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TASMANIA
__________
SUPREME COURT CIVIL PROCEDURE
AMENDMENT BILL 2018
__________
CONTENTS
1. Short title
2. Commencement
3. Principal Act
4. Section 4 substituted
4. Supreme Court may exercise jurisdiction in
Admiralty actions
5. Section 9 amended (Application of Act)
6. Section 18 repealed
7. Section 35A inserted
35A. Interest on judgments
8. Section 38 repealed
9. Section 52 repealed
10. Part VII inserted
PART VII - Representative Proceedings
Division 1 - Preliminary
64. Interpretation
65. Application of Part
Division 2 - Commencement of representative proceedings
66. Commencement of representative proceedings
67. Standing
68. Consent to be a group member not required
69. Persons under legal incapacity
70. Originating process
71. Right of group member to opt out
[Bill 52]-II
72. Causes of action accruing after commencement of
representative proceedings
73. Situation where fewer than 7 group members
74. Distribution costs excessive
75. Court may order discontinuance of proceedings in
certain circumstances
76. Effect of discontinuance order under this Part
77. Determination of questions if not all common
78. Individual questions
79. Directions relating to commencement of further
proceedings
80. Adequacy of representation
81. Stay of execution in certain circumstances
82. Approval of Court required for settlement or
discontinuance
83. Settlement of individual claim of representative
party
Division 3 - Notices
84. Notice to be given of certain matters
85. Notices under section 84
Division 4 - Powers of Court
86. Judgment - powers of Court
87. Constitution, &c., of fund
88. Effect of judgment
Division 5 - Appeals
89. Appeals
Division 6 - Miscellaneous
89A. Costs
89B. Suspension of limitation periods
89C. General power of Court to make orders
89D. Reimbursement of representative party's costs
11. Section 195 amended (Rules of Court)
12. Section 197 amended (Power of judges to make Rules of Court)
13. Repeal of Act
2
SUPREME COURT CIVIL PROCEDURE
AMENDMENT BILL 2018
This Public Bill originated in the House of Assembly, and, having this day passed, is
now ready for presentation to the Legislative Council for its concurrence.
SHANE DONNELLY, Clerk of the House
29 November 2018
(Brought in by the Minister for Justice, the Honourable Elise
Nicole Archer)
A BILL FOR
An Act to amend the Supreme Court Civil Procedure Act
1932
Be it enacted by Her Excellency the Governor of Tasmania, by
and with the advice and consent of the Legislative Council and
House of Assembly, in Parliament assembled, as follows:
1. Short title
This Act may be cited as the Supreme Court
Civil Procedure Amendment Act 2018.
2. Commencement
This Act commences on the day on which this
Act receives the Royal Assent.
[Bill 52] 3
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3. Principal Act
In this Act, the Supreme Court Civil Procedure
Act 1932* is referred to as the Principal Act.
4. Section 4 substituted
Section 4 of the Principal Act is repealed and the
following section is substituted:
4. Supreme Court may exercise jurisdiction in
Admiralty actions
The Supreme Court may exercise the
jurisdiction conferred on it in relation to
Admiralty causes and matters by or
under the Admiralty Act 1988 of the
Commonwealth.
5. Section 9 amended (Application of Act)
Section 9(5) of the Principal Act is amended by
omitting "pursuant to the Colonial Courts of
Admiralty Act 1890, or some later Imperial Act;
and the Rules of Court shall not (except as
provided by the Colonial Courts of Admiralty
Act 1890, or some later Imperial Act) be
construed as extending to matters relating to the
slave trade." and substituting "under the
Admiralty Act 1988 of the Commonwealth.".
_______________________________________________________________
*No. 58 of 1932
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6. Section 18 repealed
Section 18 of the Principal Act is repealed.
7. Section 35A inserted
After section 35 of the Principal Act, the
following section is inserted in Part IV:
35A. Interest on judgments
(1) Unless otherwise agreed by the parties or
provided for under section 34 or 35, the
court or a judge, when making a
judgment requiring the payment of an
amount of money, may order that the
amount, or part of the amount, carries
interest at rate not exceeding the
prescribed rate for the whole or any part
of the period commencing on the day
after the day on which the cause of action
arose and ending on the day on which the
judgment is entered.
