. (f) of s.25(1) of the Supreme Court Act.

98. There was some brief discussion before us of the matter of severance. The submissions made were very largely submissions on behalf of the defendant as to why severance would not be possible. It is not without significance that the plaintiff has failed to put forward any particular scheme for severance. As regards the authorities dealing with severance at common law and the effect of s.22 of the Interpretation of Legislation Act 1984, it is enough to refer to the discussion by Gobbo, J. in Department of Premier and Cabinet v. Birrell (No.2)[28]. No submission was put on behalf of the plaintiff or the Attorney-General as to whether, if some parts of Rule 25 were invalid, the invalidity extended to Rule 25(2) and Rule 25(4) in whole or in part. I think it is enough to say that in my opinion, if Order 18A is invalid to the extent to which it authorises the award of damages in an aggregate amount, the Order as a whole is bad, severance being impossible, having regard to the importance of the matter of aggregate awards in the scheme of the Order.

103. The plaintiff's claim in this group proceeding has led to the reference to this Court for its determination of this question: "Is Order 18A of the General Rules of Civil Procedure of the Supreme Court valid?" The issues may be dealt with briefly.

106. Two aspects of the new Order[29] were primarily relied upon to demonstrate that it was made beyond power, one, that it diminished plaintiffs' common law rights to recover damages, and, two, that it wrongly gave power to bind persons, i.e. group members, both inside and outside the jurisdiction who had not been made parties to the proceeding in a way consistent with the Court's powers to exercise personal or other jurisdiction over them.

109. As to the claim that group members' rights to damages are detrimentally affected by the rules one must, in my opinion, carefully distinguish between what substantive principles of the law of damages the Order might seek to change and what it seeks to effect by way of altering the means by which damages are paid. The relevant provisions of the Order, rules 18A.25 and 18A.26, especially the impugned sub-para 18A.25(1)(f), as read together with para 18A.25(3), are sought to be justified under paras (a) and (f) of s.25(1) of the Supreme Court Act 1986. Para (a) requires consideration of "matters" dealt with in rules of court in force on 1 January 1987, which one may accept extends beyond matters relating to "practice and procedure" which has traditionally been a basis for the rule-making power of the Court. In my opinion the relevant rules relate to the "matter" of representative proceedings of the general kind described in Orders 16 and especially 18 of Chapter I of the Rules of the Supreme Court then in operation. They are means to the end of properly resolving disputes commenced under O.18A as "group proceedings".

112. Additionally and arguably more importantly these damages rules are properly characterised as rules of practice and procedure.[30] They do not, and do not purport to, change any principle as to the assessment of damages. The most they do is provide for what is hoped to be a simpler and less expensive way of paying properly calculated damages to each member of the class who chooses to claim. They are rules of practice and procedure because they prescribe "the mode of proceeding by which a legal right is enforced as distinguished from the law which gives or defines the right": per Lush L.J. in Poyser v. Minors[31], cited in, e.g., Minister for Army v. Parbury Henty & Co.[32].

115. No provision in the new rules prescribes or even suggests that damages should be assessed other than according to recognised existing legal principles. Inasmuch as subpara (1)(f) permits an award of damages "in an aggregate amount", that refers only to the manner in which the defendant may be required to satisfy its obligations, not to the amount to which "individual group members will be entitled under the judgment", as referred to in para (4). Where the subsequent provisions refer to group members establishing their entitlements "to share in the damages"[33], the assumption is that those entitlements will be calculated in accordance with the general law. Similar views have been taken as to the meaning of s 33Z of the Federal Court Act 1976, albeit that that legislation is not delegated legislation but must be construed having regard to constitutional limitations. The Law Reform Commission Discussion paper[34] on "Grouped Proceedings in the Federal Court" (which recommended a slightly different regime) made clear that the "primary goal" of its proposals was to enable "identified persons who establish their loss to secure the legal remedy the law provides"[35]. The broad thrust of these recommendations was accepted in the Second Reading speech of the Attorney General[36]. From these materials Wilcox, J. recently concluded that the federal section (in almost identical terms) contained no "implied confinement of the scope of the damages available", for it would be a serious step for Parliament "in the guise of providing an additional procedure for the litigation of claims, actually to limit claimants' substantive rights": Nixon v. Philip Morris[37].

