Representative proceedings, more commonly known as “class actions” were initially introduced into Australian law for the purpose of efficiently and cost effectively resolving legal disputes with commonalities in questions of fact and law. There are a number of advantages to class actions including:
- Provision of access to justice and compensation to a larger group of people who may not have been able to seek justice on an individual basis due to the financial viability of pursuing individual claims;
- Providing an effective mechanism for courts to resolve disputes arising out of common questions of fact and law. This minimises pressure on the courts by avoiding hundreds of claims being individually litigated, as such taking up much less of the courts time; and
- Reducing the risk of injustice by avoiding possible inconsistency that could arise in decision making if various cases, arising from similar subject matter, were to be dealt with on an individual basis by different judges or negotiated settlements.
What is a class action?
A class action has been described as, “a legal procedure which enables the claims (or part of the claims) of a number of persons against the same defendant to be determined in one suit…” This means that one or more people (Plaintiff/s) can sue on behalf of themselves and on behalf of a group of others (Group Members) who have similar claims against the same person/s (Defendant/s).
In NSW, the requirements to begin a class action are provided for in s 157 of the Civil Procedure Act 2005 (NSW) (CPA). Those requirements state that there must be a group of 7 or more people, who have claims against the same person, which arise from the same, similar or related circumstances. The claims must also give rise to a substantial common question of law or fact or in other words, there must be similar legal and factual issues to be resolved.
Defining the Group Members – the “opt out” model
In NSW the law provides for an “opt out” approach to defining the group members to a class action. This means that if you meet certain criteria, you will automatically be considered a group member unless you choose to “opt out” of the proceedings. This is dealt with by s 162 of the CPA which states that the court must provide a date that serves as a deadline by which group members must “opt out” of a class action. Once you, as a group member, are provided with notice of the commencement of the class action and your right to opt out, you may opt out by providing the court with a completed “Opt Out Notice”.
If you choose to “opt out” of a class action, you are able to pursue individual proceedings if you wish. If you do not “opt out” of the class action, you will be bound by the outcome of the proceedings, whether that be a judgment of the court or a negotiated settlement. This means that you will not be able to pursue any further legal action in relation to the claim that is the subject matter of the class action.
Settlement and distribution of funds
If you do not “opt out” of the class action, you will be entitled to share in any favourable outcome that results from a settlement or judgment. The majority of class actions are resolved by way of a settlement. However, court approval must be obtained with respect to any settlement agreement reached, to ensure that it is fair and in the interest of group members. The court also has the power to make orders with respect to the distribution of settlement funds in a class action.
Once court approval with respect to the settlement is obtained, the settlement funds will be distributed to group members by way of a settlement distribution scheme. The five main aspects of settlement distribution schemes were provided in Jarra Creek Central Packing Shed Pty Ltd v Amcor Ltd  FCA 671 and include:
- Appointment of an administrator to administer the settlement distribution scheme. The administrator is usually the Plaintiff’s lawyer as they have knowledge of the case that enables them to efficiently administer the scheme;
- Establishment of an identification and verification procedure to confirm group members;
- The development of a method to individually assess group members claims and the subsequent assessment of those claims;
- The establishment of a dispute resolution procedure to resolve any issues arising from the settlement distribution scheme; and
- Establishment of mechanisms that enable the court to monitor the settlement distribution scheme.
The settlement distribution scheme aims to ensure that group members receive a share of compensation that aligns with the degree of harm that they have suffered, in the context of all the other group members and the degree of harm that they have also suffered.
Class Action against The Cosmetic Institute
Turner Freeman is acting for hundreds of women, on a “no win, no fee” basis, who have suffered from major complications as a result of surgery in a class action against The Cosmetic Institute. You may be considered as a group member in the Cosmetic Institute class action if you satisfy the following criteria:
- You must have undergone surgery with The Cosmetic Institute, either at one of their own facilities or at one of their licenced hospitals (Concord Private Hospital, Holroyd Hospital or Southport Day Surgery); and
- You must have suffered an “injury”.
In any class action, it is important that you put your hand up to be counted. For this reason, we invite you to register your interest in the class action against The Cosmetic Institute with Turner Freeman Lawyers. Following your registration, one of our lawyers will be in touch with you.
If you have any questions, you can contact Sally Gleeson, Medical Negligence Partner on (02) 8222 3333.
 Mulheron R, The Class Action in Common Law Legal Systems: A Comparative Perspective (Hart Publishing, 2004) P 3.