(2) Subsection (1) does not -
(a) authorise the giving of interest on
interest; or
(b) apply in relation to any amount
on which interest is payable as of
right whether because of an
agreement or otherwise; or
(c) affect the damages recoverable
for the dishonour of a bill of
exchange; or
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(d) limit the operation of any other
enactment or rule of law
providing for the award of
interest.
(3) For the purposes of subsection (1), the
prescribed rate is the rate per centum per
annum that is from time to time specified
in the Rules of Court.
8. Section 38 repealed
Section 38 of the Principal Act is repealed.
9. Section 52 repealed
Section 52 of the Principal Act is repealed.
10. Part VII inserted
After section 63 of the Principal Act, the
following Part is inserted:
PART VII - REPRESENTATIVE PROCEEDINGS
Division 1 - Preliminary
64. Interpretation
In this Part -
group member means a member of a
group of persons on whose behalf
representative proceedings have
been commenced;
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proceedings means proceedings in the
Court, other than criminal
proceedings;
representative party means a person
who commences representative
proceedings;
representative proceedings means
proceedings commenced under
section 66(1);
sub-group member means a person
included in a sub-group
established under section 77;
sub-group representative party means
a person appointed to be a sub-
group representative party under
section 77.
65. Application of Part
This Part applies to proceedings
commenced after the commencement of
this section, whether the cause of action
arose before, or arises after, that
commencement.
Division 2 - Commencement of representative proceedings
66. Commencement of representative
proceedings
(1) Subject to this Part, if -
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(a) 7 or more persons have claims
against the same person; and
(b) the claims of all those persons are
in respect of, or arise out of, the
same, similar or related
circumstances; and
(c) the claims of all those persons
give rise to a substantial common
question of law or fact -
proceedings may be commenced by one
or more of those persons as representing
some or all of them.
(2) Representative proceedings may be
commenced -
(a) whether or not the relief sought -
(i) is, or includes, equitable
relief; or
(ii) consists of, or includes,
damages; or
(iii) includes claims for
damages that would
require individual
assessment; or
(iv) is the same for each
person represented; and
(b) whether or not the proceedings -
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(i) are concerned with
separate contracts or
transactions between the
defendant in the
proceedings and
individual group
members; or
(ii) involve separate acts or
omissions of the
defendant done or omitted
to be done in relation to
individual group
members.
67. Standing
(1) For the purposes of section 66(1)(a), a
person has a sufficient interest to
commence representative proceedings
against another person on behalf of other
persons if the person has standing to
commence proceedings on the person's
own behalf against that other person.
(2) The person may commence
representative proceedings on behalf of
other persons against more than one
defendant, whether or not the person and
each of those persons have a claim
against every defendant in the
proceedings.
(3) If a person has commenced
representative proceedings, that person
retains standing -
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(a) to continue the proceedings; and
(b) to bring an appeal from a
judgment in the proceedings -
even though the person ceases to have a
claim against any defendant.
68. Consent to be a group member not required
(1) Subject to subsection (2), the consent of
a person to be a group member is not
required.
(2) None of the following is a group member
in representative proceedings unless the
person gives consent in writing to being
so:
(a) the Commonwealth, a State or a
Territory;
(b) a Minister of the Commonwealth,
a State or a Territory;
(c) a body corporate established for a
public purpose by a law of the
Commonwealth, a State or a
Territory, other than an
incorporated company or
incorporated association;
(d) an officer of the Commonwealth,
a State or a Territory, in his or her
capacity as an officer.
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69. Persons under legal incapacity
(1) In this section -
substitute decision-maker means a
person who has a legal right or
legal obligation to make decisions
for another person.
(2) It is not necessary for a person under
legal incapacity to have a substitute
decision-maker merely in order to be a
group member.
(3) A group member who is a person under
legal incapacity may only take a step in
representative proceedings, or conduct
part of the proceedings, by means of the
member's substitute decision-maker.