118. I would reach the same conclusion in relation to O.18A. What was said against that view was that, by permitting the alternative procedure of awarding "an aggregate amount" under subpara (f), the quantum of each claimant's entitlement was thereby either reduced or rendered capable of reduction if that aggregate award turned out to be too small. I cannot agree that thereby the measure of claimants' rights to damages is altered. I would concede that such an award may, I repeat may, result in claimants' receiving somewhat less than the full measure of their entitlement on some occasions. But that would occur only if the judge's "reasonably accurate assessment", which is a condition to such an award, turned out to be insufficient. That is not intended, for the rules (as does the federal Act) provide for the return of any surplus to the defendant: see r.26(5), which in turn ensures that defendants are not obliged to pay more than their legal obligations. It is not necessary to express any final opinion about O'Loughlin, J.'s broad-brush approach to the federal equivalent of r.26(3) in ACCC v. Golden Sphere International Inc.[38], but, whatever was there in fact calculated, I would not read it as endorsement of the making of awards which are insufficient to enable group members to recover their full damages. If it were, I would respectfully disagree with it.

121. Even if the calculation so made turned out to be insufficient, I would not characterise any deficiencies in the claimants' recoveries to be a substantive alteration to the law of damages. The procedure is intended to provide a cheap and efficient means of recovering loss for parties who might (if they do not opt out) be put to great expense in pursuing their claims, such that their additional solicitor-client costs might otherwise well outweigh any potential shortfall in the fund. By allowing the defendant to retreat from the contest before damages are assessed for each claimant considerable cost savings may be anticipated in the ordinary run of case to which the subparagraph might be applied. As I would understand it, this particular procedure is not generally intended for large or complex claims, but rather for smaller claims where estimates may be more easily made. The possibility of a deficiency occurring might be a ground for staying group actions under rr.12 and 13 or the inherent power of the Court, but I would prefer to believe that it would be a fundamental reason for not making an aggregate award. If claimants do recover less in a few cases, then I would not regard that as other than the unintended consequence of a procedural reform resulting from the making of particular orders where the discretion in effect will have miscarried. In those limited circumstances the rules should not be considered to have effected any change to the substantive law of damages.

124. The second principal objection to Order 18A was that it purports to extend the jurisdiction of the Court in a manner not authorised by s.25. In essence the complaint rested on two elements, first, that persons could be joined effectively as plaintiffs without their consent, and, second, that the result of a group proceeding is intended to bind conclusively all members (except those who are able to and choose to opt out), so as to create res judicata between them and the defendant. Indeed, r.18A.27 requires the Court at the time of judgment to "describe or otherwise identify" all such group members who by para (b) are explicitly stated to be bound. The defendant asserts that under O.18A parties may be so affected who have no knowledge whatever of the proceedings and who will not have been served under the conventional rules as to service, including those permitting substituted service.

127. In my opinion there is no reason why the Court should not effectuate by rule of court these consequences of group proceedings. Unless it be asserting jurisdiction over persons outside the jurisdiction[39]

, this Court may make rules as to how parties are joined and are represented in proceedings in the Court. Substituted service not infrequently is ineffective to bring proceedings to a party's notice[40], but the Court recognises that that may be a necessary consequence of enabling certain plaintiffs to obtain relief to which they are entitled. There is no direct equivalent for plaintiffs, but the practice has existed for many years of binding unwilling plaintiffs by joining them as defendants to whom substituted service may be directed. More importantly, in the present context, for many centuries[41] the courts have permitted, in one way or another, parties to sue (and be sued) by representatives who have either claimed the right to sue on behalf of others or, more frequently (but not invariably) and in recognition of such claims, have been authorised or permitted by the courts in more recent centuries to sue or be sued on their behalf.[42] The Chancery practice, later adopted in Judicature Act rules, has been authoritatively expounded in relation to both the "traditional" representative suit[43] and Part IVA of the Federal Court Act in, respectively, Carnie v. Esanda Finance Corp Ltd.[44] and Wong v. Silkfield[45].

