De Jong v Carnival PLC [2016] NSWSC 347

De Jong v Carnival PLC [2016] NSWSC 347

The Court had power to order security for costs against Ms De Jong as representative party, but not against group members. Because Carnival had made out a reasonably strong case for security for at least some amount, and because stultification could not be assessed without information about group members' capacity and willingness to contribute, the proper course was to adjourn the motion and require the opt out material to seek that information on a proportionate basis, namely willingness and capacity to contribute 15% of the cost of the cruise or cruises paid for.

Jurisdiction
Australia
Judgment Date
01 April 2016
Procedural Posture
Representative Proceedings Under Part 10 of the Civil Procedure Act 2005 (nsw) / Defendant's Notice of Motion for Security for Costs and Approval of Opt Out Notice and Circular
Outcome
Defendant's notice of motion for security for costs adjourned; parties directed to confer about a revised opt out notice and circular including material about possible contribution to security.
Legal Topics
['security for Costs in Representative Proceedings' 'costs Immunity of Group Members' 'impecunious Representative Party' 'stultification of Proceedings' 'opt Out Notices' 'capacity and Willingness of Group Members to Contribute to Security']
['practice and Procedure' 'representative Proceedings' 'security for Costs' 'consumer Law'] ['security for Costs in Representative Proceedings' 'costs Immunity of Group Members' 'impecunious Representative Party' 'stultification of Proceedings' 'opt Out Notices' 'capacity and Willingness of Group Members to Contribute to Security']

Case Brief

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Procedural Posture

Representative Proceedings Under Part 10 of the Civil Procedure Act 2005 (nsw) / Defendant's Notice of Motion for Security for Costs and Approval of Opt Out Notice and Circular

Legal Issues

  1. 1 ['Whether the Supreme Court of New South Wales has power to order security for costs in representative proceedings under Part 10 of the Civil Procedure Act 2005 (NSW).' 'Whether security for costs can be ordered against group members or only against the representative party.' "Whether the defendant's motion should be dismissed, heard immediately, or adjourned to obtain information about group members' willingness and capacity to contribute to security." 'Whether an order for security would stultify the proceedings.' 'What information about security for costs should be included in the opt out notice and circular.']

Ratio Decidendi

The Court had power to order security for costs against Ms De Jong as representative party, but not against group members. Because Carnival had made out a reasonably strong case for security for at least some amount, and because stultification could not be assessed without information about group members' capacity and willingness to contribute, the proper course was to adjourn the motion and require the opt out material to seek that information on a proportionate basis, namely willingness and capacity to contribute 15% of the cost of the cruise or cruises paid for.

Court Disposition

Defendant's notice of motion for security for costs adjourned; parties directed to confer about a revised opt out notice and circular including material about possible contribution to security.

Orders

  • ["The Defendant's notice of motion filed 29 January 2016 be adjourned to 22 April 2015 at 9.30am before Beech-Jones J." 'The parties confer in relation to the preparation of a revised opt out notice and circular.' 'On or before 5pm on 19 April 2016, the parties file and serve either an agreed draft opt out notice,...