Richmond Valley Council v JLT Risk Solutions Pty Ltd [2021] NSWSC 383

Supreme Court New South Wales

Medium Neutral Citation: Richmond Valley Council v JLT Risk Solutions Pty Ltd [2021] NSWSC 383 Hearing dates: 5 and 19 March 2021 Decision date: 16 April 2021 Jurisdiction: Equity - Commercial List Before: Hammerschlag J Decision: (1) the defendant's motion dated 9 December 2020 is dismissed (2) order that certain questions are common to group members and are appropriate to go to trial Catchwords: REPRESENTATIVE PROCEEDINGS – Civil Procedure Act 2005 (NSW) (the Act) pt 10 – motion for an order that the proceedings be declassed pursuant to s 161 of the Act – motion for a "Merck order" determining that certain questions are common for the purpose of the trial in accordance with s 175(1)(c) of the Act – plaintiff and group members are local councils in New South Wales which were parties with the defendant to a Deed establishing a scheme for the purposes of purchasing for the councils insurance for public liability (including personal injury, damage to property and product liability) and professional indemnity, and to provide for indemnity for them in respect of liability not covered by such insurance – the plaintiff claims that the defendant owed to it and the group members, and breached, duties at general law and in contract to recommend and arrange cover at the best premium rates that were reasonably available – the plaintiff claims that the defendant owed to it and to each group member, and breached, fiduciary duties to act in their best interests and not to prefer its own financial interests to theirs – the plaintiff sought a Merck order and the defendant declassing orders – whether there is at least one substantial common question of law or fact to which the claims of the plaintiff and the group members give rise HELD – that the declassing motion be dismissed – the proceedings are appropriate to continue as a class action – there are identifiable substantial common questions of law or fact – orders that certain questions contained in the Schedule are common to group members and are appropriate to go to trial Legislation Cited: Civil Procedure Act 2005 (NSW) Federal Court of Australia Act 1976 (Cth) Local Government Act 1993 (NSW) Cases Cited: Bright v Femcare Ltd (2002) 195 ALR 574 Ethicon Sàrl v Gill [2021] FCAFC 29 ISG Management Pty Ltd v Mutch (2020) 385 ALR 146 Merck Sharp & Dohme (Australia) Pty Ltd v Peterson (2009) 355 ALR 20 Timbercorp Finance Pty Ltd (in liq) v Collins; Timbercorp Finance Pty Ltd (in liq) v Tomes (2016) 259 CLR 212 Wong v Silkfield Pty Ltd (1999) 199 CLR 255 Category: Procedural rulings Parties: Richmond Valley Council – Plaintiff JLT Risk Solutions Pty Ltd – Defendant Representation: Counsel: P. Crutchfield QC with R. Yezerski and C. Mitchell – Plaintiff M.J. Darke SC with I.J.M. Ahmed and A.M. Hammond – Defendant