Carnie v Esanda Finance Corp Ltd [1995] HCA 9

High Court of Australia Mason C.J. Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ. Carnie v Esanda Finance Corp Ltd [1995] HCA 9

ORDER Appeal allowed. Set aside the orders made by the New South Wales Court of Appeal on 18 November 1992. Remit the matter to the Court of Appeal for consideration of the question whether it should otherwise order, within the meaning of the Supreme Court Rules 1970 NSW, Pt 8, r. 13(1), that the action not continue as a representative action. The respondent to pay the appellants' costs of the appeal to this Court and of the appeal to the New South Wales Court of Appeal.

Cur. adv vult.

The following written judgments were delivered:—

1995, Feb. 23 Mason C.J., Deane and Dawson JJ.

Subject to the comments which follow, we agree with the reasons given by Toohey and Gaudron JJ. for allowing the appeal. We would, however, remit the matter to the Court of Appeal for the purpose of considering whether an order should be made that the action not continue as a representative action.

We do not agree with the statement of Kirby P. in the Court of Appeal that the majority in that Court (Gleeson C.J. and Meagher J.A.) failed to answer the correct question because their Honours assumed that the appellants were bringing a class action. Properly understood, the majority concluded that the particular procedure adopted by the appellants in this case — which their Honours happened to characterize as a "class action" — was not within the Supreme Court Rules 1970 NSW, Pt 8, r. 13(1). This conclusion is contained in the following passage of Gleeson C.J. [1] :

To say that each borrower has the same interest in the proceedings as [the appellants], for the purpose of the rule relating to representative actions, goes well beyond received notions of the scope and purpose of the rule. 1. (1992) 29 N.S.W.L.R. 382, at p. 389. Meagher J.A. agreed with the Chief Justice in a short concurring judgment.