New South Wales Supreme Court CITATION : Tuxford & 2 Ors v State of NSW [2004] NSWSC 445 HEARING DATE(S) : 15 April 2004 JUDGMENT DATE : 27 May 2004 JURISDICTION: Common Law JUDGMENT OF : Master Harrison DECISION : (1) The defendant's notice of motion filed 11 September 2003 is dismissed; (2) The defendant is to pay the plaintiff's costs as agreed or assessed. CATCHWORDS : Transfer from District Court - continuation of representative action - Task Force BAX District Court Act 1973 - s 145 LEGISLATION CITED : District Court Rules 1973 - Part 7 r 15 Supreme Court Rules 1970 (NSW) - Part 8 r 13 CASES CITED : Carnie & Anor v Esanda Finance Corporation Limited (1995) 182 CLR 398 Paul Tuxford (First Plaintiff) Raymond James Lambie (Second Plaintiff) PARTIES : David William Rope (Third Plaintiff) State of New South Wales (Defendant) FILE NUMBER(S) : SC 12023/2003 Mr N Francey (Plaintiffs) COUNSEL : Mr J Maconachie QC with Mr Mallon (Defendant) Oates & Smith (Plaintiffs) SOLICITORS : Crown Solicitor (Defendant) IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION MASTER HARRISON THURSDAY, 27 MAY 2004 12023/2003 - PAUL TUXFORD & 2 ORS v STATE OF NEW SOUTH WALES (No 2) JUDGMENT (Transfer from District Court - continuation of representative action - Task Force BAX) 1 MASTER: By summons filed 8 August 2003 the plaintiffs seek, pursuant to s 145 of the District Court Act 1973 (NSW) (DCA), an order transferring proceedings No 8312/2000 in the District Court of NSW to the Supreme Court of NSW. The first plaintiff is Paul Tuxford. The second plaintiff is Raymond James Lambie. The third plaintiff is David William Rope. The defendant is the State of New South Wales. I gave an ex-tempore judgment (see separate reasons for judgment) and made an order pursuant to s 145 of the DCA that the District Court proceedings be transferred to this Court. 2 By notice of motion filed 11 September 2003 the defendant seeks an order that in the event that the District Court proceedings are transferred to this Court they not be continued as representative proceedings in accordance with Part 8 r 13 of the Supreme Court Rules 1970 (NSW) (SCR). These proceedings were commenced in the District Court on 20 October 2002. The plaintiffs are all former Police officers who were seconded to Task Force Bax (TFB). The plaintiffs allege that they suffered psychological injuries as the result of an intrusive audit performed on the offices of TFB during the period 24 to 27 October 1997. The causes of action pleaded in the ASC are negligence, false imprisonment and intentional acts causing nervous shock. 3 Since 20 October 1997, when these proceedings were commenced in the District Court, the matter has always been pleaded as a representative pleading in accordance with Part 7 r 15 of the District Court Rules 1973 (NSW) (which is in identical terms to Part 8 r 13 of the SCR). For the last six years this matter has been the subject of a number of directions hearings in the District Court. As previously stated, the statement of claim names Paul Tuxford as the first plaintiff, Raymond James Lambie as the second plaintiff and David William Rope as the third plaintiff. The class has been further defined as the 17 individuals specified in the plaintiffs' solicitor's letter to defendant's solicitor dated 10 October 2001 (the three named plaintiffs are included in the 17). The defendant has been able to plead to the statement of claim and has filed a defence so it is now some six years after proceedings began that the defendant seeks that the "court otherwise order" so that these proceedings can longer continue as a representative action. 4 Part 8 r 13 of the SCR provides: "13 Representation: concurrent interest (1) Where numerous persons have the same interest in any proceedings the proceedings may be commenced, and, unless the Court otherwise orders, continued, by or against any one or more of them as representing all or as representing all except one or more of them. … (4) A judgment entered or made in proceedings pursuant to this rule shall be binding on all the persons as representing whom the plaintiffs sue or, as the case may be, the defendants are sued but shall not be enforced against any person not a party to the proceedings except with the leave of the Court. …" 5 Both parties referred to the High Court decision of Carnie & Anor v Esanda Finance Corporation Limited (1995) 182 CLR 398. At 404 Mason CJ, Deane and Dawson JJ stated that all that Part 8 r 13(1) of the SCR requires: "is numerous parties who have the same interest. The sub-rule is expressed in broad terms and it is to be interpreted in the light of the obvious purpose of the rule, namely, to facilitate the administration of justice by enabling parties having the same interest to secure a determination in one action rather than in separate actions. It has been suggested that the expression 'same interest' is to be equated with a common ingredient in the cause of action by each member of the class (Prudential Assurance Co. Ltd. v Newman Industries Ltd., [1981] Ch. 229 at p255). In our view, this interpretation might not adequately reflect the content of the statutory expression. It may be it extends to a significant common interest in the resolution of any question of law or fact arising in the relevant proceedings. Be that as it may, it has now been recognized that persons having separate causes of action in contract or tort may have 'the same interest' in proceedings to enforce those causes of action. Much as one might prefer to have a detailed legislative prescription by