CIVIL PROCEDURE — representative proceedings — damages of lead plaintiff determined — next stage of proceedings involving determination of claims of sample group members — application to strike out defendant’s responses to various claims of sample group members — whether defendant’s responses are an abuse of process
Quick Take
1Findings made by a trial judge in the context of assessing damages for the lead plaintiff in representative proceedings — where liability was admitted — do not necessarily preclude the defendant from raising the same or similar matters in defence of liability in respect of other group members' claims within the same proceedings, particularly where the defendant proposes to adduce different evidence and advance the matters in combination.
2The doctrine of abuse of process, as a measure of last resort exercisable only in exceptional circumstances, requires the applicant to demonstrate that the impugned defence cannot possibly succeed because the issues have already been finally determined; where there is at least an arguable basis that the issues have not been determined in the manner now proposed, the strike-out application will fail.
3In exercising the discretion to strike out quasi-pleadings in class actions, the court must weigh the dictates of justice to both parties under ss 56 and 58 of the Civil Procedure Act 2005 (NSW), including the degree of injustice from shutting out a party from running any real defence to over 100 claims.