70. Originating process
(1) The originating process in representative
proceedings, or a document filed in
support of the originating process, must -
(a) describe or otherwise identify the
group members to whom the
proceedings relate; and
(b) specify the nature of the claims
made on behalf of the group
members and the relief claimed;
and
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(c) specify the question of law or
facts common to the claims of the
group members; and
(d) include any other matters
required by the Rules of Court to
be included.
(2) In describing or otherwise identifying
group members for the purposes of
subsection (1), it is not necessary to
name, or specify the number of, group
members.
71. Right of group member to opt out
(1) The Court is to fix a date before which a
group member may opt out of
representative proceedings in the Court.
(2) A group member may opt out of the
representative proceedings by written
notice given before the date so fixed.
(3) The Court may, on application by a
group member, the representative party
or the defendant in the proceedings, fix
another date so as to extend the period
during which a group member may opt
out of the representative proceedings.
(4) Except with the leave of the Court, the
hearing of representative proceedings
must not commence earlier than the date
before which a group member may opt
out of the proceedings.
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72. Causes of action accruing after
commencement of representative
proceedings
(1) On application by the representative
party made at any stage of representative
proceedings, the Court may give leave to
amend the originating process that
commenced the representative
proceedings so as to alter the description
of the group.
(2) The description of the group may be
altered so as to include a person -
(a) whose cause of action accrued
after the commencement of the
representative proceedings but
before such date as the Court
fixes when giving leave under
subsection (1); and
(b) who would have been included in
the group, or with the consent of
the person would have been
included in the group, if the cause
of action had accrued before the
commencement of the
proceedings.
(3) The date fixed under subsection (2)(a)
may be the date on which leave is given
or another date.
(4) If the Court gives leave under
subsection (1), it may also make any
other orders it thinks just, including an
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order relating to the giving of notice to
persons who, as a result of the
amendment, will be included in the group
and the date before which such persons
may opt out of the proceedings.
73. Situation where fewer than 7 group
members
If, at any stage of representative
proceedings, it appears likely to the
Court that there are fewer than 7 group
members, the Court, on such conditions
(if any) as it thinks fit, may order that the
proceedings continue under this Part or
order that the proceedings no longer
continue under this Part.
74. Distribution costs excessive
If -
(a) the relief claimed in
representative proceedings is or
includes payment of money to
group members (otherwise than
in respect of costs); and
(b) on application by the defendant,
the Court concludes that it is
likely that, if judgment were to be
given in favour of the
representative party, the cost to
the defendant of identifying the
group members and distributing
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to them the amounts ordered to be
paid to them would be excessive
having regard to the likely total of
those amounts -
the Court, by order, may direct that the
proceedings no longer continue under
this Part or stay the proceedings so far as
they relate to relief of the kind referred to
in paragraph (a).
75. Court may order discontinuance of
proceedings in certain circumstances
(1) The Court, on application by the
defendant or of its own motion, may
order that representative proceedings no
longer continue under this Part if it is
satisfied that it is in the interests of
justice to do so because -
(a) the costs that would be incurred,
should the proceedings continue
as representative proceedings, are
likely to exceed the costs that
would be incurred if each group
member conducted a separate
proceeding; or
(b) all the relief sought can be
obtained by means of proceedings
other than representative
proceedings under this Part; or
(c) the representative proceedings
will not provide an efficient and
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effective means of dealing with
the claims of group members; or
(d) a representative party is not able
to adequately represent the
interests of the group members;
or
(e) it is otherwise inappropriate that
the claims be pursued by means
of representative proceedings.
(2) For the purposes of subsection (1)(e), it
is not inappropriate for claims to be
pursued by means of representative
proceedings merely because the persons
identified as group members in relation
to the proceedings -
(a) do not include all persons on
whose behalf those proceedings
might have been brought; or
(b) are aggregated together for a
particular purpose such as a
litigation funding arrangement.
(3) If the Court dismisses an application
under this section, the Court may order
that no further application under this
section be made by the defendant except
with the leave of the Court.
(4) Leave for the purposes of subsection (3)
may be granted subject to such
conditions as to costs as the Court
considers just.