132. Joinder is clearly a matter for courts to prescribe as a matter of practice and procedure, but one may concede that the binding effect of judgments and the principles of merger of judgments, res judicata and issue estoppel are substantive. Insofar as O. 18A purports to change or expand those rules then one could only justify r.27 if it were possible to treat this attempt to bind absent parties as no different in substance from that recognised as flowing from the effect given to orders under O.18 and the like. Doubtless the classes represented by "group members" as defined by the new Order[46] are wider than even the High Court[47] was prepared to encompass under the existing procedures, but the means of communicating with them and their rights to opt out are more extensive. Whether or not para. (1)(f) of s.25 could properly be prayed in aid of the validity of r.27, I have little doubt that para (1)(a) of that section is a sufficient basis for the making of that rule, as it is for the whole Order. That paragraph invites consideration of the "matters" dealt with in the 1987 rules, in particular those rules dealing with representative proceedings, especially O.18, although one ought not to ignore O.16. The latter Order contains three rules each taken in substance from the former O.XVI, but having the characteristic of laying down rules purporting to bind absent parties who effectively are represented by specified or appointed persons for proceedings in relation to the interpretation of instruments and the administration of trusts and estates.

135. More importantly Rule 18.04, unlike the former O.XVI r.9, specifically provides in para (1) that judgments and orders under that rule "shall bind the parties and all persons as representing whom the parties sue or are sued", though leave is required before the judgment or order is enforced. The binding force of such orders is thus dealt with explicitly and the rule-making power ought to taken as extending to justify r.18A.27, unless the subject-matter of the new Order is to be seen as something quite different in character. No doubt the procedure is more elaborate and its scope is significantly wider, but in my opinion it is essentially an order permitting representation of absent parties, as are Orders 18 and 16. Whatever be its practical effect, Order 18A merely creates a "new form of representative proceedings", as their history demonstrates and as the High Court described the almost identical provisions of the Federal Court Act Part IVA in Wong[48]. I do not accept the defendant's analysis of the new procedure embodied in Order 18A. Consequently in these respects it did not go beyond the Court's rule-making power.

138. A wider attack was made on these rules. It was said that they purported to go beyond the territorial competence of the delegating authority, namely the Parliament of Victoria, inasmuch as any judgments or orders made thereunder might on their natural construction be capable of binding persons outside Victoria, indeed outside Australia. Thus it was argued that persons having no connection with Victoria might be bound by the Court's order without being served in accordance with the Rules and without any knowledge of the proceedings. No doubt the plaintiff here seeks to represent and thus bind such persons, at least a fair reading of its statement of claim would so imply, but the question here is whether the Order is valid. It was said that it could not be read other than as attempting to assert the Court's jurisdiction beyond the four corners of the State whenever such a proceeding is brought, for any class on its natural construction will ordinarily cover people living outside Victoria, often including those overseas. It is, however, accepted law that legislation, especially delegated legislation, will not be construed so as to exceed the competence of the body making the law. That is not to say that the Court cannot exercise jurisdiction in relation to persons and events beyond the jurisdiction. If a defendant can be served within the jurisdiction there is no reason, short of abuse of process, why a court should not resolve any dispute raised by a plaintiff, wheresoever that plaintiff lives and notwithstanding that the events took place outside this State. If a claim comes within those described in the Service and Execution of Process Act 1992 or Rule 7.01 of the Rules there is ordinarily no reason why a plaintiff should not invoke this Court's jurisdiction to have it resolved, subject to the well-known safeguards. There are many aspects to this problem but at the end of the day the Court's judgment will remain enforceable in Victoria and its enforceability elsewhere will depend on the rules of private international law, as modified by treaty. If a judgment exceeds this Court's jurisdiction, it will to that extent be invalid, but Order 18A will not.