statute or rule of court regulating the incidents of representative action, r.13 makes provision for an action to proceed as a representative action in a context in which there is no such legislative prescription. The absence of such a prescription does not enable a court to refuse to give effect to the provisions of the rule. Nor, more importantly, does the absence of such prescription provide a sufficient reason for narrowing the scope of the operation of the rule, as the Court of Appeal did, without giving effect to the purpose of the rule in facilitating the administration of justice. Once the existence of numerous parties and the requisite commonality of interest are ascertained, the rule is brought into operation subject only to the exercise of the court's power to order otherwise. And that leaves for consideration the question whether the case is one in which the court should, in the exercise of that power, make an order that the action should not continue as a representative action. Relevant to that question are some of the comments of Gleeson C.J. in the course of explaining his concern about the absence of a detailed legislative prescription. In that context, Gleeson C.J. mentioned the need to deal with such important matters as: (1) whether or not consent is required from group members; (2) the right of such members to opt out of the proceedings; (3) the position of persons under a disability; (4) alterations to the description of the group; (5) settlement and discontinuance of the proceedings; and (6) the giving of various notices to group members." 6 In separate judgments in Carnie, Brennan and McHugh JJ reasoned that the rule would come into operation in circumstances where there was a community of interest in the resolution of any substantial issue of law or fact arising in the proceedings; while Toohey and Gaudron JJ pointed to the need for the existence, of merely a significant question common to all members of the class. 7 The defendant submitted that the plaintiffs do not all have the same interest. The plaintiff submitted that the common issues include that firstly, the members of the class were serving members of the NSW Police Service; secondly, the members of the class were members of operation TFB at the relevant time; thirdly, the nature and extent of the investigation by the senior officers; fourthly, the raid on the offices of TFB; fifthly, restriction of communication and movement; sixthly, whether as a question of law the members of the class were imprisoned; seventhly, if so, whether the imprisonment was lawful; eighthly, whether the orders given by the senior offices were lawful within clause 9(1) of the Police Service Regulations 1990 (NSW); ninthly, the extent and nature of the duty of care owed by the defendant to the members of the class; tenthly, whether the defendant was in breach of its duty of care; eleventhly, whether the defendant's actions were capable in law and in fact of causing injury; and twelfthly, causation. 8 The group members are defined. The group is not one at large. Members of the group have elected to opt into the proceedings. There are no plaintiffs under a legal disability. At this stage, it is the same firm of solicitors that act for all the members of the group who have elected to take these proceedings. The defendant has been able to plead to the statement of claim because it has filed a defence. If a representative of the group decides to discontinue his claim in the proceedings, an order for costs may be made against him even if he or she is considered a non-party. 9 Further, the defendant referred to a list of those members of the BAX task force that were on duty on 24 October 1997 and submitted that those who were not on duty that day cannot be considered members of the group in relation to the causes of action and that there is no common interest between them and the representative class. However, the events complained of took place over a number of days namely between 24 to 29 October 1997 not just on 24 October 1997. 10 It is my view that a great deal of court time will be devoted to ascertaining what took place during the file audit. It is the task force audit that is the common ingredient or same interest that gives rise to these representative proceedings. There are events common to the plaintiff, separated neither by time nor geography. In my view there will be a saving of court time if these matters are heard as a representative action. 11 The assessment of damages (if liability is found in favour of the plaintiffs) will need to be assessed on an individual basis. But even then there would be commonality on wage rates, the promotional stream and other entitlements that Police officers receive while members of the force. The damages component of the claim may be mediated or amenable to settlement by negotiation between the parties and may not be the subject of a trial. 12 After considering the above factors, it is my view that these proceedings should continue as a representative action. I decline to "otherwise order". The defendant's notice of motion filed 11 September 2003 is dismissed. 13 Costs are discretionary. Costs usually follow the event. The defendant is to pay the plaintiffs' costs as agreed or assessed. 14 The court orders: (1) The defendant's notice of motion filed 11 September 2003 is dismissed. (2) The defendant is to pay the plaintiffs' costs as agreed or assessed. ********** Last Modified: 05/28/2004 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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