Lam v Rolls Royce PLC (No 2) [2014] NSWSC 204

Supreme Court New South Wales

Medium Neutral Citation: Lam v Rolls Royce PLC (No 2) [2014] NSWSC 204 Hearing dates: 7 March 2014 Decision date: 07 March 2014 Jurisdiction: Common Law Before: Beech-Jones J Decision: The Plaintiff to pay Qantas' reasonable costs of attending the directions hearing on 7 March 2014 on the ordinary basis, such costs to be payable forthwith. Catchwords: CLASS ACTIONS - case management - obtaining information from a third party in relation to composition of the class - steps to be taken to contact remaining members of the class - costs of third party of attending in response to proposed orders. Legislation Cited: - Civil Procedure Act 2005 (NSW), s 183 Cases Cited: - Lam v Rolls Royce Plc [2013] NSWSC 805 Category: Interlocutory applications Parties: Sandy Lam (Plaintiff) Rolls Royce PLC Reg No 4706930 (Defendant) Qantas Airways Limited (Applicant) Representation: Counsel: J.E. Rowe (Plaintiff) N.E. Chen (Defendant) K. Tran (Applicant) Solicitors: LHD Lawyers (Plaintiff) Holman Fenwick Willan (Defendant) Minter Ellison (Applicant) File Number(s): 2013/037342

ex tempore Judgment 1On 19 June 2013 I gave an interlocutory judgment in these proceedings in which I rejected an application by Qantas Airways Ltd ("Qantas") to set aside a subpoena issued at the request of the plaintiff: Lam v Rolls Royce Plc [2013] NSWSC 805 ("Lam"). I described the background to these proceedings at Lam [3] to [7]. I will not repeat that discussion. 2Since that judgment the plaintiff's solicitors have obtained the passenger manifest for flight QF32. They have been making attempts to contact the various passengers and the crew to ascertain their attitude to the proceedings. A point has been reached where, according to the plaintiff, there is an outstanding group of twenty-two persons who, despite their best efforts, they have not been able to obtain any reliable contact details concerning. In part, this situation appears to have come about because these passengers booked their flight with Qantas through various travel agencies, some of which are overseas, so that the contact details merely reflected the contact details for those travel agencies. 3At an earlier directions hearing I queried the description of the relevant class. Paragraph 15 of the Statement of Claim defines the relevant group members as being "all persons on the aircraft who suffered psychological injury as a result of the engine failure". At first blush, there appears to be a difficulty in defining a class by reference to those who suffered psychological injury. The difficulty may only be a practical one in the sense that if a judgment on some common issue of fact or law is made, the identification of exactly who on the aircraft was bound by that determination would in part seem to depend upon whether they suffered psychological injury. 4In any event, I previously floated the possibility with the parties of redefining the class so that it was either described as "the passengers and crew on the flight" or descended to the identification of those persons. Given that there are contact details for the bulk of them, this would have consequences for the orders for service of the relevant notices, in that the relevant notices could be sent to the individuals concerned rather than attempting to bring it to their attention by some form of general notification. In respect of those persons for whom no contact details were available, I also floated the prospect of specifically carving them out of the description of the class. In Lam at [18] and following, I described "one potentially unusual feature of the group", being the fact that it consists of persons whose identity is known. I also noted that the group is likely to be geographically dispersed not only across this country, but around the world. The consequence of those matters is that notification via television, radio, print media or even social media may not have much prospect of reaching all the members of the class. Hence, it may be that the safer course is to exclude members of the class for whom no individual contact details are available. 5I reiterate that these were preliminary views. It will be open for any party to argue to the contrary if they wish. 6The matter was listed today to allow the plaintiffs to make further inquiries of Qantas in the interim about the contact details for the passengers which have not been apparently provided by Qantas in answer to the subpoena. An affidavit has been read which annexes correspondence between the plaintiff's solicitors and Qantas' solicitors. The end result is that there is a list of twenty-two names in respect of whom the plaintiff asserts no contact details were provided when Qantas produced documents in answer to the subpoena noted above. 