141. In short I do not believe the objections made on this score have any relevance to the validity of the rules. It would be unfortunate, however, if we were to leave the impression that judgments or orders under O.18A would be unenforceable outside Victoria. No relevant authority was cited but I do not see why a properly constituted group proceeding should not lead to generally enforceable orders, at least in this country. There would seem little reason, on present authority, why orders made as a result of such proceeding should not be afforded "full faith and credit" under s. 118 of the Constitution, although it is unnecessary here to decide that. Nor do I see any reason why orders made in properly constituted group proceedings should not have effect according to their tenor, as I would understand has been the case with orders made in a variety of representative proceedings in the past, such as debenture-holders' suits, to take but one example, where I have not heard it suggested that the orders would not bind the holders wherever they lived. The potential for representative orders to have the widest effect was described in Templeton v. Leviathan Pty. Ltd.[49].

144. One should remember that the object, where the plaintiff sues as representative, is ordinarily to obtain an order to benefit the whole class and that again the defendant is either sued in its own jurisdiction or has submitted to that of another. The suit will be a waste of time for all unless the rules of private international law will recognise the ultimate order. Groups can and should be defined under Rule 18A.07 with any such limits in mind. Under O.18A the court has wide powers to mould the proceedings so as to prevent procedural injustice, indeed to halt them altogether. Although it should not be assumed that all represented parties will come to know of proceedings at one stage or another and make a choice whether they wish to opt out, the Court has sufficient powers under the rules to control the proceeding or, if necessary, stay it. In all, therefore, there are safeguards which, though arguably imperfect, evidence the rule-making authority's attempt to prescribe a procedure intended to protect those affected. The validity of the Order, however, cannot depend on how effective these may turn out to be in particular cases. Unless the Order inevitably by its operation would have an impermissible extra-territorial effect, it cannot be held invalid for that reason. Here the defendant has not established that it has any such effect.

147. Next it was contended that the impugned rules were invalid because they are inconsistent with sections 34 and 35 of the Supreme Court Act. It was argued, in accordance with well-recognised authority, that where Parliament has made express provision for a matter, a subordinate rule-making authority may not deal with the same subject matter in an inconsistent way. No doubt that is often the case, but each case depends on its own circumstances. Here no such conclusion can be drawn. The sections were inserted at a time when other representative actions were already the subject of rules of court. The added sections did not purport to cover the field of representative actions, nor did they purport to exclude or override alternative modes of proceeding to be found in the rules of court. Moreover nothing in the parliamentary debates would support that conclusion. The alleged ground of invalidity should be rejected.

150. Finally it was argued that the provisions of Order 18A were invalid as being inconsistent with the requirements of Chapter III of the Commonwealth Constitution, as expounded in cases such as Kable v. Director of Public Prosecutions[50]. So it was said that the Order purported to require the Court to resolve justiciable controversies in a manner inconsistent with the proper exercise of judicial power. Here the effect of proceedings under the Order will be, so it was contended, to bind many "parties" to the result of proceedings in which they will have had no adequate opportunity to participate and where, so far as they are concerned, that result would be a hypothetical exercise leading to no more than an impermissible advisory opinion.

153. I cannot accept any of these arguments which, if I may say so, have an air of unreality about them. It is unnecessary to pursue the issue whether, if these characterisations of the rules were made out, they would have the consequences alleged, for they depend on a view of them which has already been rejected above. They would also appear inconsistent with the reasoning of Lehane, J. in Bright v. Femcare Ltd.[51], as confirmed very recently by the Full Court of the Federal Court.[52]

156. It has already been stated that the protections provided to members of the group, though arguably open to some criticism, nevertheless provide sufficient procedural fairness to those members in that they provide for notice to all, the right to opt out, the right to challenge representation and the right to individual assessment of loss and damage, all in the context of proceedings brought on behalf of all members and for their benefit. It is for the Court to ensure that the object of the rules is achieved so far as possible, and it should not be assumed that it will fail. Thus it cannot be properly concluded that they provide for a scheme which is inimical to the duty to afford procedural fairness.

159. Furthermore I cannot accept that the Order provides for hypothetical exercises leading only to advisory opinions so far as group members other than the named plaintiff is concerned. The argument misapprehends the real nature of a representative action. The suit is brought on behalf of all members so as to resolve, in particular, the issues which are common to their claims. The factual basis cannot ordinarily be that applicable only to the named plaintiff for that would be inconsistent with the purpose of group proceedings. Even in the unlikely event that both parties were to acquiesce, the judge ought to stop any misuse of the procedure. So far as the group members' individual rights are concerned, they are not ignored but left to the second stage of the proceeding.