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76. Effect of discontinuance order under this
Part
(1) If the Court makes an order under
section 73, 74 or 75 that representative
proceedings no longer continue under
this Part -
(a) the proceedings may be continued
as proceedings by the
representative party on the party's
own behalf against the defendant;
and
(b) on the application of a person
who was a group member for the
purposes of the representative
proceedings, the Court may order
that the person be joined as an
applicant in the proceedings.
(2) In this section -
applicant, in relation to proceedings,
includes a claimant or plaintiff in
the proceedings.
77. Determination of questions if not all
common
(1) If it appears to the Court that
determination of the question or
questions common to all group members
will not finally determine the claims of
all group members, the Court may give
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directions in relation to the determination
of the remaining questions.
(2) In the case of questions common to the
claims of some only of the group
members, the directions given by the
Court may include directions establishing
a sub-group consisting of those group
members and appointing a person to be
the sub-group representative party on
behalf of the sub-group members.
78. Individual questions
(1) In giving directions under section 77, the
Court may permit an individual group
member to appear in the proceedings for
the purpose of determining a question
that relates only to the claims of that
member.
(2) In such a case, the individual group
member, and not the representative party,
is liable for costs associated with the
determination of the question.
79. Directions relating to commencement of
further proceedings
If a question cannot be dealt with
properly or conveniently by the Court
under section 77 or 78, the Court may
give directions for the commencement
and conduct of other proceedings,
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whether or not representative
proceedings.
80. Adequacy of representation
(1) If, on application by a group member, it
appears to the Court that a representative
party is not able to represent the interests
of the group members adequately, the
Court may substitute another group
member as representative party and make
such other orders as it thinks fit.
(2) If, on application by a sub-group
member, it appears to the Court that a
sub-group representative party is not able
to represent the interests of the sub-group
members adequately, the Court may
substitute another person as sub-group
representative party and may make such
other orders as it thinks fit.
81. Stay of execution in certain circumstances
If a defendant in representative
proceedings commences proceedings in
the Court against a group member, the
Court may order a stay of execution in
respect of any relief awarded to the group
member in the representative
proceedings until the other proceedings
are determined.
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82. Approval of Court required for settlement
or discontinuance
(1) Representative proceedings may not be
settled or discontinued without the
approval of the Court.
(2) If the Court gives such approval, it may
make such orders as are just with respect
to the distribution of any money,
including interest, paid under a
settlement or paid into the Court in
relation to the representative
proceedings.
(3) Unless the Court is satisfied that it is just
to do so, an application for approval of a
settlement of representative proceedings
may not be determined unless notice has
been given to group members in
accordance with section 84.
83. Settlement of individual claim of
representative party
(1) A representative party, with the leave of
the Court, may settle the party's
individual claim in whole or in part at
any stage of the representative
proceedings.
(2) If in representative proceedings the
representative party is seeking leave of
the Court to settle, or has settled, his or
her individual claim, the representative
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party, with the leave of the Court, may
withdraw as representative party.
(3) If a person has sought leave to withdraw
as representative party under
subsection (2), the Court, on application
by a group member, may make an order
for the substitution of another group
member as representative party and may
make such other orders as it thinks fit.
(4) Before granting, under subsection (2), a
person leave to withdraw as
representative party -
(a) the Court must be satisfied that
notice of the application has been
given to group members in
accordance with section 84(1)
and has been given in sufficient
time for them to apply to have
another person substituted as the
representative party; and
(b) any application for the
substitution of another group
member as representative party
must have been determined.
Division 3 - Notices
84. Notice to be given of certain matters
(1) Notice must be given to group members
of the following matters in relation to
representative proceedings:
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(a) the commencement of the
proceedings and the right of the
group members to opt out of the
proceedings before a specified
date, being the date fixed under
section 71(1);
(b) an application by the defendant in
the proceedings for the dismissal
of the proceedings on the ground
of want of prosecution;
(c) an application for approval of a
settlement;
(d) an application by a representative
party seeking leave to withdraw
under section 83 as representative
party.
(2) The Court may dispense with compliance
with any or all of the requirements of
subsection (1) if the relief sought in the
representative proceedings does not
include any claim for damages.
(3) If the Court so orders, notice must be
given to group members of the paying
into Court of money in answer to a cause
of action on which a claim in the
representative proceedings is founded.