7There is some dispute by both Rolls Royce and Qantas as to whether that statement is accurate. A schedule has been provided that has been prepared by Rolls Royce which sets out the details of various travel agencies concerning those passengers. In relation to one of those travel agencies, it appears that they have an association with Qantas. The plaintiff's solicitors had previously written to them, seeking that they pass on a letter concerning the proceedings. The response of the agency was that they could not disclose any personal data without the express instruction from Qantas. When this was brought to Qantas' solicitor's attention in February 2014, they wrote a letter outlining various concerns, but indicating that Qantas provided consent. Since that time there has been an unfortunate stand-off between Qantas' solicitors and the plaintiff's solicitors as to who is to advise that agency that Qantas has consented. I will address that in the orders that I make. 8Prior to today, the plaintiff provided a set of proposed orders which sought the compulsory extraction of information and further documents from Qantas in an endeavour to obtain contact details for the last twenty-two passengers that I have referred to. There is an interesting question as to the scope of the power conferred by s 183 of the Civil Procedure Act 2005 (NSW) to make orders of that kind against non-parties to facilitate the further progress of the proceedings. In the end it is not necessary at present to embark upon that analysis. 9Counsel for the plaintiff, Mr Rowe, indicates that the process of extracting information from Qantas is one that his client is only seeking to embark upon if the Court in effect requires it. He apprehended that the Court might not adopt the course of carving out the identities of various passengers for whom no contact details could be obtained, or might have otherwise considered that it was obligatory for the plaintiff to take the steps suggested in the proposed orders before any such carve-out could be considered. 10Given the status of Qantas as a non-party and the onerous nature of the orders sought, I can indicate that, even if I considered the Court had the power under s 183 to make such orders, it would not require the plaintiff to seek them before it took the step of carving out a particular passenger from the proposed class. Instead, the only relevant "obligation" of the plaintiff is to take some further limited, but albeit reasonable, steps in relation to the remaining twenty-two passengers, a guide to which I will provide. 11The first is that in respect of those passengers for whom a local travel agent contact is available, the plaintiff should issue a subpoena in narrow terms seeking any contact details for the relevant passengers. 12Second, in respect of any overseas travel agency, the plaintiff should write to that agency in similar terms to the letter that it sent to the travel agency associated with Qantas that I have referred to. 13Third, in relation to the particular travel agency that is associated with Qantas, the plaintiff should send to that travel agency the letter from Qantas' solicitors dated 26 February 2014 advising of Qantas' consent and again request the information previously sought. 14Otherwise it is not possible at this point to indicate an exhaustive list of all the steps that should be taken before the Court would be minded to carve a particular passenger out of the class, but at least in the next period those steps should be taken. 15The future progress of the proceedings will involve the matter being adjourned for a period of ten weeks to enable those steps and any reasonable, but albeit limited, follow-up steps to be taken. The plaintiff will need to bring in a proposed amended statement of claim concerning the description of the class as well as proposed orders in respect of closing the class, the issue of the appropriate notices and their form of service. 16In addition, I will order Qantas to send a copy of its solicitor's letter of 26 February 2014 to the travel agent in question, drawing their attention to the part of the letter that indicates Qantas' consent to the provision of communication. I think that this will bring firmly to that agent's attention the fact that Qantas does so consent. 17As I have stated, the scope of s 183 is a somewhat large question, but in circumstances where Qantas has previously been subpoenaed and, more importantly, is on notice of far more draconian orders, it has had sufficient notice that some type of order to that effect may be made against it. Otherwise I consider that s 183 clearly extends to authorising that relatively limited step. 18Accordingly, the Court orders that: (1)The proceedings be adjourned to 23 May 2014 at 10am. (2)The plaintiff to serve any proposed amended statement of claim on or before 12 May 2014 and to send a copy by email to the Associate to Beech-Jones J by the same date. (3)The plaintiff to serve any draft orders and notices that it seeks the Court to approve or make on or before 12 May 2014 and to send copies thereof by email to the Associate to Beech-Jones J by that date. (4)Qantas Airways Ltd send a copy of its solicitor's letter dated 26 February 2014 to the Managing Director, Trailfinders, 23 Abingdon Road, London W8 6AH United Kingdom, within seven days hereof and draw to their attention that part of the letter that is headed "Consent To Provision of Communication". (5)On or before 16 May the plaintiff to file and serve an affidavit setting out the steps taken to either contact, or ascertain the contact details of, the persons listed in annexure O to the affidavit of Michael Hyland sworn 6 May 2014. [Parties addressed on costs.] 