162. In short, therefore, there is no basis for the argument that Order 18A is inconsistent with the Constitution.

165. Inasmuch as I have not dealt with all the vast array of authorities cited to the Court for our assistance, either I have not thought them to be presently relevant or I have not found it necessary to refer further to them for the purpose of expressing these reasons. Those authorities and counsel's carefully worked out arguments have been considered by me for the purpose of reaching my conclusion, but they have not persuaded me that Order 18A is invalid.

168. Consequently I would answer the question raised: "Yes".

174. I agree with Mr. Justice Ormiston that the question asked should be answered yes. In many respects the argument which was presented to us on behalf of the defendant turned on what might one day be attempted (whether soundly based or not) in purported reliance upon Order 18A, as distinct from what the new rules, in terms, do authorise or require. For example a general rule conferring a power of amendment is not invalid because an amendment is attempted going beyond what may lawfully be done in a particular case. The rule will be presumed, very properly, to authorise only that which is within power. The rule will not be then invalid, only its purported application. That distinction was to my mind often ignored in the defendant's argument.

177. It was contended for the defendant that Order 18A went beyond the legitimate determination at law of claims for damages in that it authorised a global assessment of damages, departing from the principle that a plaintiff could recover - and recover only - damages for actual loss and damage suffered and that the defendant should pay neither more nor less than that. If global assessment resulted in a sum which was less than the amount due to the individuals for whom the amount was sought, then the individual claimants must have their legitimate claims diminished (the argument ran); and if more, the defendant necessarily suffered an increased - and thus far unjustified - burden. And the likelihood of its not being too little or too much was remote, given that under Order 18A a vast number of claimants might be brought together in the one proceeding.

180. In my opinion this argument goes not to the validity of Order 18A but to what might be attempted under it (whether correctly or not). In terms rule 18A.25(3) requires the Court not to make an award of damages under paragraph (1)(f) "unless a reasonably accurate assessment can be made of the total amount to which group members will be entitled under the judgment", and thus far it is unexceptionable. A reasonably accurate assessment of damages is ordinarily no more and no less than can be made when unliquidated damages are sought, and it will be altogether different when liquidated damages are claimed. Uncertainty might arise in respect of the number of claimants, but the Court has the power to cope with that; for having adjudicated on the liability of the defendant in a general way, the Court has ample power under Order 18A to fix the number and identity of those who are claiming compensation and to make orders accordingly, calling if it wishes for more precise evidence of particular losses if such is considered necessary or desirable. There is even an express provision for refund to the defendant, should any fund established to answer the group's claims prove excessive: see rule 18A.26(5).

183. If it matters, in this very proceeding the plaintiff is proposing (according to the statement of claim, which is all we have as yet) to call evidence, from all those represented, of the particular loss and damage suffered by each, a step which is unexceptionable and which, if taken, must undermine the present objection which is built upon other possibilities. Unless and until there is some departure from what is presently proposed, the question whether some other course would or would not be authorised by rule 18A.26 does not seem to me to call for decision yet. It is a legitimate presumption that the rule-making power has not been exceeded and as there is no need in my opinion to read rule 18A.26 as, in terms, authorising or requiring a step which is beyond power, there is no reason to conclude by reference to that rule that Order 18A goes beyond power.

186. Much the same can be said, I think, of the other main ground on which Order 18A was challenged: its territorial operation. It was submitted that Order 18A authorised the inclusion in the group represented by the plaintiff of those who had no recognised connection with the jurisdiction - Victoria - and on that account Order 18A went beyond the rule making power of the Court. Indeed it was said, no doubt in terrorem, that Order 18A would be beyond the competence even of a State Parliament. But again the argument seems to me to challenge what might be attempted under Order 18A, rather than the new rules themselves. They are silent as to jurisdictional limits. I offer no opinion at all about whether it would be possible for a plaintiff, by purporting to represent those beyond the jurisdiction, to bind them to the result of the proceeding; that is not the question put to us for decision. Order 18A, on its face, does not, in terms, authorise or require something which is beyond the rule-making power and, given the presumption that the rule making power is not exceeded, I see nothing in the argument about territorial operation to justify the conclusion that Order 18A goes beyond power.