(4) The Court, at any stage, may order that
notice of any matter be given to a group
member or group members.
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(5) Notice under this section must be given
as soon as practicable after the
occurrence of the event to which it
relates.
85. Notices under section 84
(1) The form and content of a notice under
section 84 are to be approved by the
Court.
(2) The Court, by order, is to specify -
(a) who is to give the notice; and
(b) the way in which the notice is to
be given.
(3) An order under subsection (2) may also
include provisions -
(a) directing a party to provide
information relevant to the giving
of the notice; and
(b) relating to the costs of giving the
notice.
(4) An order under subsection (2) may
require that notice be given by -
(a) means of press advertisement,
radio broadcast or television
broadcast; or
(b) any other means.
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(5) The Court may not order that notice be
given personally to each group member
unless it is satisfied that it is reasonably
practicable, and not unduly expensive, to
do so.
(6) A notice that concerns a matter for which
the Court's leave or approval is required
must specify the period within which a
group member or other person may apply
to the Court, or take some other step, in
relation to the matter.
(7) A notice that includes or concerns
conditions must specify the conditions
and the period, if any, for compliance.
(8) The failure of a group member to
receive, or respond to, a notice does not
affect a step taken, or an order made or
judgment given, in any proceedings.
Division 4 - Powers of Court
86. Judgment - powers of Court
(1) The Court, in determining a matter in
representative proceedings, may do any
one or more of the following:
(a) determine a question of law;
(b) determine a question of fact;
(c) make a declaration of liability;
(d) grant any equitable relief;
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(e) make an award of damages for
group members, sub-group
members or individual group
members, being damages
consisting of specified amounts
or amounts calculated in such
manner as the Court specifies;
(f) make an award of damages in an
aggregate amount without
specifying amounts awarded in
respect of individual group
members.
(2) In making an award of damages, the
Court must make provision for the
payment or distribution of the money to
the group members entitled.
(3) Subject to section 82, the Court is not to
make an award of damages under
subsection (1)(f) unless a reasonably
accurate assessment can be made of the
total amount to which group members
will be entitled under the judgment.
(4) If the Court has made an award of
damages, the Court may give such
directions (if any) as it thinks just in
relation to -
(a) the manner in which a group
member is to establish the
member's entitlement to share in
the damages; and
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(b) the manner in which any dispute
regarding the entitlement of a
group member to share in the
damages is to be determined.
(5) A judgment given in representative
proceedings is to describe or otherwise
identify the group members who will be
affected by it.
87. Constitution, &c., of fund
(1) Without limiting the operation of
section 86, in making provision for the
distribution of money to group members,
the Court may provide for -
(a) the constitution and
administration of a fund
consisting of the money to be
distributed; and
(b) either -
(i) the payment by the
defendant of a fixed sum
of money into the fund; or
(ii) the payment by the
defendant into the fund of
such instalments, and on
such terms, as the Court
directs so as to meet the
claims of group members;
and
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(c) entitlements to interest earned on
the money in the fund.
(2) The costs of administering a fund are to
be borne by the fund, or by the defendant
in the representative proceedings, or by
both, as the Court directs.
(3) If the Court orders the constitution of a
fund referred to in subsection (1), the
order is to -
(a) require notice to be given to
group members in such manner
as is specified in the order; and
(b) specify the manner in which a
group member is to make a claim
for payment out of the fund and
establish the group member's
entitlement to payment; and
(c) specify a day (which is not earlier
than 6 months after the day on
which the order is made) on or
before which the group members
are to make a claim for payment
out of the fund; and
(d) make provision in relation to the
day by which the fund is to be
distributed to group members
who have established an
entitlement to be paid out of the
fund.
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(4) The Court may allow a group member to
make a claim after the day specified
under subsection (3)(c) if -
(a) the fund has not already been
fully distributed or applied in
accordance with an order under
subsection (5); and
(b) it is just to do so.
(5) On the application of the defendant made
after the day by which the fund is to be
distributed to group members, as referred
to in subsection (3)(d), the Court may
make such orders as it thinks fit for the
payment from the fund to the defendant
of the money remaining in the fund.