19An application has been made by a legal representative on behalf of Qantas for an order that the plaintiffs pay their costs on an indemnity basis of and incidental to their attendance at this directions hearing. 20As noted, prior to the directions hearing, the plaintiffs served certain proposed consent orders, which I have just outlined. It was necessary for Qantas to attend at the directions hearing to put its position in relation to those proposed orders. 21As I have stated, the background was that Qantas answered a subpoena that was issued to it in 2013. The proposed consent orders were in effect consequential on its compliance with the subpoena and was otherwise analogous to a subpoena in that it sought the compulsory extraction of information from a non-party. 22Rule 33.11 of the Uniform Civil Procedure Rules confers on the Court a power to order the issuing party to pay the amount of any reasonable loss or expense incurred in compliance with a subpoena. If such an order is made, the cost to the issuing party in paying the costs of the subpoenaed party forms part of that issuing party's costs of the proceedings. They can become a disbursement which may be recovered by the plaintiff if they are ultimately successful in the proceedings. The ordering of the issuing party to pay those costs does not reflect any finding of fault on the part of the issuing party but instead reflects the imposition upon the subpoenaed party of having to provide information under force of law. 23The circumstances in which a costs order can be made in favour of a non-party are limited, but in my view the requirement of Qantas to attend today was clearly analogous to that of a party who must comply with a subpoena. In the ordinary course, if a non-party is required to attend court in respect of the seeking of orders for the compulsory extraction of information against them, they have a reasonable expectation that a costs order will be made in their favour but that it will operate in the manner I have described. In this case, the perceived necessity to seek the orders against Qantas arose from a concern on the behalf of the plaintiffs that the Court would insist upon them taking further steps to ascertain the contact details of those persons on the flight whom they had not been able to contact to date. In that respect, there is no basis for attributing fault to the plaintiffs in foreshadowing to Qantas that orders would be sought. Nevertheless, given Qantas' status as a non-party, in my view they have a reasonable expectation that if they are required to attend court in respect of such an application, they will obtain an order for costs in their favour. 24Qantas claims that it is entitled to indemnity costs by reason of a combination of the oversight of the plaintiff in failing to appreciate that he had in fact received contact details for a number of the persons on the flight that he said he had not, as well as the extreme nature of the orders sought. In my view, the fact that there may be room for debate as to whether there have in fact been contact details provided for some of the remaining persons does not advance the matter because, on any view, there are still some passengers in respect of whom no satisfactory contact details are available, Thus it is likely that Qantas' attendance would have been required in any event. Otherwise, the orders sought may have been severe, but I do not consider that that is a matter which warrants the making of an indemnity costs order, given the position that the plaintiff outlined as to why he was seeking those orders. 25I should also add that it should have been apparent to Qantas upon the receipt of those proposed orders that what was concerning the plaintiff was that if it truly was the position that there were no contact details available for at least some passengers, then that raises an obvious query of what would have been the position had there been some tragedy on the flight and next of kin had to be contacted. In effect, the plaintiff suggested that there was an apparent inconsistency between Qantas not being able to provide complete contact details for passengers listed on the manifest on the one hand, and the fact that it could be expected in an emergency that they would be able to contact relatives of every person on the flight on the other. Despite this suggestion being made, that apparent inconsistency remains unexplained. 26In these circumstances, the order I make is that the plaintiff pay Qantas' reasonable costs of attending this directions hearing on the ordinary basis, such costs to be payable forthwith.