189. To emphasise the point, the procedure allowed under Order 18A is one requiring judicial management from the start: Rule 18A.08. At an early stage, therefore, the Court will no doubt be looking at the whole question of the representation asserted by the plaintiff in the initial pleading, when considering, as it must, to whom notice should be given and what form that notice should take: see rules 18A.22 and 18A.23. The whereabouts of those to whom the notice is directed will then be a material consideration. The Court has the power to divide the main group into sub-groups, if appropriate, and even to order that the proceeding not continue under Order 18A at all: rule 18A.13. Unless resolved only to settle the proceeding, the defendant will presumably have an interest in confining the group being represented as narrowly as possible and, if there is any doubt about the jurisdiction of this Court over those who, for example, reside outside Victoria, I should have thought that the matter could be dealt with by appropriate orders. Whether such doubts are significant these days, particularly in view of the possibilities of cross-vesting, is of course an altogether different matter and one on which I offer no opinion. Again it will be only if a step is attempted which, according to the one side or the other, cannot properly be justified by Order 18A that the Court will be required to determine how far it is lawful, in the particular circumstances of the case, to extend the reach of the proceeding. That is no ground for ruling that Order 18A is itself beyond power.

192. It is implicit in the foregoing that in my view Order 18A can be sustained as a rule of practice and procedure, within the meaning of s.25(1)(f)(i) of the Supreme Court Act 1986. It was submitted on behalf of the defendant that that could not be so because Order 18A in effect "annihilated" an injured person's right to sue, at his own choice, compelling him or her instead to join in a group proceeding in which he or she was included, at the whim of the plaintiff. By this means, it was contended, Order 18A converted what was a choice - or at least "a right to choose" - into a series of discretions vested in the Court. On this aspect, however, the requirement for notice, which is fundamental to Order 18A, becomes critical and in my view that requirement was under-valued by the defendant's submission. Notice, if properly given, will alert those within the group described by the plaintiff to what is being done - or sought to be done - on their behalf, and any person within that group, as so described, may elect to "opt out". All this means is that within the time allowed (and even beyond it if there is reason to extend the time) one whom the plaintiff seeks to represent may signify that, so far as he or she is concerned, there is no consent to participating. Conversely, the failure to "opt out", where notice has been properly given, may be tantamount to consent. Under Order 18, the Court would assume jurisdiction even over a defendant who, though not served, was given notice of the order once made and it seems to me little different in kind to assume that one for whose benefit the proceeding is brought (at least according to the plaintiff) accepts that position if, once given the opportunity to abstain from participating, he or she does not do so. No doubt in this respect the procedure described in Order 18A is somewhat novel, but that is only to measure it against prior practice. These days we hear so often that the Courts must adapt and move with the times and such novelty as exists in Order 18A does not, I think, mean that the new rules go beyond what may fairly be called rules of practice and procedure.

195. Were it otherwise, I would agree that Order 18A can be sustained under s.25(1)(a) of the Supreme Court Act as Ormiston, J.A. says, on the ground that Order 18A deals with a "matter" that is dealt with in the Rules of Court that were in force on 1 January 1987. I refer in particular to those rules dealing with representative proceedings, especially Order 18. Of course Order 18A is more detailed than Order 18 and introduces procedures that are somewhat novel but the "matter" is nonetheless the same. If necessary, s.25(2) could be called in aid, allowing for amendment of those rules which in 1986 were specifically validated by the Victorian Parliament: see Supreme Court (Rules of Procedure) Act 1986 s.4. An argument that s.4 ceased to have effect upon its repeal by the 1986 Act, though advanced initially, was withdrawn in the course of argument.

198. Subject to the foregoing, I agree in the judgment of Ormiston, J.A.

203. I have had the advantage of reading in draft the reasons for judgment prepared by Ormiston, J.A. I agree that the question asked should be answered yes and for the reasons given by his Honour for arriving at this conclusion.

[1] cf. Harrington v. Lowe (1996) 190 C.L.R. 311 at 341-2 per Kirby, J.; Taylor v. Guttilla (1992) 59 S.A.S.R. 361 at 366-8 per King, C.J.; at 379-80 per Olsson, J.

