Amom v State of New South Wales [2016] NSWSC 1900

Supreme Court New South Wales

Medium Neutral Citation: Amom v State of New South Wales [2016] NSWSC 1900 Hearing dates: On the papers Date of orders: 21 November 2016 Decision date: 23 December 2016 Jurisdiction: Common Law Before: Garling J Decision: (1) Judgment for the defendant. (2) Pursuant to s 179 of the Civil Procedure Act 2005, this judgment affects all members of the group described in the Third Further Amended Statement of Claim other than any person who has opted out of the proceedings pursuant to s 162 of the Civil Procedure Act. (3) Each party pay his and its own costs of the proceedings. (4) All previous orders as to costs in these proceedings be, and hereby are, vacated. Catchwords: PRACTICE AND PROCEDURE – civil – representative proceedings – application for order barring group members from making or pursuing claims following settlement of the proceedings – whether the Court has the power to make such an order Legislation Cited: Civil Procedure Act 2005 Cases Cited: Johnson v Endeavour Energy [2015] NSWSC 1117 Texts Cited: Not Applicable Category: Procedural and other rulings Parties: Einpwy Amom (P) State of New South Wales (D) Representation: Counsel: C Pandolfini (P) D Villa (D)

Solicitors: Public Interest Advocacy Centre NSW Crown Solicitor's Office (D) File Number(s): 2011/187125 Publication restriction: Not Applicable

Judgment

Introduction 1. On 2 March 2016, the Court made orders pursuant to ss 173 and 185 of the Civil Procedure Act 2005 ("the Act") approving the resolution of these representative proceedings on the terms set out in a Deed of Settlement between the parties. As well, the Court approved the proposed settlement distribution scheme. 2. Clause 9.1 of the Deed of Settlement provided that once court approval to the settlement had been obtained, and the settlement distribution scheme had been finalised, the parties agreed that: "The plaintiff and all Group Members release the State … from all claims, causes of action and demands … in connection with, or in any way arising out of, the matters the subject of the proceedings." 1. The settlement scheme anticipated that, at a time after the settlement had been given effect to, the solicitors for the plaintiff would move the Court for orders: 1. dismissing the proceeding with no order as to costs; and 2. barring all Group Members from making or pursuing any claims arising out of the subject matter of the proceeding. 1. The parties agreed in clause 9.4 of the Settlement Deed that the contents of that Deed could be relied upon and pleaded by the State as a bar to the commencement of, or the maintenance of, any proceedings by either the plaintiff or any group member where the new proceedings related to the subject matter of the present settled proceedings. 2. The scheme was also intended to finalise all claims made against the State by the plaintiff and represented Group Members. 3. As is commonly the case, the description of the members of the group included people who did not receive a distribution from the Settlement Distribution Fund. This is not an unusual feature of group proceedings.