F.1 Some Fundamental Concepts
30 In assessing the strength of these contentions, it is appropriate to commence by paying attention to some fundamental aspects of how a class action operates. I have addressed this topic a number of times including, in some detail, in Dillon v RBS Group (Australia) Pty Ltd [2017] FCA 896; (2017) 252 FCR 150 (at 158-163 [42]-[60]), and in section G of my judgment in Dyczynski v Gibson [2020] FCAFC 120; (2020) 280 FCR 583 (at 661-666 [325]-[343]). I draw upon the observations made in those cases below.
31 It is unnecessary to go into the precise details, but the group members were defined on commencement of this class action as being persons who purchased the Relevant Vehicles in a particular way during the Relevant Period. Some of these persons have opted out, leaving the current crop of group members who are part of, but not party to, the class action. It may be a difficult task, but it would be theoretically possible to compile a list of those persons - there is sufficient certainty of composition.
32 Like the applicants, the group members had, at the time of commencement, a "claim" against Toyota (as that term is used in s 33C of the Act). The claim of each claimant is not the cause of action pleaded and has an existence independent of, and antecedent to, this class action. The claims, of course, are in respect of, or arise out of, similar or related circumstances and give rise to substantially common issues of law or fact, but this does not mean that each claimant has identical causes of action or entitlements to relief that could be maintained by that claimant in the group member's individual case against Toyota.
33 Let us take some possible examples (which involve nothing more than speculation for the purposes of illustration). Group Member A, who thus far has played no active part in the class action (and indeed may not presently be aware of its existence), may have purchased his car (a Relevant Vehicle) but that car, for some reason, may be alleged to have some manufacturing problem particular to that car, which has nothing to do with the alleged defect pleaded by the applicants. Group Member B may also be ignorant about being a group member but is an environmental warrior with an acute interest in the removal of pollutant emissions from motor cars and, in purchasing his car, may have allegedly relied upon some express individualised representation made to him by a Toyota employee. They also may have suffered quite different types of loss (actionable under the ACL or at common law), the details of which are all currently unknown to the applicants and those who advise them. The individual claims and the individual causes of action of Group Member A and Group Member B may be different from one another (and from those of the applicants), but are sufficiently connected to form part of the grouped claims the subject of the class action. Incidentally, there is nothing problematical about the precise details of group members' claims not being able to be ascertained at this time. The group member claims were pleaded in this class action at a level of generality sufficient to show compliance with s 33H of the Act, but a high-level pleading of those claims was not required just because this was a class action: see Dillon v RBS Group (at 160 [48]).
34 So how does Pt IVA deal with these potentially disparate, yet still sufficiently connected, claims?
35 Usually, but not invariably, the scheme of Pt IVA contemplates that the individualised claims of group members would occur after an initial trial of common issues. Following the determination of common issues at the initial trial, orders are made pursuant to s 33ZB.
36 As noted above, the "statutory estoppel" means the non-party group members are bound by the determination of common questions. The answer to the common questions might (but might not) determine the individual claims of group members. As by now should be obvious, this will depend upon the nature of the claim, and the nature of the answer. In the common circumstance where the answer to a common question or questions is not determinative, it will be necessary for the group members' claims to be determined individually, usually following a "declassing" order. At this time, the dictates of procedural fairness will require the claim to be sufficiently pleaded or otherwise particularised.
37 But there can be departures from this norm. Let us assume the individual claim of Group Member A gives rise to a limitations issue not present in the individual claim of the applicants but that does affect a number of other group members - it might be thought useful for Group Member A to have his claim determined at the initial trial as a "sample" group member (or making Group Member A a "sub-group representative party" pursuant to an order made under s 33Q of the Act). In these circumstances, Group Member A would, of course, be required to plead out his claim and would participate in the initial trial as if he was a party.
38 Additionally, as a matter of theory, but not present in this class action, it might be that the Court considers it utile and consistent with the overarching purpose to separate out and determine before all other issues a common issue, which might be determinative of the claim of all or some group members. Individual group members would usually play no part in this hearing as the applicants (with the statutory authority to deal with the common aspects of group member claims) would engage with the respondent as to the resolution of this common issue. In this case, Pt IVA contains a protection: absent leave being granted to the contrary, such a separate determination of a final issue could not occur without giving the group members a right to opt out: s 33J(4). Hence, the "statutory estoppel" will only take effect if the group member has not opted out.
39 But the regime also provides sufficient flexibility if the Court decides not just to identify whether a group member has a claim, but to go further to determine that individual claim by resolving any relevant common issues and also issues bespoke to the group member. If the Court does so, as explained in Dyczynski (at 665-666 [341]-[242]), this amounts to a determination of the controversy between one actor (the group member) and another (the respondent). Because an applicant in a class action is not a privy in interest of the group members with respect to the group members' individual claims, it is fundamental that such a controversy is not allowed to be determined without hearing from a non-party group member to the extent the controversy involves issues other than common issues. Hence, if, unusually, the claim of the group member is to be determined at trial and otherwise than by determination of purely common issues, it is necessary for orders to be made identifying that this step is occurring, that the group member has notice it is occurring and has the opportunity of adducing evidence and making submissions as to the merits of the claim.
40 At least three important points can be drawn from the Pt IVA regime in general and, in particular, from this survey of the way in which the Court can determine group member claims. The first is that the class action regime provided for in this Court by Pt IVA is procedurally unique; its evident purpose, after all, was to displace generally understood procedures. The second, connected to the first, is that care must be taken in transposing general law concepts as to rights and entitlements of parties and finality (developed in ordinary inter partes litigation) acontextually, and without adaption to class action procedures, which usually do bifurcate aspects of claims in dealing with the claims of non-parties. The third is the manifest flexibility of the scheme. In grouping and dealing with the claims of non-parties, wide powers are granted to the Court, and these powers should not be constrained by making implications or imposing limitations not found in the words used in Pt IVA.