Jameson v Professional Investment Services Pty Ltd

(2009) 72 NSWLR 281; [2009] NSWCA 28

NSW Court of Appeal

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Interrogate

Catchwords

1. Practice and Procedure
2. › Representative proceedings
3. › Discretion to order proceedings not continue as representative proceedings
4. › Relevant considerations
5. › Common issues of law or fact
6. › Whether primary judge failed to take into account or give sufficient weight to common issues
7. › Uniform Civil Procedure Rules 2005 (NSW), r 7.4(1)(a)(iii), r 7.4(2)
1. Practice and Procedure
2. › Representative proceedings
3. › Opt in versus opt out procedures
4. › Whether discretion constrained by preference for one system over another
5. › Distinction between Federal Court Part IVA scheme and UCPR r 7.4
6. › Uniform Civil Procedure Rules 2005 (NSW), r 7.4(2)
7. › Federal Court of Australia Act 1976 (Cth), Pt IVA
1. Practice and Procedure
2. › Representative proceedings
3. › Access to justice
4. › Litigation funding
5. › Whether access to justice a relevant consideration in exercise of discretion
6. › Uniform Civil Procedure Rules 2005 (NSW), r 7.4(2)
7. › Civil Procedure Act 2005 (NSW), ss 56, 57
1. Appeal
2. › Appellate review of discretionary decisions
3. › House v The King principles
4. › Whether primary judge failed to give weight or sufficient weight to relevant considerations
5. › Whether primary judge acted on wrong principle

Quick Take

Under UCPR r 7.4(2), there is no presumption in favour of 'opt out' over 'opt in' representative proceedings. The Federal Court Part IVA jurisprudence on class action procedure, including the reasoning in Dorajay, is not applicable to the NSW rules. Access to justice, including the practical likelihood that claims would not proceed without litigation funding, is a relevant consideration entitled to significant weight in the exercise of the discretion. The required content of a Product Disclosure Statement under ss 1013D(1)(c) and 1013E of the Corporations Act raises objectively stated requirements that constitute substantial common issues of fact not dependent on individual circumstances.