88. Effect of judgment
A judgment given in representative
proceedings binds all group members
affected by it, other than any person who
has opted out of the proceedings under
section 71.
Division 5 - Appeals
89. Appeals
(1) Subject to the Rules of Court and without
limiting the application of section 40, the
following appeals from a judgment of the
Court in representative proceedings may
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be brought under that section as
representative proceedings:
(a) an appeal by the representative
party on behalf of group members
in respect of a judgment to the
extent that it relates to questions
common to the claims of the
group members;
(b) an appeal by a sub-group
representative party on behalf of
sub-group members in respect of
a judgment to the extent that it
relates to questions common to
the claims of the sub-group
members.
(2) The parties to an appeal in respect of the
determination of a question that relates
only to the claim of an individual group
member are that group member and the
defendant.
(3) If the representative party or the sub-
group representative party does not
institute an appeal within the time
allowed for doing so, another member of
the group or sub-group may, within a
further 21-day period, institute an appeal
as representing the group members or
sub-group members.
(4) If an appeal is brought from the judgment
of the Court in representative
proceedings, the Court hearing the appeal
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may direct that notice of the appeal be
given to such persons, and in such
manner, as it considers appropriate.
(5) This Part, other than section 71, applies
to appeal proceedings that relate to
representative proceedings despite any
other provisions of this Act, the provision
of any other Act or any other law.
(6) The notice instituting an appeal in
relation to questions that are common to
the claims of group members or sub-
group members must describe or
otherwise identify the group members or
sub-group members but need not specify
the names or number of those members.
Division 6 - Miscellaneous
89A. Costs
In any representative proceedings, the
Court may not award costs against a
person on whose behalf the proceedings
have been commenced (other than a
representative party) except as authorised
by section 77 or 78.
89B. Suspension of limitation periods
(1) On the commencement of any
representative proceedings, the running
of the limitation period that applies to the
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claim of a group member to which the
proceedings relate is suspended.
(2) The limitation period does not begin to
run again unless -
(a) the member opts out of the
proceedings under section 71; or
(b) the proceedings are discontinued;
or
(c) the proceedings, and any appeals
arising from the proceedings, are
determined without finally
disposing of the group member's
claim.
(3) However, nothing in this section affects
the running of a limitation period in
respect of a group member who,
immediately before the commencement
of the representative proceedings, was
barred by the expiration of that period
from commencing proceedings in the
member's own right in respect of a claim
in the representative proceedings.
(4) This section applies despite anything in
the Limitation Act 1974 or any other law.
89C. General power of Court to make orders
In any proceedings, including an appeal,
conducted under this Part, the Court, of
its own motion or on application by a
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Act No. of 2018
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party or a group member, may make any
order that the Court thinks appropriate or
necessary to ensure that justice is done in
the proceedings.
89D. Reimbursement of representative party's
costs
(1) If the Court has made an award of
damages in representative proceedings,
the representative party or a sub-group
representative party, or a person who has
been such a party, may apply to the Court
for an order under this section.
(2) If, on an application under
subsection (1), the Court is satisfied that
the costs reasonably incurred in relation
to the representative proceedings by the
applicant are likely to exceed the costs
recoverable by the applicant from the
defendant, the Court may order that an
amount equal to the whole or a part of
the excess be paid to the applicant out of
the damages awarded.
(3) On an application under subsection (1),
the Court may also make any other order
that it thinks just.
11. Section 195 amended (Rules of Court)
Section 195 of the Principal Act is amended as
follows:
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Act No. of 2018
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(a) by omitting from subsection (3)
"provisions of section 9(5)" and
substituting "Admiralty Act 1988 of the
Commonwealth and the Rules made
under section 41 of that Act,";
(b) by omitting subsection (4).
12. Section 197 amended (Power of judges to make
Rules of Court)
Section 197(1)(f) of the Principal Act is
amended by omitting subparagraph (ii) and
substituting the following subparagraph:
(ii) appeals, other than a review of a taxation
of costs by an officer of the Court; and
13. Repeal of Act
This Act is repealed on the three hundred and
sixty fifth day from the day on which it
commences.
Government Printer, Tasmania 33