Supreme Court New South Wales Medium Neutral Citation: Lam v Rolls Royce PLC (No 3) [2014] NSWSC 657 Hearing dates: 23 May 2014 Decision date: 23 May 2014 Jurisdiction: Common Law Before: Beech-Jones J Decision: Pursuant to s 183 of the Civil Procedure Act 2005 (NSW), order that paragraph 15 of the statement of claim be amended by adding the following words at the end thereof, namely "except M. Mahendran, Gloria Ubedafortuny and Zuzana Kent". Catchwords: CLASS ACTIONS - whether Court can and should exclude specific person from description of class. Legislation Cited: - Civil Procedure Act 2005 (NSW), Pt 10, s 157(1), s 183 Cases Cited: - Lam v Rolls Royce PLC [2013] NSWSC 805 - Lam v Rolls Royce PLC (No 2) [2014] NSWSC 204 Category: Interlocutory applications Parties: Sandy Lam (Plaintiff) Rolls Royce PLC Reg No 4706930 (Defendant) Representation: Counsel: J.E. Rowe (Plaintiff) N.E. Chen (Defendant) Solicitors: LHD Lawyers (Plaintiff) Holman Fenwick Willan (Defendant) File Number(s): 2013/037342 ex tempore Judgment 1I had previously given two interlocutory judgments in these proceedings, namely Lam v Rolls Royce PLC [2013] NSWSC 805 ("Lam (No 1)") and Lam v Rolls Royce PLC (No 2) [2014] NSWSC 204 ("Lam (No 2)"). In Lam (No 1), at [3] to [7], I described the background to these proceedings, which I will not repeat. In Lam (No 2) I made various orders designed to facilitate the plaintiff's legal representatives obtaining further contact details for the passengers and crew of Flight QF 32. Since Lam (No 2), it seems that a significant amount of further work has been done in an effort to obtain those details. 2The point has been arrived at that there are contact details for all bar three persons. There is, however, a question as to whether some of the people for whom contact details have been obtained are receiving correspondence from the plaintiff's solicitors. This judgment is not specifically directed to the position of those persons. 3As I have previously indicated, one of the features of this class action is that at least the outer boundaries of the class are known, in that it is restricted to the passengers and crew on Flight QF 32. A further feature is that those persons are not only residents in Australia but some are residents overseas. This means that, in terms of the service of opt-out notices and the like, a reasonably focused notice regime must be put in place. Generally, advertising by means such as television or even placing notices on websites is likely to be ineffective and a waste of resources. 4In Lam (No 2) at [4], I recorded that I had floated the possibility with the parties of redefining the class as set out in paragraph 15 of the statement of claim. One possibility I floated was the prospect of "specifically carving them out of the description of the class", the reference to "them" being persons for whom no contact details were available. The utility in doing this is to avoid imposing on the plaintiff the cost of attempting to give opt-out notices and the like to such persons, while at the same time not affecting their rights by risking them being involved in a class action of which they do not receive notice. 5Counsel for the plaintiff, Mr Rowe, as I understand it, accepts the practicalities of this course but also has a concern as to whether making some order carving out named individuals from the class would be consistent with the regime in Pt 10 of the Civil Procedure Act 2005 (NSW). Notwithstanding his concerns, I consider the Court does have that power. In this regard I note that s 157(1) refers to representative proceedings being commenced "by one or more of those persons as representing some or all of them". The reference to "some" clearly suggests that the class can be defined in terms so that it does not necessarily embrace all persons who have a claim of the kind referred to in s 157(1)(a), (b) and (c). Thus, there are examples of certain persons being specifically excluded from a class, including cases where judicial officers have apparently fallen within the description of a class, and it was considered prudent to exclude them. 6Given the difficulties that I have identified, in my view s 183 clearly authorises the court to take the step of excluding certain named individuals from a class if it is satisfied that to do so will assist the interests of justice. 7One person who could be adversely affected by the exclusion of certain named individuals from the class is the defendant, Rolls Royce, in that it may mean that it will not have the comfort of knowing that any determination by the Court on a common question binds the three individuals that are excluded. However, in this case, counsel for Rolls Royce has indicated he does not oppose the course that is suggested. It is accepted that it will facilitate the continued progress of the proceedings. 8Accordingly, pursuant to s 183 of the Civil Procedure Act 2005, I will order that paragraph 15 of the statement of claim be amended by adding the following words at the end thereof, namely "except M. Mahendran, Gloria Ubedafortuny and Zuzana Kent". ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 27 May 2014