[4] Compare Poyser v. Minors [1881] 7 Q.B.D. 329 per Lush, L.J. at 333 and, especially, Bramwell, L.J. at 337-8.

[5] Workplace Relations and Other Legislation Amendment Act 1996, Schedule 16, Item 52.

[6] 2nd ed., p.619, and 1st Supp., p.89.

[17] [1994] VicRp 16; [1994] 1 V.R. 237.

[18] [1998] 3 V.R. 833.

[19] [1991] HCA 54; (1991) 174 C.L.R. 64 at 137.

[20] "Representative Proceedings in the Federal Court of Australia", (1996-97) 15 Aust. Bar Rev. 91 at p.97.

[21] [1999] F.C.A. 1107.

[22] [2000] F.C.A. 229.

[23] [1998] FCA 598; (1998) 83 F.C.R. 424.

[25] "Consumer Class Actions in Canada - Some Proposals for Reform", (1975) 13 Osgoode Hall L.J. 1 at 85, discussed in the body of the article at p.60.

[27] pp.54-62. The fluidity of this expression was criticised by the Commission at 536-7 of its report. It comes from the American cases. See, for example, Eisen v. Carlisle & Jacquelin [1973] USCA2 348; 479 F. 2d 1005 (Second Circuit, 1973).

[28] [1990] VicRp 5; [1990] V.R. 51.

[29] Inserted by the Supreme Court (Chapter I Amendment No. 11) Rules 1999, made 9 December 1999.

[30] Within the meaning of para. (f) of s.25(1).

[31] (1881) 7 Q.B.D. 329 at 333.

[32] [1945] HCA 52; (1945) 70 CLR 459 at 489.

[34] Report No. 46 of the Australian Law Reform Commission.

[35] Para 323; see also paras 16, 67 and 116

[36] Hansard, House of Representatives,14 December 1991 p.3174

[37] [1999] FCA 1107; 165 ALR 515 at para 117. Although many orders in that case were reversed on appeal, [2000] FCA 229; 170 A.L.R. 487, nothing was said by the Full Court to doubt this observation.

[38] [1998] FCA 598; (1998) 83 FCR 424.

[39] As to which, see below at paras. [[] to [].

40] Not by design, but the practical results should be acknowledged.

[41] The present rules were made almost precisely 800 years after the first recorded (to my knowledge) representative suit, Master Martin Rector of Barkway v. Parishioners of Nuthampstead (c.1199) E.S. Roll No. 210 (Ecclesiastical Court of Diocese of London) in Select Cases from the Ecclesiastical Courts of the Province of Canterbury, 95 Selden Society 8, ed. Adams and Donahue. Not only were the parishioners made "defendants" to the rector's claim but they also made a cross-claim that spiritualia be provided at a local chapel. The extensive history of class actions is examined in detail by Professor Stephen Yeazell in Medieval Group Litigation to the Modern Class Action (1987) Yale University Press and by Hazard, Gedid & Sowle, in An Historical Analysis of the Binding Effect of Class Suits, 146 U. Pa. L. Rev. 1849 (1998).

[42] See the former Rules of the Supreme Court (1985 and earlier) Order XVI rules 8,9,10,32,40 and 46, and the present Orders 16 and 18.

[43] Under the N.S.W. equivalents of O.XVI.r.9 and O.18.

[44] [1995] HCA 9; (1995) 182 C.L.R. 398 at 415-420 and 427-430.

[45] [1999] HCA 48; (1999) 165 A.L.R. 373; HCA 48 at paras 13-18.

[49] [1921] HCA 55; (1921) 30 CLR 34 at 57-58 per Knox C.J. and at 76-78 per Starke J. Cf_. Cox v. Dublin City Distillery Col.. Ltd_. (No. 3) [1917] 1 I.R. 203.

[50] [1996] HCA 24; (1996) 189 CLR 51.

[51] [1999] FCA 1377; (1999) 166 ALR 743.

[52] Femcare Ltd. v. Bright [2000] F.C.A. 512, decided after argument in the present matter was concluded.